Himachal Pradesh High Court
Reserved On: 17.6.2025 vs Mehar Singh And Another on 8 July, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2025:HHC:21675 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 4001 of 2013 .
Reserved on: 17.6.2025
Date of decision: 8.7.2025
Satya Devi. ....Appellant.
Versus
Mehar Singh and Another. ....Respondents.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?1 For the Appellant :
r Mr.Lovneesh Kanwar, Senior Advocate,
with Mr.Tarun Garla, Advocate.
For the Respondents: None for respondent No. 1, though
represented by Mr.Bhupinder Thakur,
Advocate.
Mr.Praneet Gupta, Advocate, for
respondent No. 2.
Vivek Singh Thakur, Judge
Claimant/appellant has preferred this appeal against order dated 26.12.2012 passed by Civil Judge (Senior Division), Hamirpur, exercising power of Commissioner under Workman Compensation Act/Employees Compensation Act, in WCA Case No. 41 of 2011, titled as Satya Devi Vs. Mehar Singh and Another, whereby claim petition preferred by appellant/claimant has been dismissed on the ground that Whether the reporters of the local papers may be allowed to see the Judgment? Yes 1 ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 2 2025:HHC:21675 FAO No. 4001 of 2013 deceased son of appellant/claimant was not workman within the meaning of the Act and, therefore, accident did not occurred during or in course of employment of the workman and also on the ground that petition was not .
maintainable being time barred, however, with findings that vehicle at the time of accident was being driven by deceased and he was possessing a valid and effective driving licence.
2. In present case deceased Amar Singh son of appellant/claimant during night intervening 24th-25th September, 2001 had died in accident while he was driving Tractor bearing No. HP-22-4843, owed and possessed by respondent No. 1 Mehar Singh who is brother of deceased Amar Singh. Postmortem of dead body of Amar Singh was conducted in Zonal Hospital Hamirpur, after registration of FIR No. 123/2001 at Police Station Bhoranj with respect to accident.
3. Tractor involved in the accident was duly insured with respondent No. 2-The New India Assurance Company Limited, Hamirpur.
4. According to claimant, deceased Amar Singh was employed as driver on monthly wages of ₹3500/- by his brother Mehar Singh, owner of the Tractor, as Mehar Singh was in service at Solan. At the time of accident age of deceased Amar Singh was 33 years.
5. Notice of accident was served upon the Insurance Company a day after the date of accident.
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6. Appellant/claimant had filed a Claim Petition MAC No. 62 of 2001 on 20.10.2001 for awarding compensation to her under the Motor Vehicles Act, 1988 before the MACT, Hamirpur, which was dismissed by .
the MACT. Whereupon, appellant/claimant had preferred appeal FAO No. 236 of 2003 against the award passed by MACT, Hamirpur.
7. During pendency of FAO No. 236 of 2003, it was noticed that in view of judgment passed by the Supreme Court in Deepal Girishbhai Soni and others Vs. United India Insurance Co. Ltd., reported in 2004 ACJ 934, the original Claim Petition itself was not maintainable under Section 163A of the Motor Vehicles Act, 1988 since in the petition income of deceased was pleaded as ₹3500/- per month, which was more than ₹40,000/- per annum. Thereafter, vide order dated 29.6.2007, with observation that Claim Petition preferred under Section 163A of the Act was bonafide, appellant/claimant was permitted to withdraw original Claim Petition with liberty to file another petition before appropriate forum, and the award dated 14.2.2003 passed by the MACT in MAC No. 62 of 2001 was set aside.
8. Thereafter appellant/claimant preferred Claim Petition before the Commissioner Workman, Bhoranj. At the time of filing of this Claim Petition before the Commissioner Workman, the power of Commissioner was being exercised by Sub Divisional Officer (Civil)/Sub Divisional Magistrate, (SDO Civil). However, during pendency of Claim ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 4 2025:HHC:21675 FAO No. 4001 of 2013 Petition, the Workmen Compensation Act was replaced by Employees Compensation Act, and powers of Commissioner were also vested with Judicial Magistrate/Civil Judge, instead of SDO (Civil)/SDM, whereupon .
Claim Petition preferred by the petitioner was transferred to the Civil Judge-cum-Judicial Magistrate, Hamirpur.
9. During adjudication of Claim Petition appellant/claimant had examined herself as PW-1. Respondent Mehar Singh examined himself has RW-1 and respondent-Insurance Company had examined its General Manager as RW-2.
10. Appellant/claimant had also relied upon copy of FIR Ex. C-
1, copy of Driving Licence of deceased Amar Singh Ex. C-2, copy of postmortem report Ex. C-3, copy of School Leaving Certificate Ex. C-4 and copy of order dated 29.6.2007 passed in FAO No. 236 of 2003, Ex.
C-5.
11. Respondent No. 1 has relied upon Insurance Cover Note Ex.RW-1/A. Respondent No. 2 Insurance Company has relied upon Insurance Cover Note of the Policy Ex. RW-2/A, which is the same as Ex.RW-1/A. Verification of Driving Licence produced before MACT during first round of litigation as Ex. R-2, has also been placed on record as Ex. RX in present case.
12. Learned counsel for respondent No. 2-Insurance Company has tried to justify dismissal of Claim Petition being barred by limitation by ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 5 2025:HHC:21675 FAO No. 4001 of 2013 referring memo of award passed by the Commissioner, by submitting that petition before Commissioner was instituted on 11.8.2011 i.e. after inordinate delay of about 4 years, whereas that accident took place on .
24th-25th September, 2001 and FAO No. 236 of 2003 was also permitted to be withdrawn with liberty to file afresh before appropriate forum vide order dated 29.6.2007 passed by the High Court.
13. The aforesaid submissions of learned counsel for the Insurance Company as well as findings returned by the Commissioner on the issue of limitation are contrary to record and thus liable to be rejected and set aside.
14. From the record, it is apparent that after permission to withdraw the original Claim Petition, preferred before the MACT, vide order dated 29.6.2007, appellant/claimant had approached the Commissioner Workman Compensation on 27.8.2007 and it was taken up for consideration by the Commissioner Workman on 5.9.2007 and thereafter matter was taken up on 13.9.2007 and notices were issued to respondents. On 15.12.2009 Mr.Anup Raj Sharma, Advocate had appeared on behalf of respondent No. 2-Insurance Company before the Commissioner Workman, i.e. SDM Bhoranj , District Hamirpur, H.P. and thereafter reply was filed on behalf of respondent No. 2 on 4.1.2010 before the Commissioner Workman Compensation Act (SDM) Bhoranj and issues were also framed on 4.2.2010 and evidence of claimant was ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 6 2025:HHC:21675 FAO No. 4001 of 2013 recorded on 15.7.2010. As such matter remained pending before the Commissioner Workman Commissioner i.e. SDO(Civil)/SDM till 17.5.2011.
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15. On 17.5.2011, Claim Petition was transferred to District Judge, Hamirpur for the reason that powers of Commissioner under Workman Compensation Act conferred upon SDO (Civil) had been withdrawn as per order of the High Court of Himachal Pradesh and Judicial Magistrate/Civil Judge had been appointed as Commissioner for Employees Compensation vide Notification No. 12-14/89-Sharm-II dated 14.2.2011 issued by Additional Chief Secretary (Labour and Employment) to the Government of Hmiachal Pradesh. Thereafter matter was assigned to Civil Judge (Junior Division) Court No. 1, Hamirpur and on 19.8.2011, notices were issued to the parties.
16. It is apparent from the record that Insurance Company was served before the Commissioner Workman Compensation SDO (Civil), Bhoranj and Mr.Anupraj Sharma, Advocate had appeared on behalf of Insurance Company on 15.12.2009 before SDM and thereafter not only reply was filed by respondent No. 2, but evidence of claimant was also recorded. Despite all these facts, plea taken by respondent-Insurance Company deserves not only to be rejected, but also deprecated for raising unnecessary point resulting into loss, energy and time of everyone including the Court.
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17. From the aforesaid, it is apparent that findings returned by the Commissioner that Petition was filed on 28.9.2007, whereas accident had occurred on 24th-25th September, 2001 and no explanation has been .
given regarding delay that why Petition was not filed within two years from the date of accident, is perverse being contrary to the record, because appellant/claimant had preferred the Claim Petition MAC No. 62 of 2001 before the MACT in December, 2001 itself and submissions of learned counsel for respondent No.2 in this regard are also misconceived. r
18. Commissioner has observed that no explanation has been given as to why the parties withdrew the case in Appeal without any justification and had inferred that only interpretation for withdrawal of the appeal is that claimant had failed before the Tribunal and, therefore, appellant has approached the Commissioner to claim compensation again on the same ground which had already been considered and dismissed.
19. The aforesaid observation of the Commissioner is also contrary to the record, as it it apparent from the copy of order dated 29.6.2007 Ex. C-5 passed in FAO No. 236 of 2003 that Petition was withdrawn in view of pronouncement of the Supreme Court and liberty was granted by the High Court to withdraw the original petition to file another petition on the same cause before the appropriate forum. In view ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 8 2025:HHC:21675 FAO No. 4001 of 2013 of order passed by the High Court, the Commissioner Compensation had neither any occasion nor any business to observe that no explanation has been given for withdrawing the case in appeal without any justification .
and to construe that the appeal was withdrawn for filing the Claim Petition again on the same ground which had already been considered and dismissed.
20. Another ground taken to dislodge the claim of the appellant/claimant is that appellant/claimant had failed to establish relation of workman/employee with the owner of the Tractor as required under the provisions of the Employees Compensation Act. This finding has been rendered on the ground that appellant/claimant is mother of deceased as well as respondent No. 1, and Respondent No. 1 is brother of deceased Amar Singh and, therefore, their oral deposition claiming employee and employer relationship with the deceased and respondent No. 1 was not believed.
21. Accident in reference has not been disputed by Insurance Company. It is also undisputed by the Insurance Company that own damage claim suffered by respondent No. 1 on account of accident with respect to Tractor in reference has been released by the Insurance Company to respondent No.1 in the year 2001 itself.
22. Learned counsel for respondent No. 2/Insurance Company to substantiate the claim that there was no relationship of employee and ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 9 2025:HHC:21675 FAO No. 4001 of 2013 employer between deceased and owner of the Tractor, has referred pronouncements in Gottumukkala Appala Narasimha Raju Vs. National Insurance Co. Ltd. and another, 2007 ACJ 1025; National .
Insurance Company Limited Vs. Lata Devi and others, 2009 (1) Shim.
LC 16; and Oriental Insurance Company Vs. Santosh Devi and Another, 2011 (1) Shiml. LC 280.
23. In Gottumukkala Appala's case the Claim Petition preferred by widow of deceased driver, who was also owner of the Tractor, was rejected by the Supreme Court on the ground that it was wholly absurd to suggest that the husband would be a "workman" of his wife in absence of any specific contract, with further observation that story of relationship of employee and employer was concocted only for the purpose of proceeding under the Act, story that husband and wife were living separately was concocted because if they had been living separately in view of certain dispute, question of husband being a workman of wife in such situation appeared to be a far-fetched one. It is noteworthy that the Supreme Court had also observed that technically it may be possible that the husband is employed under the wife but, while arriving at a conclusion, when a dispute has been raised by other side, the overall situation should have been taken into consideration. It was also observed that no documentary proof to establish the contract of employment was produced. No independent witness was examined and ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 10 2025:HHC:21675 FAO No. 4001 of 2013 even the purpose for which tractor was being used, had not been disclosed and how the accident had taken place, was also not borne out from the record of the case.
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24. In given facts and circumstances, it was held that private parties joined hands amongst them for laying a claim only against the insurer and thus claim was not bona fide.
25. In aforesaid judgment, it has not been held by the Supreme Court that relationship of employee and employer was not possible between husband and wife and the Claim Petition was rejected in the given facts and circumstances.
26. In Lata Devi's case deceased driver Chaman Lal was co-
owner of tractor involved in the accident and he always remained the owner and even insurance was also purchased in his name and in these circumstances, it was observed that it was highly improbable that mother and brother will engage their own son/brother as a driver as there was no evidence regarding the manner in which Chaman Lal deceased was engaged as driver by the other co-owner, and it was observed that owner cannot be treated as workman. From the facts of this case, it is apparent that this judgment is not attracted in present matter.
27. In Santosh Devi's case, by referring Gottumukkala's case, it was observed by the Court that testimony of father and mother of deceased, in absence of any other evidence, cannot be said to be ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 11 2025:HHC:21675 FAO No. 4001 of 2013 evidence to prove that deceased son was workman employed by his father owner of the tractor, particularly when tractor was being used for agricultural pursuits alone.
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28. In present case, apart from the statement of appellant/claimant Satya Devi and respondent No. 1 brother of deceased, there is other evidence on record, indicating that deceased was serving as driver with his brother.
29. Learned counsel for the appellant has placed reliance upon judgment passed by Karnataka High Court in Oriental Insurance Company Ltd. Vs. Hanumant and another, 2006 ACJ 251; and United India Insurance Co. Ltd. Vs. Prakash Shankar Gurav and another, 2006 ACJ 747.
30. In Hanumant's case contention of insurer was that there cannot be a relationship of employer and employee since the deceased happened to be son of owner of the jeep, which was rejected with observation that it was not uncommon amongst the business families to engage their own kith and kin on employment for doing business or commercial activities and merely because in such a situation no wages are paid in cash it is not a ground to infer absence of a legal relationship of employer and employee, since there would always be consideration in kind computable in terms of money for the services rendered and the parties would not go for documentary material to prove payment of wages ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 12 2025:HHC:21675 FAO No. 4001 of 2013 in view of peculiar family relationship and, therefore, it was observed that fact that owner of Jeep and deceased driver were father and son, was not a ground in law to negate the relationship of employee and employer .
under the Workman's Compensation Act.
31. In Prakash Shankar's case, High Court has observed that father engaging his son as employee in a vehicle owned by father is not prohibited under law nor it can be said that such a situation is not normally possible, and just as in any other avocation, it is possible for a father to engage his son as employee.
32. In Gottumukkala's case also, it has been categorically observed by the Supreme Court that technically there is possibility that husband and wife can have relationship of employer and employee. It is apt to notice that relation of husband and wife is more closer than the relation of brother, as both of them being partners of life, in normal circumstances, cannot be expected to work as employee and employer, however, despite that it has been observed by the Supreme Court that such relationship is possible.
33. In present case, relationship between respondent No. 1 and deceased Amar Singh was that they were brothers. Employment of a brother as an employee under another brother is not an abnormal, unnatural or unexpected situation. As observed by the Supreme Court in Gottumukkala's case that claim of such relationship amongst the close ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 13 2025:HHC:21675 FAO No. 4001 of 2013 family members is required to be established on record and the Court has to assess the veracity of such claim by taking into consideration overall situation.
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34. In present case, from the statement of appellant/claimant Satya Devi, it can be easily construed that her sons Mehar Singh respondent No.1, Mohinder Singh and deceased Amar Singh were living separately and she was living with deceased Amar Singh, whereas Mehar Singh was serving in District Solan and there are other sons of Satya Devi, who are living separately. There was a positive suggestion on behalf of Insurance Company to the appellant, which she had accepted by saying that it was correct that her other sons were also doing their separate jobs.
35. RW-1 Maher Singh in his cross-examination has denied that all brothers were residing alongwith mother namely Satya Devi, rather he had explained that he was serving in Horticulture Department since 1997.
36. FIR was lodged by another son of Satya Devi namely Mohinder Singh, copy whereof has been placed on record as Ex. C-1, wherein it has been stated that he was an Advocate at Hamirpur, he was youngest amongst three brothers, tractor was in the name of eldest brother Mehar Singh, and deceased Amar Singh driver of tractor was residing separately in his house constructed at Bhareri and Mehar Singh was residing at Ropari. Further that on 25.9.2001 at 9.30 A.M. he ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 14 2025:HHC:21675 FAO No. 4001 of 2013 received an information in the Court Complex, Hamirpur from Shakti Chand, Advocate about death of his brother Amar Singh due to accident of tractor, whereupon he went to the spot and found that his brother Amar .
Singh was lying under the tractor and had expired. He has categorically stated that tractor was being driven by Amar Singh.
37. Not only Mohinder Singh, Satya Devi and Mehar Singh, but also RW-2 Lekh Raj surveyor of Insurance Company had admitted that after going on the spot, it was found that tractor was being driven by Amar Singh and he was having valid driving licence to drive the tractor.
38. In present case, not only sons of appellant/claimant, but the surveyor has also admitted the fact that tractor was being driven by Amar Singh. FIR was lodged immediately after the accident, wherein also deceased Amar Singh was stated to be driver of the tractor living separately. Admittedly, deceased Amar Singh was having valid driving licence for driving the tractor but was living separately. Owner of the tractor respondent No. 1 Mehar Singh was serving in Horticulture Department and was not driving the tractor, whereas Mahinder Singh was residing at Hamirpur, who is Advocate by profession. Therefore, from the surrounding circumstances and the material on record, it cannot be construed that story of employee and employer relationship has been concocted for getting the compensation by mother Satya Devi, who was residing in village Bhareri, whereas other two brothers were residing ::: Downloaded on - 08/07/2025 21:27:28 :::CIS 15 2025:HHC:21675 FAO No. 4001 of 2013 somewhere else i.e. at Solan and Hamirpur and family of respondent No. 1 is also not residing in village Bhareri, but at village Ropari.
39. Another issue raised by the Insurance Company is that .
there was Janta Personal Accident Insurance in the name of Amar Singh with payment of ₹30/- as premium for which compensation has been paid and, therefore, no other compensation is payable, but at the same time, it is also apparent from the Insurance Cover Note placed on record that one driver and two collies were also insured with extra payment of premium of ₹45/-. It has come in evidence that at the time of accident Amar Singh was driving the tractor with valid driving licence to drive the same. Plea of Insurance Company that premium of driver was for paid driver only, is also not substantiated from the Insurance Cover Note, which indicates that premium of ₹45/- was paid for one driver and two collies. There is no mention in the Insurance Cover Note that premium of ₹45/- was charged to compensate paid driver only. As the driver has been insured by making payment of extra premium without mention that premium was charged for compensating paid driver, plea of the Insurance Company is not acceptable and tenable and thus liable to be rejected. Therefore, even if it is considered that deceased was not paid driver, then also being driver compensation is payable for death of deceased.
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40. Therefore, from the above facts even for payment of ₹50,000/- to mother of deceased on account of Janta Personal Accident Scheme, shall not dis-entitle the claimant to receive compensation for death of Amar Singh being .
driver of tractor.
41. Claimant had claimed her entitlement for compensation amounting to ₹3,52,905/- plus penalty. In her statement she has stated that deceased was earning ₹3500/- per month as salary from respondent No. 1.
Respondent No. 1 Mehar Singh has corroborated the said statement. In his to salary of deceased.
r to cross-examination nothing has been elucidated to doubt the claim with respect Even otherwise ₹3500/- means that deceased was earning ₹115/- per day, which is not an exorbitant amount to be earned by driving a tractor. In any case, a tractor driver at least, at relevant point of time would definitely be earning at least ₹100/- per day in average and ₹3,000/- per month. Therefore, appellant/claimant shall be entitled for compensation as under:-
₹1500x201.66 = ₹3,02,490/-
42. In view of aforesaid discussion, appeal is allowed with direction to respondent-Insurance Company to pay amount of ₹3,02,490/- alongwith interest at the rate of ₹6% per annum from one month after date of accident till final payment of the amount.
Appeal is allowed and disposed of in aforesaid terms.
(Vivek Singh Thakur), th 8 July, 2025 Judge.
(Keshav) ::: Downloaded on - 08/07/2025 21:27:28 :::CIS