Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 855 (MP)

Basant Singh v. Padam Singh

2010-08-20

N.K.MODY

body2010
JUDGMENT N.K. Mody, J. 1. Being aggrieved by the order dated 18.11.2003 passed by Commissioner for Workmen's Compensation, Labour Court, Dewas in Case No. 8/WCF/2000 whereby the petition filed by the Respondent Nos. 1 & 2 was allowed and compensation of Rs. 2,26,380/ alongwith interest @ 6% p.a. was awarded and Respondent No. 3 was exonerated, the present appeal has been filed. 2. The appeal was admitted for final hearing by this Court vide order dated 4.3.2004 on the following substantial question of law: Whether the Commissioner for Workmen's Compensation committed an error in exonerating the Insurance Company from its liability on the ground that under the Kisan Package Policy the driver was not covered. 3. Short facts of the case are that the Respondent Nos. 1 & 2 filed a petition for compensation before the learned Court below under the provisions of Workmen's Compensation Act alleging that Premnarayan who was son of Respondent Nos. 1 & 2, was in employment of Appellant as Driver and was drawing salary @ Rs. 2,500/- per month and travelling allowance @ Rs. 40/- per day. It was alleged that Appellant was owner of a tractor bearing registration No. MP/13-KA/3367. It was alleged that on 6.1.2000 when son of Respondent Nos. 1 & 2 Premnarayan was on his duty at that time met with an accident and the offending tractor was turtle down and fell into the river, with the result Premnarayan died on spot, It was alleged that at the time of death, age of deceased was 18 years. It was alleged that the offending tractor was insured with Respondent No. 3. It was prayed that compensation of Rs. 2,50,000/- be awarded. 4. The claim petition was contested by Appellant and also by Respondent No. 3 by filing separate written statement, wherein liability was disputed. In the written statement filed by Appellant it was denied that deceased was in employment of the Appellant as driver. It was prayed that the claim petition filed by the Respondent Nos. 1 & 2 be dismissed. After framing of issues and recording of evidence, learned Court below allowed the petition filed by Respondent Nos. 1 & 2 and awarded compensation as stated above, against which present appeal has been filed. 5. Learned Counsel for the Appellant argued at length and submits that the learned Court below committed error in allowing the petition filed by Respondent Nos. After framing of issues and recording of evidence, learned Court below allowed the petition filed by Respondent Nos. 1 & 2 and awarded compensation as stated above, against which present appeal has been filed. 5. Learned Counsel for the Appellant argued at length and submits that the learned Court below committed error in allowing the petition filed by Respondent Nos. 1 & 2. It is submitted that there is nothing on record on the basis of which it can be said that deceased was in employment of Appellant. It is submitted that to prove the fact Respondent No. 1 has examined himself. It is submitted that from the statement of Respondent No. 1 it is evident that deceased was minor as no documentary evidence is produced to prove the age of deceased, while he was studying. It is submitted that except bare statement of Padam Singh PW/1, there is nothing on record on the basis of which it can be said that the deceased was employed as driver. It is submitted that the driving license could have been produced by Respondent Nos. 1 & 2 to show that the deceased was employed as driver. Learned Counsel placed reliance on a decision in the matter of Divisional Manager, United India Insurance Co. Ltd. v. Gujjamma 2004 (102) FLR 693 (Kar.) wherein in a case where except self-serving statement of mother of the deceased, no evidence to the effect that there was employee-employer relationship between the deceased and owner-insured of the vehicle or that of wages paid to the deceased, in the circumstances Karnataka High Court has held that since the claimant failed to prove the factum of employment no reliance can be placed on the statement of mother as her evidence does not inspire confidence. Further reliance is placed on a decision in the matter of Oriental Insurance Co. Ltd. v. Jaswinder Singh 2009 ACJ 2723 : 2009 (2) CLR 355 (P&H) wherein owner of the vehicle specifically denied in the written statement the relationship of master and servant and the driver deposed that he had no written proof regarding his employment or salary, Punjab and Haryana High Court has held that it is not proved that there existed a relationship of master and servant between the driver and owner of vehicle. It is submitted that in the facts and circumstances of the case, there was no justification on the part of learned Court below in holding that the deceased was under employment of the Appellant. So far as exoneration of Respondent No. 3 is concerned, learned Counsel submits that since the offending vehicle was insured, therefore, there was no justification on the part of learned Court below in exonerating the Respondent No. 3. For this contention reliance is placed on a decision of Hon'ble Apex Court in the matter of National Insurance Co. Ltd. v. Prembai Patel 2005 (30) AIC 515 (SC) : 2005 ACJ 1323 wherein death of driver took place when overturned. Hon'ble Apex Court has held that the death arose out of and in the course of employment and since the vehicle was insured under 'Act liability only', therefore, the liability of Insurance Company is limited to the extent arising under Workmen's Compensation Act. Further reliance is placed on a decision of this Court in the matter of Sangitta v. Ganesh 2009 ACJ 1049 wherein dependents filed claim petition under WC Act and the Commissioner allowed the compensation against owner of the vehicle exempting Insurance Company from liability on the ground that driver's risk was not covered in the policy and the cover note refers to 'Act only'. Divisional Bench of this Court has held that Insurance Company is liable as per law under Workmen's Compensation Act. On the strength of aforesaid position of law, learned Counsel submits that appeal deserves to be allowed, as Respondent Nos. 1 & 2 failed to prove the relationship of employer and employee and in alternative the impugned order deserves to be modified, as the offending vehicle was insured. 6. Learned Counsel for the Respondent Nos. 1 and 2 supports the case of Appellant to the extent that the offending vehicle was insured and Respondent No. 3 is liable for payment of compensation. 7. Learned Counsel for Respondent No. 3 submits that no illegality has been committed by the learned Court below in exonerating the Respondent No. 3. It is submitted that the appeal filed by the Appellant be dismissed. 8. From perusal of the record it is evident that to prove that deceased was in employment of Appellant, Respondent Nos. 1 & 2 have examined Padam singh PW/1 and Sumersingh PW/2. While Appellant has examined himself. It is submitted that the appeal filed by the Appellant be dismissed. 8. From perusal of the record it is evident that to prove that deceased was in employment of Appellant, Respondent Nos. 1 & 2 have examined Padam singh PW/1 and Sumersingh PW/2. While Appellant has examined himself. In the written statement Appellant has denied the fact that deceased was in employment, but it is no where stated that how the Tractor came in to the possession of the Appellant and how the accident occurred. On the contrary all the evidence stated in the claim petition were denied. In the written statement filed by Respondent No. 3 it is alleged that the offending vehicle was being driven in violation of the terms of the policy. But to prove this fact no evidence was adduced by the Respondent No. 3. Even the witnesses examined by Respondent Nos. 1 & 2 were not cross-examined. In the FIR Ex.P/2 it is stated that at the relevant time Premnarayan was driving the tractor which fell down into the river. There is no reason to disbelieve the fact stated in FIR. Even if it is assumed that deceased was not in employment of the Appellant then too, there was no justification on the part of Appellant in not explaining that in what circumstances deceased came into the possession of the offending vehicle. Since it is not disputed by the Respondent No. 3 that the offending vehicle was insured and no evidence is on record to prove that there was violation of any terms of the policy and also there is no evidence on record to prove that under the Kisan Package Policy driver of the offending vehicle is not covered, therefore, in the facts and circumstances of the case, learned Court below committed error in exonerating the Respondent No. 3. 9. In view of this, appeal filed by the Appellant is allowed holding that the learned Commissioner for Workmen's Compensation committed an error in exonerating the Insurance Company for its liability on the ground that under Kisan Package Policy the driver was not covered. Hence, appeal filed by the Appellant is allowed and the order passed by the learned Court below is set aside so far as it relates to liability of Respondent No. 3. 10. With the aforesaid observations, appeal stands disposed of.