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Himachal Pradesh High Court · body

2015 DIGILAW 1590 (HP)

United India Insurance Company Ltd. v. Heem Dassi

2015-10-29

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. 1. In this appeal, the insurer has assailed the award dated 30.4.2008 passed by the Commissioner Workmen's Compensation Act, Kullu, Sub Division, Kullu, in Case No. 3 of 2001, titled as Smt. Heem Dassi and Another v. Sh. Dola Ram and Another. The appeal stands admitted on the following substantial questions of law:- "1. Whether the findings returned by the Commissioner Workmen Compensation is a result of wrong application and interpretation of provisions of law and mis-appreciation of material on record? 2. Whether while awarding compensation, income of deceased was wrongly taken to be Rs. 2500/- per month without any proof and since the accident had occurred on 25.8.2000 i.e. prior to coming into force of Workmen's Compensation (Amendment) Act, 2000 (which came into force on 8.12.2000), per Explanation II of Section 4 of the Workmen's Compensation Act, the monthly wages of deceased were required to be taken as Rs. 2000/- and after multiplication of Rs. 1000/- (50% of the wages as per Section 4(1)(a) of the Act) with the relevant multiplication factor of 221.37 (at the age of 21 years), the compensation amount payable to the claimants was required to be worked out as Rs. 2,21,370/- instead of Rs. 2,78,388/- as awarded to the claimants?" 2. Certain facts are not in dispute. On 25.8.2000 Gian Chand (deceased) was driving tractor bearing No. HP34-3513, owned by Dola Ram (respondent No. 3 herein), insured with United India Insurance Company Ltd. (appellant herein). The tractor met with an accident as a result of which Gian Chand died. His legal heirs (respondents No. 1 and 2 herein) claimed compensation by filing a petition under the provisions of the Workmen's Compensation Act, 1923. 3. The petition stood resisted inter alia on the following grounds that: (i) There was no employee - employer relationship between Gian Chand and Dola Ram; (ii) The vehicle was being driven by Gian Chand without any authorization. In fact, it was stolen by the deceased; and (iii) The deceased was not having any valid driving licence. 4. Resistance to the petition led to the framing of the following issues: "(1) Whether the deceased was workman? OPP (2) Whether the deceased died during the course of Employment? OPP (3) Whether the applicants are entitled for the compensation? OPP (4) Relief." 5. 4. Resistance to the petition led to the framing of the following issues: "(1) Whether the deceased was workman? OPP (2) Whether the deceased died during the course of Employment? OPP (3) Whether the applicants are entitled for the compensation? OPP (4) Relief." 5. Vide impugned award dated 30.4.2008, Commissioner Workmen's Compensation decided the issues in favour of the claimants and awarded compensation of a sum of Rs. 2,78,388/- along with interest @ 12%. The liability stood fastened upon the insurer. 6. At the threshold it be only observed that the issue with regard to the deceased not possessing any valid or effective driving licence was not pressed by the contesting parties. As such, it would not be open for the insurer to canvas the same at this stage. 7. No doubt in the reply, owner has disputed any employer - employee relationship with the deceased. But then, from the testimony of Dalip Singh (Court witness) it is evident that on 25.8.2000, both he and Gian Chand were plying the tractor as employees of Dola Ram. Gian Chand was the driver and Dalip Singh was the helper. Dola Ram does not dispute that Dalip Singh was his employee. His version with regard to non employment of Gian Chand is not only uninspiring in confidence but in fact stands belied by Dalip Singh who un-controvertedly states that two years prior to the accident Gian Chand was in the regular employment of Dola Ram and even on the date of the accident, deceased was driving the vehicle only on the asking and under authorization of the owner. The tractor was plied throughout the day. Goods and articles were loaded and unloaded at different places. Significantly in the F.I.R. (Ext. PW-2/A) also it stands recorded that Gian Chand was the driver of the tractor. 8. Version of the owner that the tractor was stolen by Gian Chand is only an afterthought, for no immediate complaint was lodged and the first complaint (Ext. RW-4/A) came to be lodged only on 30.1.2001. It is also not the case of the owner that his complaint eventually proved such fact. The delay of five months (approximately) only belies the version of the owner. 9. From the perusal of the testimony of the claimants as also Dalip Singh the employer-employee relationship stands proved on record. 10. Insofar as the quantum of compensation is concerned, Mr. It is also not the case of the owner that his complaint eventually proved such fact. The delay of five months (approximately) only belies the version of the owner. 9. From the perusal of the testimony of the claimants as also Dalip Singh the employer-employee relationship stands proved on record. 10. Insofar as the quantum of compensation is concerned, Mr. Ashwani Sharma, learned Senior Counsel is right in contending that the Commissioner Workmen's Compensation erred in applying the correct provisions of law. The accident took place on 25.8.2000, prior to coming into force of the Workmen's Compensation (Amendment) Act, 2000 w.e.f. 8.12.2000. In terms of Section 4 of the Workmen's Compensation Act, monthly wages of the deceased, as per the prescribed schedule, could not have been taken to be more than Rs. 2000/-. It is here that the Commissioner committed an error by taking the monthly wages of the deceased to be Rs.2500/-. 11. As such, by applying the formula and taking into account the multiplication factor, considering the age of the deceased who was of 21 years, claimants are held entitled to a sum of Rs.2,21,370/- instead of Rs.2,78,388/-. To this extent, impugned award dated 30.4.2008, passed by the Commissioner Workmen's Compensation Act Kullu, Sub Division Kullu, in Case No. 3 of 2001, titled as Smt. Heem Dassi and another v. Sh. Dola Ram and Another, stands modified. The amount already stands deposited by the insurer who shall be entitled to refund of the excess amount along with proportionate interest thereupon. The appeal stands disposed of accordingly, as also the pending applications, if any.