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2017 DIGILAW 1356 (HP)

NATIONAL INSURANCE CO. LTD. v. DILA CHAND

2017-12-07

DHARAM CHAND CHAUDHARY

body2017
JUDGMENT : Dharam Chand Chaudhary, J. 1. Order dated 22.6.2007 passed by the Commissioner Under the Workmen's Compensation Act, in case No. 1/2005 is under challenge in the present appeal on the grounds, inter alia, that the deceased was travelling in the ill fated Jeep in the capacity of a gratuitous passenger and not labourer. There being no relation of employer and employee between the owner of the vehicle respondent No. 1 and that the deceased died during the course of his employment, the claim petition was not maintainable. The same according to the Insurer-appellant should have been dismissed and no compensation awarded to the respondents-claimants. 2. The appeal has been admitted on the following substantial question of law: Whether the claim in respect of death of deceased who was cleaner in the jeep was not tenable and payable by the insurer? 3. On having gone through the record of this case and taking into consideration the submissions made on both sides, admittedly the Jeep bearing registration No. HP-260072 met with an accident near Ogli Tehsil Suni, District Shimla on 28.1.2005 and three passengers including its owner Suresh Kumar, Surender Kumar and one Dharam Dass died in this accident on the spot itself. Respondents No. 1 and 2 herein are the parents of deceased Surender. They preferred claim petition under the provisions of Workmen's Compensation Act. The same was resisted and contested on behalf of respondent No. 2-appellant, the National Insurance Company on the grounds, inter alia ,that the deceased being not employer with ill fated Jeep and rather travelling therein in the capacity of gratuitous passenger, the claimants are not entitled to the award of any compensation. 4. Learned Commissioner below on the basis of the evidence produced by the parties on both sides has, however, held that deceased Surender was an employee of the owner of the Jeep namely Suresh Kumar who also died in this accident and also that he was on duty at the time of accident. The petition, as such, was held maintainable. The objections that the ill fated vehicle was being driven by deceased Suresh Kumar without holding a valid and effective driving license and that deceased Surender was travelling in the vehicle in the capacity of a gratuitous passenger was rejected. A sum of Rs. 5,62,338/-was, therefore, awarded as compensation to the petitioners. 5. The petition, as such, was held maintainable. The objections that the ill fated vehicle was being driven by deceased Suresh Kumar without holding a valid and effective driving license and that deceased Surender was travelling in the vehicle in the capacity of a gratuitous passenger was rejected. A sum of Rs. 5,62,338/-was, therefore, awarded as compensation to the petitioners. 5. Now if coming to the legality and validity of the finding so recorded by learned Commissioner below and the substantial question of law as formulated in the present appeal, Shri Dila Chand petitioner-respondent No. 1 while in the witness box as PW1 has stated that the owner of the Jeep Suresh Kumar has employed his son Surender as labourer. The vegetables were being transported in the Jeep from Chandigarh and sold at different places up to Kinnaur. True it is that as per his statement in cross-examination conducted on behalf of respondent No. 2-appellant he expressed his inability to produce any record pertaining to the deployment of his son Surender as labourer with the ill fated Jeep and also qua his wages. However, the presence of deceased Surender in the Jeep at the time of accident is sufficient to believe that he was there in the capacity of a labourer and not travelling as gratuitous passenger. The onus was on the Insurer respondent No. 2-appellant to prove that what prompted the deceased to travel in the Jeep had he not been engaged as labourer by its owner. 6. Interestingly enough, Smt. Shanti Devi RW1 who is respondent No. 1 in the claim petition is wife of Suresh Kumar, the owner of the Jeep. She has also stated that deceased Surender was engaged as labourer by her husband. One word in her cross-examination that deceased was cleaner which too has occurred while answering a suggestion put to her on behalf of respondent No. 2-Insurer cannot be believed to arrived at a conclusion that Surender was not working as Labourer but cleaner that too when petitioner No. 1 and respondent No. 1 while in the witness box as PW1 and RW1 respectively have categorically stated that the deceased was engaged as labourer by the owner of the Jeep. In the claim petition also, it is averred that deceased Surender was working as labourer with the ill fated Jeep. In the claim petition also, it is averred that deceased Surender was working as labourer with the ill fated Jeep. True it is, that respondent No. 2-Insurer has claimed that he was travelling gratuitously in the ill fated Jeep. However, without there being any proof in this regard and to the contrary claimed that he was working as cleaner. Respondent No. 2-Insurer, as such, has failed to prove to the contrary that deceased Surender was not working as labourer with the ill fated Jeep. 7. Being so, no substantial question of law arise in this appeal for determination what to speak of the question of law as aforesaid framed. The appeal without any merit is, therefore, dismissed and the impugned order is made absolute. 8. Pending application(s), if any, shall also stand disposed of.