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2012 DIGILAW 298 (HP)

Oriental Insurance Company v. Bhagat Singh

2012-05-22

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud,J. The Insurance Company has appealed against the award passed by the Commissioner under the Workmen’s Compensation Act, 1923, awarding a sum of Rs.4,31,160/- to the claimants for the death of Shri Kuldeep Singh son of the claimants.The appeal wasadmitted on the following substantial question of law:- “1. Whether the workmen compensation commissioner without there being any documentary evidence on record with regard to the income of the deceased had the jurisdiction to take the income to be Rs.4000/- per month which is the maximum income which could be taken under law.”2. The facts as adjudicated by the Commissioner are that the deceased Kuldeep Singh son of the claimants was engaged as a driver by respondent Devinder Singh. The accidented vehicle HP-08-0327 was insured with the appellant herein. The fatal accident occurred near Neoti on the intervening night of 30th/31st August, 2002 when the deceased was driving the vehicle during the course of his employment. FIR No.72 of 2002 was registered on 31.3.2002 with Police Post Nerwa (Chopal) . It is undisputed that the deceased died on the spot because of the fatal injuries received by him. It was pleaded by the claimants that the deceased was being paid salary of Rs.5,500/- per month. In addition, he was getting Rs.50/- per day for food etc. The claim petition was contested by the Insurance Company and on the pleadings of the parties, four issues were settled.3. Adverting to the first issue, which relates to the claim of the petitioners, the Commissioner, on the evidence on record, concluded that the accident took place during the course of his employment. On the evidence on record, Commissioner notes that though the owner denies that the salary of Rs.5,500/- per month was given to him, but admitted that he was paying Rs.3,800/- per month and Rs.50/- per day for food etc. On issue No.4 that the vehicle was being driven in violation of the policy as the driver did not possess a valid driving licence, the Commissioner holds that no evidence was led by the appellant herein. The owner had summoned the record from the Registering and Licensing Authority, Rajgarh which shows that he was in possession of a valid driving licence. Compensation as noticed was granted.4. The owner had summoned the record from the Registering and Licensing Authority, Rajgarh which shows that he was in possession of a valid driving licence. Compensation as noticed was granted.4. Learned Senior Counsel for the appellant urges that question No.1 should also be taken for consideration by this Court as it is question of law settled by the Supreme Court. I cannot accede to this submission for the reasons that the appeal was admitted only on Question No.2. However, all that I have to say on question No.1 is that in Sita Ram vs. Satvinder Singh and Another, Latest HLJ 2008(HP) 1110, Hon’ble Deepak Gupta, J, taking into consideration the decision of the Supreme Court in Partap Narain Singh Deo vs. Shrinias Sabata and another, AIR 1976 SC 222, has answered the question holding that the interest should be payable from the date of institution and not from the date of award.5.A Division Bench of the High Court of Calcutta in Sarbeswar Bhuimali vs. Ardhendu Kumar Roy and another, 2010 ACJ 2125, following the decisions in Partap Narain Singh Deo’s case and Kerala State Electricity Board vs. Valsala K., 2000 ACJ 5 (SC), has reached at the same conclusion. The decisions in National Insurance Co.Ltd. vs. Mubasir Ahmed, 2007 ACJ 845 (SC), and Kamla Chaturvedi vs. National Insurance Co.Ltd., 2009 ACJ 115 (SC) were distinguished by Their Lordships. 6. Adverting to the second question, I must observe at the outset that what has been awarded is a question of fact determined by the Commissioner. It is not as if the Commissioner has assumed a figure which cannot be sustained. Learned Senior Counsel submits that the amounts of Rs.5500/- per month and Rs.50/- per day were not being paid to the deceased as admitted by the employer. I cannot accept this submission. When the statement of the employer is read as a whole, it is apparent and evident that sum of Rs.3800/- per month and Rs.50/- per day were being paid to the deceased. In any event, in United India Insurance company Ltd. vs. Kaushalaya Devi & Others, III (2006) ACC 285, the Court holds:-“1. This appeal has been filed against award given by the Commissioner, under the Workmen’s Compensation Act, 1923, vide which for death of Kali Ram, an amount of Rs.4,30,560/- has been granted. Claimants are widow, minor children and parents of the deceased. This appeal has been filed against award given by the Commissioner, under the Workmen’s Compensation Act, 1923, vide which for death of Kali Ram, an amount of Rs.4,30,560/- has been granted. Claimants are widow, minor children and parents of the deceased. It is not in dispute that the deceased was working as a truck driver and he was sent to deliver the goods and on the way he had suffered heart attack and died. Relationship of master and servant between respondent No.6 and the deceased is proved on record. This Court feels that death has occurred in the course of employment. So far as quantum of compensation is concerned, the same is reasonable, as the age of the deceased was only 26 years, he was drawing a salary of Rs.4,000/- per month. Counsel for the appellant states that there is no proof on record, that the deceased was drawing that much salary, as has been held by the court below. Be that as it may, it is known fact that in these days, no driver can be employed for less than Rs.4,000/- p.m. This Court feels that the truck drivers are rather getting more salary. 2.In view of facts mentioned above, no case is made out for interference in pure findings of fact as Counsel has failed to raise any substantial question of law at the time of arguments. 3.Dismissed.” (p.285)7.On the question of daily allowance, which is paid to a workman, this Court in National Insurance Company Ltd. vs. Sh.Prem Singh and Others, Latest HLJ 2009 (HP) 675 holds on the precedent that such allowance is to be counted for the purposes of calculating the wages/salaries of the driver. I am not persuaded to hold that the wages earned by the deceased have not been proved on the record of the case. This question is, therefore, answered against the appellant. This appeal is dismissed. No order as to costs.