JUDGMENT : Tarlok Singh Chauhan, J. The instant appeal has been admitted on the following substantial questions of law:- 1. Whether the Ld. Commissioner while passing impugned order erred in awarding huge compensation amount to the claimants/respondents No. 1 to 3 payable by the appellant/insurer when from the material and evidence on record, it was proved that owner/insured used to pay Rs.2500/- as the monthly salary to deceased and his income taken @ Rs.9000/- per month was based on guesswork without any basis and therefore, is the compensation amount is liable to be slashed considerably? 2. Whether the offending vehicle registered and insured as a private vehicle, was used as taxi at the time of accident and thus, vehicle was being used for commercial purpose for hire and reward without valid permit which was against the terms & conditions of the insurance policy and this disentitled owner/insured to claim indemnification of claim under policy of insurance? 3. Whether insured vehicle at the time of accident was driven by decided driver in the inebriated condition. If so, on this ground too, owner/insured was disqualified to get indemnified of liability of payment of compensation to the claimants? 2. However, before proceeding to determine the aforesaid questions certain minimal facts need to be noticed. 3. The respondents No. 1 to 5/claimants, filed a claim petition under Section 22 of the Employee's Compensation Act seeking compensation of Rs.25,00,000/- along with 50% penalty and interest @ 12% per annum before the learned Commissioner on account of death of their sole bread earner, namely, Jai Prakash averring therein that the deceased was driver by profession and he was engaged by respondent No.6/employer as driver on his vehicle bearing registration No. HP-14-A-0919 on monthly salary of Rs.6000/-. Besides that the deceased was getting Rs. 100/- per day as daily expenses. On 26.12.2012, when the deceased was driving the aforesaid vehicle, at about 5.40 P.M., it met with an accident near Bus Stand Sarahan at Nahan-Shimla Road, resulting into death of the deceased. It was further averred that the accident had taken place during the course of the employment of the deceased with respondent No.6. 4. On 26.12.2012, when the deceased was driving the aforesaid vehicle, at about 5.40 P.M., it met with an accident near Bus Stand Sarahan at Nahan-Shimla Road, resulting into death of the deceased. It was further averred that the accident had taken place during the course of the employment of the deceased with respondent No.6. 4. The respondent No.6/employer, who is owner of the vehicle in question, contested the petition, wherein he did not deny the involvement of his vehicle in the accident at the relevant date and time, but denied that the deceased was getting salary of Rs.6000/- per month plus Rs.100/-as daily expenses. 5. The appellant-Insurance Company filed its separate reply, wherein preliminary objections were taken to the effect that there was no relationship of employer and employee between the deceased and respondent No.6, private vehicle was being used for commercial use, the driver of the vehicle was not possessing valid and effective driving licence, thus, the vehicle in question was being plied in violation of terms and conditions of the insurance policy. On merits, the Insurance Company after reiterating and elaborating preliminary objections denied the salary of the deceased to be Rs.6000/-per month plus Rs.100/- per day as daily expenses and alleged that the deceased had consumed liquor at the time of accident and, therefore, the vehicle was being plied at the time of accident in contravention of standard policy of insurance. 6. On 21.11.2013, the learned Commissioner framed the following issues:- 1. Whether the deceased Jai Prakash being driver of Mahindra Scorpio No. HP-14A-0919 owned by respondent No.1 Ishwar Dutt Sharma who died in the course of his employment under respondent No.1 on the evening of 26.11.2013 around 5.45 P.M. at Bye Pass Sarahan, as alleged? 2. Whether the deceased was getting Rs.6000/- per month as salary and besides this Rs.1000/- as daily wage from respondent No.1, as alleged? OPP 3. Whether the petitioners being dependents of deceased Jai Prakash are entitled for compensation as alleged?OPP 4. Whether the petitioners spent more than Rs.50,000/- for the transportation of dead body and last rites of the deceased as alleged? 5. Whether the petitioners are estopped from filing the present petition on account of this act and conduct? OPR-1. 6. Whether the petitioners have not approached with clean hand to this Court?OPR-1 7. Whether the petitioners spent more than Rs.50,000/- for the transportation of dead body and last rites of the deceased as alleged? 5. Whether the petitioners are estopped from filing the present petition on account of this act and conduct? OPR-1. 6. Whether the petitioners have not approached with clean hand to this Court?OPR-1 7. Whether there is no relationship of employee and employer between the deceased Jai Prakash and respondent as alleged?OPR-2 8. Whether the petition of the petitioners has been filed in collusion with the respondent No.1?OPR-2 9. Whether the respondent No.1 and deceased have violated the terms and conditions of the insurance policy, as alleged?OPR-2 10. Relief. 7. After recording the evidence and evaluating the same, the learned Commissioner below vide order dated 30.5.2017 allowed the petition and awarded the compensation of Rs.9,02,300/- along with interest @ 12% per annum. 8. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. Substantial question of law No.1 9. Adverting to the facts of the present case, it has come in the pleadings of claimants that the deceased was getting salary of Rs.6000/- per month apart from Rs.100/- as daily allowance. This averment has been duly substantiated in the affidavit, Ext. PW1/A filed by wife of the deceased, Jyoti Kumari in her examination-in-chief. 10. Though, the employer and Insurance Company have in their respective replies denied the monthly salary of the deceased to be Rs.6000/- plus Rs.100 as daily allowance, however, the employer while appearing in the witness box as RW1 failed to bring on record salary slip of the deceased or any receipt issued by the deceased or his account books to show that he used to pay monthly salary of Rs.2500/- against the one claimed by the claimants. 11. In view of Section 106 of the Indian Evidence Act, salary paid to the deceased was within the knowledge of the employer, therefore, burden was upon the owner to prove the exact monthly salary paid to the deceased before his death. 12. In taking this view, I am supported by the judgment of the learned Single Judge of Bombay High Court in First Appeal No. 399/2007, titled as Navnath Kishanrao Nakhate and anr. vs. Ganesh Shivaji Godke and anr., decided on 14.12.2018, wherein it was held as under:- "8. 12. In taking this view, I am supported by the judgment of the learned Single Judge of Bombay High Court in First Appeal No. 399/2007, titled as Navnath Kishanrao Nakhate and anr. vs. Ganesh Shivaji Godke and anr., decided on 14.12.2018, wherein it was held as under:- "8. No doubt, after going through the claim submitted by the employer to respondent No.2 -Insurance Company after the accident (Exh.44), it becomes clear that the employer has admitted monthly salary of deceased at the rate of Rs.2,000/- per month and Bhatta at the rate of Rs.1,000/- per month i.e. total salary of Rs.3,000/- per month. Bhatta being part of the monthly wages, is to be included in the monthly salary of the deceased. However, it must be noted that though respondent No.1 employer denied the claim of the claimants regarding monthly salary of the deceased at the rate of Rs.4,000/-, he has not brought on record salary slip of the deceased or any receipt issued by the deceased or his account book to show that he used to pay monthly salary to the deceased at the rate of Rs.3,000/- including Bhatta. In view of Section 106 of Evidence Act, the salary of the deceased is within knowledge of respondent No.1 employer. Therefore, burden lies on respondent No.1 to prove the exact monthly salary paid to the deceased before his death. As employer did not produce any documentary evidence regarding payment of salary to the deceased at the rate of Rs.3,000/- per month including Bhatta, adverse inference is to be drawn that monthly salary of the deceased was Rs.4,000/-, as contended by the claimants." 13. Since the employer did not produce any contemporaneous evidence to deny payment of the salary to the deceased @ Rs.6000/- per month plus Rs.150/- as daily allowances, an adverse inference has to be drawn that the monthly salary of the deceased was not other than the one claimed by the claimants. 14. Strong exception has been taken by the learned counsel for the appellant-Insurance Company to the effect that the daily allowance could not have been taken into consideration while computing the total monthly income of the deceased. 15. However, I am of the considered view that there is no substance in the contention so raised because any privilege or benefit, which is capable of being estimated in money will have to be taken as income. 15. However, I am of the considered view that there is no substance in the contention so raised because any privilege or benefit, which is capable of being estimated in money will have to be taken as income. If any allowance is paid in consideration of the work done by the employee, even if it is paid to facilitate the employee to meet his daily needs, it will have to be taken as part of the wages. Similarly, if any allowance is being paid to an employee by the employer to meet any special needs or circumstances (relating to his employment) that will have also be a part of the wages. 16. Identical questions though under Workman Compensation Act have come up before this Court and it has been repeatedly held that the daily allowance given by the employer to the employee will have to be calculated towards wages. 17. Reference in this regard can conveniently be made to the decisions rendered by this Court in National Insurance Company Ltd. vs. Prem Singh and ors.,2009 LatestHLJ 675, (H)), Oriental Insurance Company vs. Bhagat Singh,2012 2 HimLR 969 and Shriram General Insurance Company Limited vs. Leela Vati, (2015) Supp LatestHLJ 124 (HP),and Savitri Devi vs. M/s Bharti Filling Station, (2016) 1 ShimLC 64 . 18. In addition to the above, it would be noticed that the Hon'ble Supreme Court, while dealing with a case regarding death of truck driver, where there was no documentary evidence to support monthly wages, in Jaya Biswal vs. Branch Manager, IFFCO TOKIO General Insurance Company Limited, (2016) 11 SCC 201 , has taken the monthly wages to be Rs.10,000/-. 19. Thus, on the basis of the aforesaid discussion, it can conveniently be held that the learned Tribunal has rightly assessed monthly income of the deceased to be Rs.9000/-. The substantial question of law is answered accordingly. Substantial question of law No.2: 20. It would be noticed that though the onus to prove this question was on the Insurance Company, but then it did not choose to lead any satisfactory or convincing evidence in this regard. Apart from this, the Insurance Company has failed to establish how the vehicle in question was being plied without valid permit, which admittedly was a Taxi having seating capacity of 8+1. The substantial question of law is answered accordingly. Substantial question of law No.3 21. Xxx XXX XXX 22. Apart from this, the Insurance Company has failed to establish how the vehicle in question was being plied without valid permit, which admittedly was a Taxi having seating capacity of 8+1. The substantial question of law is answered accordingly. Substantial question of law No.3 21. Xxx XXX XXX 22. As regards this question, no evidence to this effect has been led by the Insurance Company. Even though, the Insurance Company has examined RW2, Gian Kanwar, Record Keeper from the office of District Judge, Solan, who had brought the record of case titled as Smt. Anjana vs. Ishwar Dutt, which was decided by MACT-I, Solan, containing testimonies of Dr. Ruchika, Ext. RW2/B and HC Amar Nath, Ext.RW2/F, but these two are of no avail to the Insurance Company. 23. The perusal of the testimony of Dr. Ruchika, Ext. RW2/B would go to show that she had conducted postmortem of the body of the deceased and after collecting blood and urine samples of the deceased had handed over the same to the police for chemical examination. 24. Hc Amar Nath had proved the report of the Chemical Examiner, Ext. PW2/G, which indicates that on chemical examination of blood sample of deceased, ethyl alcohol was detected to the extent of 88.05 mg%. 25. Even though the Chemical Examiner's report, Ext. Ext.PW2/G does indicate that the deceased was definitely under the influence of liquor, however this Court in Khem Chand vs. Uma Devi, (2010) 2 SLJ 1207 (HP), has held that intoxication of the driver is not a ground available to the Insurance Company under Section 149 of the Motor Vehicles Act, therefore, the liability which is statutory under Section 147 of the Act, has to be satisfied by the insurer. 26. This legal position was thereafter reiterated in Oriental Insurance Company Ltd. vs. Sangeyum, (2016) ACJ 1783. 27. Similar reiteration of law can be found in another judgment of this Court in Babu Ram vs. Ajay Kumar, (2016) LatestHLJ 608, (HP), wherein it was held that in order to escape its liability, the Insurance Company has to plead and prove that the driver was under the state of intoxication with the knowledge and consent of the insured and and since there was no evidence in this regard, therefore, the Insurance Company was saddled with liability to indemnify the insured. 28. 28. Adverting to the facts of the present case, the Insurance Company has led no evidence to prove that the deceased had consumed liquor with the knowledge and consent of the insured/employer. Since the vehicle was duly insured with the Insurance Company, therefore, the insured/employer was not disqualified to get indemnified of liability of payment of compensation money to the claimants. The substantial question of law is answered accordingly. 29. In view of the aforesaid discussion, I find no merit in this appeal and the same is according dismissed so also the pending application(s), if any, leaving the parties to bear their own costs. JUDGMENT : Tarlok Singh Chauhan, J. The instant appeal has been admitted on the following substantial questions of law:- 1. Whether the Ld. Commissioner while passing impugned order erred in awarding huge compensation amount to the claimants/respondents No. 1 to 3 payable by the appellant/insurer when from the material and evidence on record, it was proved that owner/insured used to pay Rs.2500/- as the monthly salary to deceased and his income taken @ Rs.9000/- per month was based on guesswork without any basis and therefore, is the compensation amount is liable to be slashed considerably? 2. Whether the offending vehicle registered and insured as a private vehicle, was used as taxi at the time of accident and thus, vehicle was being used for commercial purpose for hire and reward without valid permit which was against the terms & conditions of the insurance policy and this disentitled owner/insured to claim indemnification of claim under policy of insurance? 3. Whether insured vehicle at the time of accident was driven by decided driver in the inebriated condition. If so, on this ground too, owner/insured was disqualified to get indemnified of liability of payment of compensation to the claimants? 2. However, before proceeding to determine the aforesaid questions certain minimal facts need to be noticed. 3. The respondents No. 1 to 5/claimants, filed a claim petition under Section 22 of the Employee's Compensation Act seeking compensation of Rs.25,00,000/- along with 50% penalty and interest @ 12% per annum before the learned Commissioner on account of death of their sole bread earner, namely, Jai Prakash averring therein that the deceased was driver by profession and he was engaged by respondent No.6/employer as driver on his vehicle bearing registration No. HP-14-A-0919 on monthly salary of Rs.6000/-. Besides that the deceased was getting Rs. 100/- per day as daily expenses. On 26.12.2012, when the deceased was driving the aforesaid vehicle, at about 5.40 P.M., it met with an accident near Bus Stand Sarahan at Nahan-Shimla Road, resulting into death of the deceased. It was further averred that the accident had taken place during the course of the employment of the deceased with respondent No.6. 4. The respondent No.6/employer, who is owner of the vehicle in question, contested the petition, wherein he did not deny the involvement of his vehicle in the accident at the relevant date and time, but denied that the deceased was getting salary of Rs.6000/- per month plus Rs.100/-as daily expenses. 5. The appellant-Insurance Company filed its separate reply, wherein preliminary objections were taken to the effect that there was no relationship of employer and employee between the deceased and respondent No.6, private vehicle was being used for commercial use, the driver of the vehicle was not possessing valid and effective driving licence, thus, the vehicle in question was being plied in violation of terms and conditions of the insurance policy. On merits, the Insurance Company after reiterating and elaborating preliminary objections denied the salary of the deceased to be Rs.6000/-per month plus Rs.100/- per day as daily expenses and alleged that the deceased had consumed liquor at the time of accident and, therefore, the vehicle was being plied at the time of accident in contravention of standard policy of insurance. 6. On 21.11.2013, the learned Commissioner framed the following issues:- 1. Whether the deceased Jai Prakash being driver of Mahindra Scorpio No. HP-14A-0919 owned by respondent No.1 Ishwar Dutt Sharma who died in the course of his employment under respondent No.1 on the evening of 26.11.2013 around 5.45 P.M. at Bye Pass Sarahan, as alleged? 2. Whether the deceased was getting Rs.6000/- per month as salary and besides this Rs.1000/- as daily wage from respondent No.1, as alleged? OPP 3. Whether the petitioners being dependents of deceased Jai Prakash are entitled for compensation as alleged?OPP 4. Whether the petitioners spent more than Rs.50,000/- for the transportation of dead body and last rites of the deceased as alleged? 5. Whether the petitioners are estopped from filing the present petition on account of this act and conduct? OPR-1. 6. Whether the petitioners have not approached with clean hand to this Court?OPR-1 7. Whether the petitioners spent more than Rs.50,000/- for the transportation of dead body and last rites of the deceased as alleged? 5. Whether the petitioners are estopped from filing the present petition on account of this act and conduct? OPR-1. 6. Whether the petitioners have not approached with clean hand to this Court?OPR-1 7. Whether there is no relationship of employee and employer between the deceased Jai Prakash and respondent as alleged?OPR-2 8. Whether the petition of the petitioners has been filed in collusion with the respondent No.1?OPR-2 9. Whether the respondent No.1 and deceased have violated the terms and conditions of the insurance policy, as alleged?OPR-2 10. Relief. 7. After recording the evidence and evaluating the same, the learned Commissioner below vide order dated 30.5.2017 allowed the petition and awarded the compensation of Rs.9,02,300/- along with interest @ 12% per annum. 8. I have heard the learned counsel for the parties and have also gone through the records of the case carefully. Substantial question of law No.1 9. Adverting to the facts of the present case, it has come in the pleadings of claimants that the deceased was getting salary of Rs.6000/- per month apart from Rs.100/- as daily allowance. This averment has been duly substantiated in the affidavit, Ext. PW1/A filed by wife of the deceased, Jyoti Kumari in her examination-in-chief. 10. Though, the employer and Insurance Company have in their respective replies denied the monthly salary of the deceased to be Rs.6000/- plus Rs.100 as daily allowance, however, the employer while appearing in the witness box as RW1 failed to bring on record salary slip of the deceased or any receipt issued by the deceased or his account books to show that he used to pay monthly salary of Rs.2500/- against the one claimed by the claimants. 11. In view of Section 106 of the Indian Evidence Act, salary paid to the deceased was within the knowledge of the employer, therefore, burden was upon the owner to prove the exact monthly salary paid to the deceased before his death. 12. In taking this view, I am supported by the judgment of the learned Single Judge of Bombay High Court in First Appeal No. 399/2007, titled as Navnath Kishanrao Nakhate and anr. vs. Ganesh Shivaji Godke and anr., decided on 14.12.2018, wherein it was held as under:- "8. 12. In taking this view, I am supported by the judgment of the learned Single Judge of Bombay High Court in First Appeal No. 399/2007, titled as Navnath Kishanrao Nakhate and anr. vs. Ganesh Shivaji Godke and anr., decided on 14.12.2018, wherein it was held as under:- "8. No doubt, after going through the claim submitted by the employer to respondent No.2 -Insurance Company after the accident (Exh.44), it becomes clear that the employer has admitted monthly salary of deceased at the rate of Rs.2,000/- per month and Bhatta at the rate of Rs.1,000/- per month i.e. total salary of Rs.3,000/- per month. Bhatta being part of the monthly wages, is to be included in the monthly salary of the deceased. However, it must be noted that though respondent No.1 employer denied the claim of the claimants regarding monthly salary of the deceased at the rate of Rs.4,000/-, he has not brought on record salary slip of the deceased or any receipt issued by the deceased or his account book to show that he used to pay monthly salary to the deceased at the rate of Rs.3,000/- including Bhatta. In view of Section 106 of Evidence Act, the salary of the deceased is within knowledge of respondent No.1 employer. Therefore, burden lies on respondent No.1 to prove the exact monthly salary paid to the deceased before his death. As employer did not produce any documentary evidence regarding payment of salary to the deceased at the rate of Rs.3,000/- per month including Bhatta, adverse inference is to be drawn that monthly salary of the deceased was Rs.4,000/-, as contended by the claimants." 13. Since the employer did not produce any contemporaneous evidence to deny payment of the salary to the deceased @ Rs.6000/- per month plus Rs.150/- as daily allowances, an adverse inference has to be drawn that the monthly salary of the deceased was not other than the one claimed by the claimants. 14. Strong exception has been taken by the learned counsel for the appellant-Insurance Company to the effect that the daily allowance could not have been taken into consideration while computing the total monthly income of the deceased. 15. However, I am of the considered view that there is no substance in the contention so raised because any privilege or benefit, which is capable of being estimated in money will have to be taken as income. 15. However, I am of the considered view that there is no substance in the contention so raised because any privilege or benefit, which is capable of being estimated in money will have to be taken as income. If any allowance is paid in consideration of the work done by the employee, even if it is paid to facilitate the employee to meet his daily needs, it will have to be taken as part of the wages. Similarly, if any allowance is being paid to an employee by the employer to meet any special needs or circumstances (relating to his employment) that will have also be a part of the wages. 16. Identical questions though under Workman Compensation Act have come up before this Court and it has been repeatedly held that the daily allowance given by the employer to the employee will have to be calculated towards wages. 17. Reference in this regard can conveniently be made to the decisions rendered by this Court in National Insurance Company Ltd. vs. Prem Singh and ors.,2009 LatestHLJ 675, (H)), Oriental Insurance Company vs. Bhagat Singh,2012 2 HimLR 969 and Shriram General Insurance Company Limited vs. Leela Vati, (2015) Supp LatestHLJ 124 (HP),and Savitri Devi vs. M/s Bharti Filling Station, (2016) 1 ShimLC 64 . 18. In addition to the above, it would be noticed that the Hon'ble Supreme Court, while dealing with a case regarding death of truck driver, where there was no documentary evidence to support monthly wages, in Jaya Biswal vs. Branch Manager, IFFCO TOKIO General Insurance Company Limited, (2016) 11 SCC 201 , has taken the monthly wages to be Rs.10,000/-. 19. Thus, on the basis of the aforesaid discussion, it can conveniently be held that the learned Tribunal has rightly assessed monthly income of the deceased to be Rs.9000/-. The substantial question of law is answered accordingly. Substantial question of law No.2: 20. It would be noticed that though the onus to prove this question was on the Insurance Company, but then it did not choose to lead any satisfactory or convincing evidence in this regard. Apart from this, the Insurance Company has failed to establish how the vehicle in question was being plied without valid permit, which admittedly was a Taxi having seating capacity of 8+1. The substantial question of law is answered accordingly. Substantial question of law No.3 21. Xxx XXX XXX 22. Apart from this, the Insurance Company has failed to establish how the vehicle in question was being plied without valid permit, which admittedly was a Taxi having seating capacity of 8+1. The substantial question of law is answered accordingly. Substantial question of law No.3 21. Xxx XXX XXX 22. As regards this question, no evidence to this effect has been led by the Insurance Company. Even though, the Insurance Company has examined RW2, Gian Kanwar, Record Keeper from the office of District Judge, Solan, who had brought the record of case titled as Smt. Anjana vs. Ishwar Dutt, which was decided by MACT-I, Solan, containing testimonies of Dr. Ruchika, Ext. RW2/B and HC Amar Nath, Ext.RW2/F, but these two are of no avail to the Insurance Company. 23. The perusal of the testimony of Dr. Ruchika, Ext. RW2/B would go to show that she had conducted postmortem of the body of the deceased and after collecting blood and urine samples of the deceased had handed over the same to the police for chemical examination. 24. Hc Amar Nath had proved the report of the Chemical Examiner, Ext. PW2/G, which indicates that on chemical examination of blood sample of deceased, ethyl alcohol was detected to the extent of 88.05 mg%. 25. Even though the Chemical Examiner's report, Ext. Ext.PW2/G does indicate that the deceased was definitely under the influence of liquor, however this Court in Khem Chand vs. Uma Devi, (2010) 2 SLJ 1207 (HP), has held that intoxication of the driver is not a ground available to the Insurance Company under Section 149 of the Motor Vehicles Act, therefore, the liability which is statutory under Section 147 of the Act, has to be satisfied by the insurer. 26. This legal position was thereafter reiterated in Oriental Insurance Company Ltd. vs. Sangeyum, (2016) ACJ 1783. 27. Similar reiteration of law can be found in another judgment of this Court in Babu Ram vs. Ajay Kumar, (2016) LatestHLJ 608, (HP), wherein it was held that in order to escape its liability, the Insurance Company has to plead and prove that the driver was under the state of intoxication with the knowledge and consent of the insured and and since there was no evidence in this regard, therefore, the Insurance Company was saddled with liability to indemnify the insured. 28. 28. Adverting to the facts of the present case, the Insurance Company has led no evidence to prove that the deceased had consumed liquor with the knowledge and consent of the insured/employer. Since the vehicle was duly insured with the Insurance Company, therefore, the insured/employer was not disqualified to get indemnified of liability of payment of compensation money to the claimants. The substantial question of law is answered accordingly. 29. In view of the aforesaid discussion, I find no merit in this appeal and the same is according dismissed so also the pending application(s), if any, leaving the parties to bear their own costs.