Sandhya Thakur vs Pavan Samdariya

A.K. Sharma, J.—Case is listed for final hearing. This miscellaneous appeal filed u/s 30 of the Workmen''s Compensation Act, 1923 has been admitted on 20.1.2010 but no substantial question of law has been framed. After hearing both the parties, following substantial question of law is framed:-

(i) Whether the Commissioner, Workmen''s Compensation, is justified in rejecting the claim by holding that the deceased Charan Singh was employed as workman with respondent no. 1?

Final arguments heard.

The claim filed by the appellants has been rejected by the learned Commissioner mainly on the ground that the deceased Charan Singh was not employed at the time of incidence with respondent no. 1. In spite of the admission of respondent no. 1 in his reply that the deceased was his driver, learned Commissioner has further held that deceased was driving the vehicle after he has stolen the vehicle, therefore, the incidence did not occur during the course of employment.

Learned Commissioner in para-3 of the award has mentioned the fact that deceased Charan Singh was working as driver with respondent no. 1 and he was paid Rs. 2500/- per month, therefore, looking to this admission, the deceased comes within the definition of workman u/s 2(1)(n) of the Workmen''s Compensation Act, 1923. Therefore, the application filed by the appellants was maintainable before the Commissioner.

The burden of proving the fact that the deceased was not on duty at the time of incidence or he has stolen the vehicle or the vehicle was driven by him under intoxication in breach of policy conditions or the vehicle was not covered under the insurance policy was on respondent/owner and the insurance company respectively but in the impugned award these facts have not been considered and no clear cut finding has been given by the learned Commissioner in this regard, therefore, the matter needs reconsideration by the Commissioner in the light of the fact that the deceased was workman under the employment of respondent no. 1 at the time of incidence. Further, the opportunity of adducing evidence in this regard has to be given to both the parties for establishing the fact that incidence took place during the course of employment or the deceased has stolen the vehicle, thereby the incident did not took place during the course of employment and further that the vehicle driven under intoxication condition by the vehicle driver, exonerates the insurance company from its liability. Furthermore, whether the vehicle was covered under the insurance for holding the insurance company liable under the Workmen''s Compensation Act, 1923.

Therefore, the appeal is allowed. The impugned award passed by the learned Commissioner is hereby set aside but the matter is remanded back to the Commissioner for deciding afresh after giving opportunity to both the parties for adducing evidence on the points mentioned above and to give finding on all the issues. Looking to the old pendency of the claim, learned Commissioner is directed to expedite the trial and pass the order as early as possible. Parties are directed to appear before the Commissioner for participating in the proceedings on 2.9.2013, for which, no notice shall be issued to them by the Commissioner. Record of the Commissioner be sent back.