Oriental Insurance Co. Ltd. @APPELLANT@Hash Prem Nath And Ors

This is an appeal filed by Oriental Insurance Company Limited in terms of Section 30 of the Employees Compensation Act, 1923 against the award

of the Commissioner Workmen (Assistant Labour Commissioner), Jammu dated 30.05.2011 passed in the case titled Prem Nath and ors. Vs. M/s

Sital Singh Isher Singh and anr.Â

Briefly stated, the facts leading to the filing of this appeal are thus:-

The deceased-Sat Paul, who was employed as a driver to drive vehicle No. JK02A-4478 (Water Tanker) met with an accident while he was driving

the aforesaid vehicle between Soungare and Chasana. In the accident, the deceased-Sat Paul suffered grievous injuries to which he later on

succumbed. A claim petition was filed by the parents and two brothers of the deceased before the Commissioner, Workmen’s Compensation Act,

Jammu (hereinafter referred to as “the Commissionerâ€). In the claim petition, the claimants pleaded that the deceased-Sat Paul was employed as

a driver by one Ranjeet Singh, Shop No. 47, Yard No. 2, Narwal, Jammu and was getting salary of Rs. 6,000/ per month as wages. It was, thus

claimed that since the deceased had died during and in the course of his employment, as such, they were entitled to compensation to the tune of Rs. 5

lacs.Â

On being put on notice, the respondents appeared before the Commissioner and filed their objections. The appellant-insurance company filed its

separate objections in which the defence taken was that the deceased-Sat Paul had not died during and in the course of employment with respondent

No. 5 and, therefore, the insurance company was not liable to pay any compensation. The appellant-insurance company also took other usual

objections. On the basis of pleadings of the parties, the Commissioner framed the following issues:-

(i) Whether the deceased Sat Paul falls under the definition of Workman as prescribed under the Workmen’s Compensation Act, 1923. (OPP)

(ii) Whether the deceased met with an accident arising out of land in the course of his employment for the respondent No. 1 i.e M/s Sital Singh, Isher

Singh, Ware House, Jammu. (OPP).

(iii) What was the age and wages of deceased at the time of accident. (OPP).

(iv) Whether the vehicle in question was driven in violation of terms and conditions of the insurance Policy at the time of accident. (OPR-2).

(v)Relief.Â

To support the claim, the claimants examined Prem Nath (one of the claimant) and Mohan Singh as their witness. However, no witness in rebuttal

was produced by the appellant-insurance company. Prem Nathclaimant, during his examination stated that his son was working as driver with M/s

Sital Singh, Isher Singh for the last two years and was driving the vehicle in question. He further stated that his son was getting a monthly salary of

Rs. 6,000/- from the aforesaid firm. His son Sat Paul died due to the accident while he was driving the vehicle in question and was deployed to provide

water to the Army at Chasana, Tehsil Mahore.

He also claimed that deceased, at the time of death, was 24 years old and was holding a valid driving licence. He was cross-examined by the learned

counsel for the appellant-insurance company and in his crossexamination , it was stated by the claimant-Prem Nath that his deceased son was holding

a valid driving licence and as per the licence, the date of birth of the deceased was 01.01.1980. He, however, could not tell as to who was the

partner/proprietor of the firm. The other witness of the claimant, Mohan Singh stated that the deceased-Sat Paul while he was driving water tanker in

question and was carrying water as per the instructions of his employer firm, he met with an accident between Soungare and Chasana due to some

mechanical failure. He also stated that the deceased was under employment of respondent No. 5 and was getting monthly salary of Rs. 6,000/-. In his

cross-examination by the learned counsel for the appellant-insurance company, the witness stated that he was not aware of the person who was

paying salary to the deceased nor was he aware about the owner of the vehicle. This is the pith and substance of the evidence recorded on behalf of

the claimant. As already stated, there is no evidence led by the appellant-insurance company in rebuttal.

The Commissioner upon appreciation of evidence on record, returned a finding that the deceased-Sat Paul was a driver employed by respondent

No. 5 on his water tanker and therefore, an employee as defined under Section 2 (1) (dd) of the Employees Compensation Act, 1923. The

Commissioner also found that the accident took place while he was driving a water tanker in question and therefore, during and in the course of his

employment with respondent No. 5. The Commissioner, however, did not agree with the claimants that the deceased was receiving salary of Rs.

6,000/- per month and instead took the monthly salary as Rs. 4,000/ per month for the purpose of computing the compensation. The Commissioner also

found on facts that the deceased was also holding a valid driving licence. Admittedly, the water tanker in question was insured with the appellant-

insurance company and therefore, the company was held liable to indemnify the insurer for the amount of compensation payable to the claimants.

Finally, the Commissioner awarded a sum of  Rs. 4,36,940/- in all as compensation to the claimants with the direction to deposit the same within

30 days after the announcement of the award.Â

It is this award of compensation passed by the Commissioner which is assailed by the appellant-insurance company on the grounds hereinafter

mentioned:-

(i) That the awarded amount is not sustainable as the Commissioner has erroneously held that relationship of employee and employer existed between

the deceased Sat Paul and respondent No. 5.Â

(ii) That the accident had not occurred during and in the course of employment of the insurer, i.e, respondent No. 5.

Having heard learned counsel for the parties and perused the record, it is true, as pointed out by the learned counsel for the appellant that initially,

the claim petition was filed against one Ranjeet Singh but later on he was deleted from the array of the respondents and was substituted by M/s Sital

Singh, Isher Singh. Even the insurance company had been wrongly impleaded in the beginning but thereafter, the appellant-insurance company with

which the vehicle in question had been insured also came to be pleaded. It is because of this reason, the learned counsel for the appellant contends

that there was no relationship of employee and employer between the deceased-Sat Paul and respondent No. 5.Â

The argument, on the face of it, appears to be attractive but on close scrutiny is found to be without any substance. Who was the owner of the

vehicle in question and who was paying salary to the deceased were the facts which could have been better known to the deceased. The illiterate

parents of the deceased and his brother only knew that the deceased was employed as driver to drive the vehicle which was owned by someone

having the address Shop No. 47, Yard No. 2, Narwal, Jammu. They initially named Ranjeet Singh as owner but later on found that Ranjeet Singh was

only an employee, whereas, the vehicle in question was owned by the firm, i.e, respondent No. 5. It is, for this reason, respondent No. 5 came to be

pleaded subsequently. It is not in dispute that the registered owner of the vehicle is respondent No. 5 and not Ranjeet Singh. There is no contrary

material on record to indicate otherwise. It is also not in dispute that the vehicle aforesaid, at the time of accident, was insured with the appellant-

insurance company. The accident took place when the vehicle in question, which was being driven by the deceased, rolled down between Soungare

and Chasana.Â

In the face of aforesaid admitted position, it would be totally unfair on the part of the appellant-insurance company to contend that the evidence on

record was not sufficient to conclude that there was relationship of employee and employer between the deceased and respondent No. 5 or that

accident did not take place during and in the course of employment with respondent No. 5.Â

I find no infirmity or illegality in the findings of fact returned by the Commissioner upon appreciation of evidence brought before him by the parties.

At the cost of repetition, it may be stated that the appellantinsurance company did not lead any evidence in rebuttal and that being so, the

Commissioner had no option, but to rely upon and believe the un rebutted evidence of the claimants. There is, however, an error committed by the

Commissioner while taking the age of the deceased into consideration.

It is well established on the record and is otherwise apparent from the statement of the claimant-Prem Nath that as per the date of birth mentioned

on the licence, i.e, 01.01.1980, the deceased was 26 years old. It is this age which the tribunal should have taken into consideration for working out the

compensation in terms of Section 4 (1) read with Schedule IV and Sub-Section 3 (a) of Section 4 A of the Employees Compensation Act, 1923.Â

In view of the established fact that deceased, at the time of death was 26 years old, the compensation payable to the claimants needs to be

modified.Â

Accordingly, the claimants are held entitled to a sum of Rs. 4,30,560/-. The Commissioner, Employees Compensation Act, before whom the

compensation has been deposited shall release the aforesaid payment in favour of the claimants forthwith and balance remaining, if any, shall be

refunded to appellant-insurance company.Â

Accordingly, the award passed by the Commissioner is modified to the aforesaid extent and the appeal is disposed of. Â