Oriental Insurance Company Ltd vs Pushpa Devi & Ors

Tarlok Singh Chauhan, J

Aggrieved by the award passed by the Workmen Compensation Commissioner, the appellantÂ​Insurance Company has filed the instant appeal.

Brief facts giving rise to the instant appeal are that the claimants/respondents No. 1 to 4 being legal heirs of late Krishan Kumar filed a petition

before the Workmen Compensation Commissioner claiming therein compensation on account of death of Krishan Kumar. It was averred that late

Krishan Kumar, son of Narender Singh was driver by profession and employed to drive truck TATA LP bearing registration No. HP62Â0387, which

was owned by respondent No.5 Leela Devi. His monthly salary was stated to be Rs.7000/Â and he was also being paid Rs.100/Â daily for his meal

and other expenses. On 15.10.2008, Krishan Kumar was driving the truck from Chandigarh to Karcham and at about 9.00 P.M. met with an accident

near Petrol Pump at Kandaghat, District Solan. As a result of this accident, he sustained multiple injuries. He was taken to Civil Hospital, where he

was declared brought dead. The postmortem was conducted on 16.10.2008 and at the same time, an FIR No. 96/2008 came to be registered at Police

Station, Kandaghat.

The appellant/Insurance Company contested the claim petition by filing reply raising therein preliminary objections regarding maintainability, cause

of action with further plea that Krishan Kumar was not driver of the vehicle in question at the relevant time. On merits, it was pleaded that Krishan

Kumar was not employed as driver by respondent No.5 and, therefore, legal heirs of Krishan Kumar were not entitled to any compensation.

Respondent No.5, owner of the truck, in her reply, admitted that Krishan Kumar was employed as driver by her on monthly salary of Rs. 6000/Â‐

and in addition thereto, Rs.100/Â was being given to him towards daily expenses. It was averred that on the fateful day, Krishan Kumar stopped the

vehicle near Dhan Laxmi, Kandaghat and climbed on the top of the truck. While tightening the rope of the truck, he fell down and received multiple

injuries.

5 Learned Commissioner on 22.3.2010 framed the following issues:Â​

Whether. the. petitioners. are. entitled. For compensation as alleged? OPP

Whether the present petition is not maintainable in the present form? OPRÂ​1

Whether the petitioners have no cause of action? OPRÂ​1

Whether the deceased Krishan Kumar was not driving the vehicle at the time of accident ? OPR 1 5.Relief.

After recording the evidence and evaluating the same, the learned Commissioner vide award dated 29.5.2012, allowed the claim petition by

awarding compensation, in favour of the claimants, to the tune of Rs.4,27,140/Â along with interest @ 12% per annum w.e.f. 15.11.2008 till the

realization of the entire awarded amount and Rs.5000/Â towards funeral charges to be paid by the Insurance Company constraining it to file the

instant appeal.

On 31.7.2012, the instant appeal came to be admitted on the following substantial questions of law:

Whether the learned Commissioner has wrongly come to the conclusion that there was a relationship of employer and employee intrer se the

deceased Krishan Kumar and liability could have fastened upon the Insurance Company.

Whether the learned Commissioner has wrongly come to the conclusion that there was a breach of terms and conditions of the policy as regards

the driver clause?

It is vehemently argued by Mr. Ashwani K. Sharma, learned Senior Advocate assisted by Mr. Ishan Sharma, Advocate, that since the death of late

Krishan Kumar was not incidental to the employment and merely an accident, therefore, the Insurance Company cannot be held liable to pay the

compensation. In addition thereto, it is argued that it was the deceased himself who was negligent as he had left the keys in the truck and, therefore,

no liability could have been fastened upon the Insurance company.

Strong reliance in support of such submissions is placed on the judgment of Calcutta High Court in Quraisha Bibi vs. Shipping Corporation of India

Ltd., 2004(3) TAC 599 and the judgment of the Hon'ble Supreme Court in Jawahar. Singh vs. Bala Jain & ors., 2011 (6) SCC 425.

Lastly, it is contended that there is no relationship of employer and employee inter se the deceased Krishan Kumar and respondent No.5, Smt. Leela

Devi, and since there was breach in terms and conditions of the policy, therefore, liability could not have been fastened upon the Insurance Company.

I have heard the learned counsel for the parties and have also gone through the records of the case carefully.

SUBSTANTIAL QUESTIONS OF LAW NO. 1 T& 2:

Since both the substantial questions of law are intrinsically interlinked and interconnected, therefore, the same were taken up together for

consideration and are being answered by common reasoning.

It would be noticed that entire emphasis of the appellantÂInsurance Company's argument with regard to Krishan Kumar not driving the vehicle at

the relevant time is based upon the contents of FIR, Ext. PW4/1, wherein it is mentioned that the deceased had gone to tie rope of the truck, when the

conductor started the engine, as a result, he fell down and sustained grievous injuries. However, noticeably, author of the FIR has not stepped into

witness box, rather the coÂoccupant, PW3 Sunil Kumar, who was eye witness of the occurrence, has specifically stated that he was inside the truck,

when Sandeep Kumar conductor raised noise from outside that the driver had fallen from the truck. Thereafter, he came out from the truck and took

him to Civil Hospital Kandaghat. He categorily denied that the truck was being driven by Sandeep Kumar at the time of occurrence. It is only the FIR,

which states that deceased driver had gone to tighten the rope of the truck and in the mean time Sandeep Kumar drove the truck resulting in the fall of

Krishan Kumar.

Here, it also needs to be noticed that no doubt Sandeep Kumar was tried for criminal case registered against him under Sections 279 and 304ÂA

of the Indian Penal Code, but was acquitted on the ground that there was no direct or substantial evidence on record to prove that he was driving the

truck.

The Insurance company was required to lead clear, cogent and convincing evidence to prove that deceased Krishan Kumar died due to driving of

Sandeep Kumar and in absence of such evidence, it cannot be held that death of Krishan Kumar was not incidental to his employment or that it was

accidental as claimed by the Insurance Company.

As regards plea that there was no relationship of employer and employee, there is ample evidence available on record that owner of the vehicle

Smt. Leela Devi had engaged the services of the deceased as Driver on monthly salary of Rs.6000/Â and apart from this, Rs. 100/Â daily allowance

was being given by her to deceased Krishan Kumar.

In view of aforesaid discussion, I see no reason to interfere. with. the. award. passed. by. the. Learned Commissioner below and accordingly, the

same is upheld.

The instant appeal stands dismissed, in the aforesaid terms, so also the pending application(s), if any, leaving the parties to bear their own costs.