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2016 DIGILAW 431 (HP)

Rajesh Kumar v. Maya Devi

2016-04-06

SANJAY KAROL

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JUDGMENT : Mr. Sanjay Karol, J. Sole question, which arises for consideration in the present appeal, as is so urged, is as to who is liable to pay the amount of compensation to the claimants (respondents No. 1 & 2 herein), in terms of the impugned award dated 12.6.2015, passed by Civil Judge (Senior Division)-cum-Commissioner, Workmen Compensation, Court No. 1, Hamirpur, Himachal Pradesh, in Compensation Petition No.48/2011, titled as Maya Devi & another v. Rajesh Kumar & others. 2. Present appeal stands admitted on the following substantial question of law: "Whether the Ld. Commissioner below once coming to the conclusion that the tractor in question was duly insured has rightly absolved the Insurance Company from the liability to pay compensation?" 3. Petitioner Rajesh Kumar is the owner of the vehicle (Tractor) in question and wants the insurer to pay the amount of compensation, in terms of the Insurance Policy. 4. Certain facts are not in dispute. Deceased Manoj Kumar, an employee of appellant Rajesh Kumar, was engaged as a Cleaner on Vehicle (Tractor) No. HP-74-2586. Desh Raj (respondent No.4 herein) was engaged as a Driver thereupon. The vehicle in question was insured with National Insurance Company Ltd. (respondent No. 3 herein). 5. Two facts are undisputedly clear: (a) the employer and employee relationship between deceased Manoj Kumar and appellant Rajesh Kumar, and (b) the vehicle being insured with National Insurance Company Ltd. 6. With regard to the point in question, the Tribunal framed Issue No. 2, which reads as under: "2. Whether the deceased Manoj Kumar died during the course of employment under respondent No.1 while working as Helper on tractor No. HP74-2586? OPP" 7. To prove the same, appellant Rajesh Kumar examined Gaddi Ram (RW-1) and himself as RW-2 and Insurer did not lead any evidence. Also, the driver chose not to step into the witness box. 8. On the strength of the evidence on record, while fastening the liability upon the owner, the Tribunal returned the following findings: "14. The overall evidence as discussed above proves that deceased Manoj Kumar who was employee of respondent No. 1 Rajesh Kumar as admitted by him died in the accident when tractor was parked in the fields. 8. On the strength of the evidence on record, while fastening the liability upon the owner, the Tribunal returned the following findings: "14. The overall evidence as discussed above proves that deceased Manoj Kumar who was employee of respondent No. 1 Rajesh Kumar as admitted by him died in the accident when tractor was parked in the fields. The evidence as led by both the parties proves that there was negligence on the part of the deceased Manoj Kumar who drove the tractor without knowing the driving and without the consent of either of the owner or the driver of the tractor which resulted in to his death." "18. The respondent No.1 and respondent No. 3 have miserably failed to lead any evidence to prove that there was negligence on the part of the deceased only who drove the tractor and was himself responsible for his death. The act of respondent No. 1 and 3 of not taking care of the keys of the tractor after parking it proves that this accident occurred due to carelessness of these two persons for which insurance company cannot be held liable." 9. Having perused the record and appreciated the testimony of the material witnesses, it cannot be said that the findings are borne out from the record. It is open for this Court to re-appreciate the evidence in an appeal, filed under the provisions of Section 30 of the Workmen's Compensation Act, 1923. The findings are not based on correct appreciation of the material on record. Perversity, which is quite apparent, has resulted into travesty of justice. 10. Careful and conjoint reading of the testimonies of Gaddi Ram (RW-1) and appellant Rajesh Kumar (RW-2), coupled with the statement of Naresh Kumar (PW-2) reveals that these witnesses were present on the spot. It has also come in their testimonies that while Rajesh Kumar and driver Desh Raj were having tea nearby, deceased Manoj Kumar, who was engaged as a Cleaner, was checking the water and oil of the tractor. At at that point in time, the tractor was in the fields for ploughing the same. Quite apparently, the Cleaner, who was otherwise authorised to do so, was checking the oil of the tractor. All of a sudden the tractor fell down, as a result of which Manoj Kumar sustained injuries and later on died in the hospital. At at that point in time, the tractor was in the fields for ploughing the same. Quite apparently, the Cleaner, who was otherwise authorised to do so, was checking the oil of the tractor. All of a sudden the tractor fell down, as a result of which Manoj Kumar sustained injuries and later on died in the hospital. In the FIR, it stands recorded that the negligence, if at all, was that of the deceased and not that of driver Desh Raj or the owner. But, the fact of the matter being that the deceased, at the time of occurrence of the accident was under employment and during the course of employment, deputed for the job for which he stood employed by the owner. It cannot be said that negligence, if any, is that of the owner or the driver. 11. Undoubtedly, injury sustained by the deceased resulted into his death. As such, the employer was liable to pay the compensation, in terms of the Act. In view of the Insurance Policy (Ex.RW-2/1), which was in force as on the date of occurrence of the accident, and the case not falling within any one of the exceptions contained therein, the liability has to be that of the Insurer and not the owner. Undoubtedly, three employees of the insured stood covered in terms of the Insurance Policy. 12. It is no doubt true that the deceased was not carrying a valid driving licence at the relevant point in time. But the fact of the matter is that the injury resulted not on account of the vehicle being driven by the deceased, but the tractor turned turtle. Insofar as the compensation, under the Workmen's Compensation Act, is concerned, it would make no difference as to whether the employee was having a valid driving licence or not. The deceased sustained injury during the course of employment. 13. As such, the present appeal stands allowed and the impugned award dated 12.6.2015, passed by Civil Judge (Senior Division)-cum-Commissioner, Workmen Compensation, Court No. 1, Hamirpur, Himachal Pradesh, in Compensation Petition No. 48/2011, titled as Maya Devi & another v. Rajesh Kumar & others is modified to the extent that the liability to pay the compensation shall be that of the Insurer and not the insured. Substantial Question of Law is answered accordingly. 14. Substantial Question of Law is answered accordingly. 14. The Insurance Company is directed to deposit the amount, along with up-to-date interest, within a period of six weeks. 15. Appeal stands disposed of, so also the pending applications, if any.