Oriental Insurance Company Ltd @APPELLANT@Hash Raja And Ors

The appellant- Insurance Company has preferred this civil misc. appeal under Section 30 of the Workmen’s Compensation Act, 1923 (hereinafter

referred to as “the Actâ€) against the impugned judgment dated 24.10.2005 passed by learned Commissioner Workmen Compensation, Tonk in

claim Case No. W.C.C.F. 29/2001 (Raja vs. Jadoo @ Ramsawroop And Ors.) whereby an award for Rs. 1,79,200/- along with interest @ 12 % per

annum from 26th July, 2001 has been passed in favour of the deceased- respondent- Smt. Raja and against the appellant-Insurance Company.

The brief relevant facts for the disposal of this appeal are that the respondent- deceased Smt. Raja wife of Ram Narayan filed a claim petition on

26.07.2001 against the appellant-Insurance Company and respondent No.- 2 Jadoo @ Ramsawroop & No.- 3 Rajju Singh claiming compensation on

account of loss suffered by her due to the death of her son Omprakash caused in an accident allegedly occurred on 10.06.2000 when he was working

under the instructions of respondent No.- 2 Jadoo @ Ramsawroop & No.- 3 Rajju Singh on a trolly which was attached with the tractor bearing

registration No. R.J.X. 1535, which at the time of alleged accident was being used for loading, transporting and unloading the soil. According to the

respondent- deceased, when he was loading the soil on the trolly attached with the tractor, all of sudden the soil fell down on Omprakash, due to it he

lost his life.

The appellant as well as respondent No. 2 & 3 filed their respective reply to the claim petition and it was averred by them that there was no

relationship of employer and employee between the respondent No. 2 & 3. It was further averred by respondent No. 2 & 3, registered owner of

tractor that on the day of accident, tractor was not there on spot, rather it was in stationary position at the residence of insured respondent No.- 2. The

appellant- Insurance Company also averred that the tractor trolly in question was neither registered nor insured with the appellant- Insurance

Company at the time of alleged accident. It was further pleaded that by way of Insurance policy only the risk of the driver of the tractor was covered

under the provisions of the Act and as the deceased was not a driver of the said tractor and no premium was charged by the appellant to cover the

risk of any other person including the deceased, the appellant is not liable to pay compensation.

On the basis of pleadings, necessary issues were framed by the learned Commissioner. Oral as well as documentary evidence was produced and

after hearing the respective parties, the learned Commissioner partly allowed the claim petition of respondent-claimant vide impugned judgment dated

24.10.2005 in aforesaid terms.

Learned counsel for the respondents submits that payment has already been made to claimant.

I have heard the learned counsel for the respective parties and also gone through the record made available for my perusal as well as the relevant

legal provisions and the case law relied upon by the parties.

Section 30 of the Act provides that an appeal can be filed only on substantial question of law.

While at the time of admission on 22.03.2012, co-ordinate

Bench of this Court framed following substantial question of law :-

“Whether there was any relationship of employer and employee between the deceased and the respondents owners of the vehicle in question and

as to whether the appellant Insurance Company could be made liable for the compensation, when admittedly no premium covering the risk under the

policy was paid by the owners.â€​

So far as relationship of respondent No. 2 & 3 with deceased is concerned, it is pleaded in the claim petition that :-

“e`rd vkseizdk’k iq= jkeukjk;.k tkfr xwtZj vizkFkhZ la-1 o 2 ds VªsDVj vkj-ts-,Dl- 1535 ij feV~Vh Hkjus] mrkjus dk dk;Z djrk FkkA fnukad

10-06-2000 dks fnu ds 12-30 ij izfrfnu dh Hkkafr ml fnu Hkh Vªd la0 vkj-ts-,Dl- 1535 ij feV~Vh Hkjus o [ksr esa Mkyus gsrq vU/ksjh ckx iqjkuh

Vksad esa x;k gqvk FkkA e`rd vkseizdk’k ls vizkFkhZx.k feV~Vh [kqnokdj Hkjok jgs Fks rHkh vpkud feV~Vh ds uhps ncus ls mldh e`R;q gks

xbZAâ€​

For which, respondent No. 1 & 2 denied in their reply.

In evidence, AW-1- claimant who is mother of deceased Omprakash stated that :-

“tc esjk yMdk ejk rc mldh mez 22 o""kZ FkhA og tknw o jTtw ds VªSDVj ij dke djrk FkkA [ksrh dk dke djrk FkkA jTtw o tknw mldks tcjnLrh dke

ij ys x;k vU/ksjk ckoMh esa og ej x;kA cMh lkjh feV~Vh dh jTtw o tknw us feV~Vh Hkjus ds fy, dgkA esjk yMdk feV~Vh Hkjus yx x;kA rc feV~Vh ds During cross- examination it was suggested by the respondent No. 2 & 3 to this witness AW- 1 that “VªSDVj ekfyd ukSdjh djrk gSAÂ

esjk yMdk vkseizdk’k o nks vkneh vU; feV~Vh esa ncdj ejs FksAâ€​ For which, she stated that it is correct.

AW-1 submitted and proved the Police investigation papers, postmortem report and charge-sheet etc. to corroborate her statement. Respondent No.-2

Jadoo @ Ramsawroop and No.- 3 Rajju Singh though denied the aforesaid facts but the statement of AW- 1- claimant corroborates with the Police

investigation, Police filed charge-sheet against the Kishanlal son of Ramkaran and Jadoo @ Ramsawroop for offence under Sections 304-A, 337 &

338 IPC and in charge-sheet after investigation it was found that at the time of accident Omprakash was brought by Jadoo @ Ramsawroop for

loading and unloading the soil on the trolly attached with the tractor.

Respondent- Rajju Singh in reply to notice under Section 133 of M.V. Act issued by the Investigating Officer stated that “esjs VªsDVj ua0 vkj-ts-

,Dl 1535 ij MªkbZoj esjk NksVk HkkbZ tknw mQZ jkeLo:i fuoklh Nkouh Vksad gS rFkk fnukad 10-06-2000 dks ogh VªSDVj pyk jgk FkkAâ€​

Therefore, the statement of AW- 1 respondent- claimant corroborates with the Police investigation and reply submitted by respondent- tractor owner

to the notice under Section 133 of M.V. Act. In his statement tractor owner- respondent- Rajju Singh states that tractor was in stationary position at

his residence while in Exhibit- 5, reply to notice under Section 133 M.V. Act, it is

specifically stated that “Jhekuth esjs VªsDVj ua0 vkj-ts-,Dl 1535 ij MªkbZoj esjk NksVk HkkbZ tknw mQZ jkeLo:i fuoklh Nkouh Vksad gS

rFkk fnukad 10-06-2000 dks ogh VªSDVj pyk jgk FkkAâ€, which is contrary to his oral statement, therefore the statements of respondents are

seems not reliable.

Considering the aforesaid material learned Commissioner also reached on the conclusion that deceased was in employment of respondent No. 2 & 3

at the time of said accident, therefore this finding doesn’t require any interference by this Court.

Learned counsel for the appellant- Insurance Company relied on National Insurance Company Limited, Tiruchengode vs. Santhamani And Another

reported in 2009 (2) TN MAC 154 but in this case, claimants’ case was that her husband/deceased, working under respondent No. 2 as lorry

driver, developed chest pain due to heavy workload and died during course of employment.

But in appeal, the Single Bench of Madras High Court held that except death certificate no document produced on side of claimant, no document such

as trip sheet, etc. filed to show that deceased had gone to Andhra Pradesh on duty by driving lorry on crucial day. In absence thereof, the Single

Bench of Madras High Court observed that there was no nexus between the death and work of the deceased workmen, therefore the facts of this

case are also altogether different from the present case, which doesn’t help the appellant- Insurance Company.

So far as liability of Insurance Company is concerned.

In the matter of National Insurance Company Limited vs. Bommithi Subbhayamma And Others reported in (2005) 12 SCC 243 while interpreting the

provision enshrined in Section 147 (1) (b) of M.V. Act, 1988 Hon’ble Supreme Court held that statutory liability of insurer under Section 147 (1)

(b) of M.V. Act doesn’t cover gratuitous passengers carried in a goods vehicle.

But in the case in hand, neither there is any pleading regarding gratuitous passenger nor deceased was found as gratuitous passenger in the tractor

which was being used as goods vehicle, therefore this case law also doesn’t help the appellant-Insurance Company.

In the matter of New India Assurance Company Limited vs. Vedwati And Others reported in (2007) 9 SCC 486, it was held by Hon’ble Supreme

Court that liability of insurer to pay compensation under Section 147 of M.V. Act does not extend to cases of death of, or bodily injury to, the owner of

goods or his authorised representative carried in a goods vehicle, which is not disputed but again in the present case, this case law does not help the

appellant because deceased- Omprakash was not travelling in a goods vehicle being an owner of goods or authorised representative of the owner of

goods in a goods vehicle, therefore the facts of this case law are also distinguishable from the present case.

In the matter of Mamtaj Bi Bapusab Nadaf And Others vs. United India Insurance Company And Others reported in (2010) 10 SCC 536, two

labourers climbed grocery pit in order to clean the same for storing maize and while cleaning, they fell into the pit and died due to asphyxia.

In these circumstances, Hon’ble Supreme Court observed that at the time of accident vehicle was not in operation and was not involved in the

accident and there was no proximate or direct connection of death of the workmen with the vehicle.

But in the case in hand, since deceased was working as labour while loading and unloading the soil on the tractor trolly, therefore this case law also

does not help the appellant- Insurance Company.

In the matter of United India Insurance Company Limited vs. Shankar Lal And Anr. reported in 2012 (1) DNJ 233, co-ordinate Bench of this Court

while interpreting Section 22 of Workmen’s Compensation Act, 1923 and Section 147 (1) Motor Vehicles Act, 1988, while considering the facts

that workman sustained injuries while working on thresher attached with tractor and tractor was comprehensively insured with the appellant Insurance

Company and it was held that Insurance Company is liable to pay compensation. It was further held in this case that premium paid for covering risk on

one employee and workman working on thresher attached with the tractor sustained injuries. Insurance Company disputes its liability on ground that

tractor was insured only for one person i.e., the driver.

In such circumstances, it was held that in the present case, as the insurance policy does not specifically cover only the driver of the tractor, therefore,

it should be held that any employee working on the tractor or on the thresher attached to the tractor is covered under the policy and the appellant-

Insurance Company is liable to pay compensation.

In the present case also deceased was working for loading the tractor trolly by soil and at the time of loading the alleged accident took place, therefore

there is reasonable nexus between the death and employment of deceased. Accordingly, it cannot be said that Insurance Company is not liable.

Not only this, since Insurance Company failed to produce on record the original policy and IMT thereof to prove its liability, in absence thereof

adverse inference should be drawn against the Insurance Company as per explanation (g) of Section 114 of The Indian Evidence Act, 1872, which

reads as under :-

“That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.â€​

Apart from it, from the perusal of cover note (Exhibit-10) on one place the risk covered is for one passenger and on other place carrying capacity is

one driver only, therefore two different statements are given, therefore it can be interpreted like this that one driver and one passenger liability is

covered by the Insurance Company.

The substantial question of law is answered accordingly, therefore this appeal devoids merit which is hereby dismissed and the impugned judgment is

affirmed.

Record of the Court below be returned with the copy of the judgment.