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2015 DIGILAW 1825 (HP)

Oriental Insurance Company v. Vrinda Devi

2015-12-09

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. 1. Appeal stands admitted on the following substantial questions of law: 1. Whether it has been proved on the record that the deceased was a workman as per provisions of the Workmen Compensation Act and died while he was driving the vehicle during the course of his employment? 2. Whether in the case of a petition under the Workmen Compensation Act, it is not required that the deceased should possess a valid and effective driving licence at the time of accident to make the Insurance Company liable to pay the compensation. 3. Whether in the facts and circumstances of the case it has been proved on the record that the deceased died in the accident during the course of his employment with respondent No. 5? 2. On 3.3.2003, vehicle owned by Surinder Singh (respondent No. 5 herein), driven by his brother Mohender Singh (deceased), met with an accident, as a result of which Mohender Singh died. Claimants (respondents No. 1 to 4 herein), as his legal heirs, filed a petition for grant of compensation, under the Workmen Compensation Act, in which compensation in the following terms stands awarded: "For reasons recorded herein above all the issues are decided in favour of the applicants and application for compensation is accepted. Compensation amount is awarded at the age of factor of 32 years, wages Rs. 4000/- with interest @12% is granted keeping in view the judgement passed in FAO No. 145 of 1998 decided on 26.5.2005, which shall be paid by the respondent No. 2 to the defendants of the deceased Workman as calculated hereunder: 1. Compensation award on age factor 32 years 2000/-X203.85 = 4,07,700 2. Interest @ 12% w.e.f. (03.04.2003 to 22.05.2007) = 1,95,696 Total = 6,03,396 3. Assailing the award dated 22.5.2007, passed by Workmen Compensation Commissioner, Rampur Bushahr, District Shimla, Himachal Pradesh, in Case No. 4/05 (3/06), titled as Vrinda Devi & others v. Surinder Singh & another, Mr. G.C. Gupta, learned Senior Advocate, appearing for the Insurer, refers to and relies upon the decisions rendered in Gottumukkala Appala Narasimha Raju and others v. National Insurance Co. Ltd. and another, 2007 ACJ 1025 ; Oriental Insurance Co. v. Santosh Devi and another, 2011 (Suppl.) Him L.R. 1715; and Brahmu Ram and another v. United India Insurance Company and another, 2009 (2) Shim.LC 26 . 4. Ltd. and another, 2007 ACJ 1025 ; Oriental Insurance Co. v. Santosh Devi and another, 2011 (Suppl.) Him L.R. 1715; and Brahmu Ram and another v. United India Insurance Company and another, 2009 (2) Shim.LC 26 . 4. On the other hand, while supporting the award, Mr. Raman Sethi, learned counsel appearing for the claimants, refers to and relies upon the decisions rendered in T.S. Shylaja v. Oriental Insurance Company & another, I (2014) ACC 132 (SC); and Oriental Insurance Company v. Deepa & others, III (2014) 218 (HP). 5. At the threshold, it be only observed that the cases referred to and relied upon by Mr. G.C. Gupta, learned Senior Advocate, are not applicable to the given facts and circumstances. 6. Noticeably, the claimants, in the claim petition, have categorically averred that Mohender Singh was employed by Surinder Singh as a driver. The vehicle in question was insured with the Insurer. Mohender Singh, at the time of accident, which took place on 3.3.2003, was on duty and died on the spot. Report was instantly lodged with the police and FIR No. 17, dated 3.3.2003 was registered at Police Station, Ani, District Kullu, Himachal Pradesh. Claimants being dependents and legal heirs were entitled for just and fair compensation. 7. In response to the petition, the owner not only admitted contents of the application, but also categorically asserted such fact. 8. Significantly, in response to the petition, Insurer did not plead collusion or fraud and except for mere denial with regard to the factum of employment or death having occurred during the course of employment, did not make any assertions. 9. Record reveals that the factum of employment and death having taken place during the course of employment, as a result of the accident, stands established through the evidence led by the claimants. Whereas no evidence whatsoever was led by the Insurer, but however, the owner stepped into the witness box and proved the factum of employment and the driver possessing a valid and effective driving licence. It is in this backdrop that the decisions in T.S. Shylaja (supra) and Deepa (supra), referred to and relied upon by the learned counsel for the claimants, are squarely applicable to the instant facts. 10. It is in this backdrop that the decisions in T.S. Shylaja (supra) and Deepa (supra), referred to and relied upon by the learned counsel for the claimants, are squarely applicable to the instant facts. 10. The initial burden of proving the factum of employment and death having taken place during the course of employment stood discharged by the claimants, hence it was for the Insurer to disprove the same. 11. Even in Gottumukkala (supra), the Court has acknowledged certain fact situations, where even a husband can be under employment of the wife. 12. Hence, it cannot be said that the claimants have failed to prove that the deceased was a workman or did die during the course of employment or that he did possess a valid and effective driving licence at the time of occurrence of the accident. Substantial questions of law are answered accordingly. 13. Appeal stands disposed of, so also the pending applications, if any.