New India Assurance Company Ltd vs Sheela & Ors on 16 December, 2025

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Himachal Pradesh High Court

New India Assurance Company Ltd vs Sheela & Ors on 16 December, 2025

Bench: Sushil Kukreja

( 2025:HHC:43913 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 4146 of 2013 Reserved on: 19.11.2025 Date of decision: 16.12.2025 .

________________________________________________ New India Assurance Company Ltd. .....Appellant Versus Sheela & Ors. ......Respondents ________________________________________________ Coram of The Hon'ble Mr. Justice Sushil Kukreja, Judge.

Whether approved for reporting? Yes. ________________________________________________ For the appellant:rt Mr. B.M. Chauhan, Senior Advocate with Mr. Amit Himalvi, Advocate.

For the respondents: Mr. N.D. Sharma, Advocate, for respondents No. 1 & 2.

Respondent No. 3 ex parte.

Sushil Kukreja, Judge.

The present appeal is maintained by the appellant/Insurance Company, against the award passed by the Court of learned Commissioner (IV), Shimla, exercising power, under Employee's Compensation Act, 1923, in Case No. RBT 18-2 of 11/09, decided on 18.07.2013.

2. The brief facts of the case as set up by the 1 Whether reporters of Local Papers may be allowed to see the judgment?

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2 ( 2025:HHC:43913 ) claimants are that on 17.11.2008, while Ramakant alias Pankaj (since deceased), who was employed by Ram Swaroop (respondent No. 1 before the learned Court below) .

as driver in his vehicle bearing registration No. HP-09A-

2085, was discharging his duties as driver, the aforesaid vehicle met with an accident and deceased died on the spot.

of It has been averred that at the time of accident, deceased was 28 years of age, hale and hearty and was maintaining rt the claimants, who were totally dependent upon him.

Consequntly, prayer for allowing the petition and awarding compensation was made.

3. On notice, the respondents contested the petition by filing different sets of replies. The employer i.e. Respondent No. 1 in his reply, took preliminary objections qua maintainability, that the vehicle in question was comprehensively insured with respondent No. 2,that the driver of the vehicle was fully insured with respondent No. 2, that the driver of the vehicle was possessing valid and effective driver licence at the time of accident, as such, Insurance Company was liable to indemnify the respondent ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 3 ( 2025:HHC:43913 ) etc. have been taken. On merits, contents of paragraphs No. 1 to 5 of the petition were admitted to be correct. It has been averred that respondent No.1 may be exonerated from the .

liability and Insurance Company may be directed to indemnify the owner.

4. The Appellant Insurance Company(respondent of No. 2 before the learned Court below) in reply took preliminary objections qua maintainability, that deceased was rt not an employee with respondent No. 1 (owner), that deceased was not holding effective and valid driving licence at the time of accident and vehicle was being driven in breach of terms and conditions of the policy, that the vehicle was being plied without valid registration certificate, route permit and fitness certificate etc.pettion being bad for mis-

joinder of necessary parties and being filed in collusion with respondent No. 1, who was father of the deceased, have been taken. On merits, it was denied that deceased Ramakant was employed as paid driver by respondent No. 1 in vehicle No. HP-09A-2085. It is averred that deceased had not died during the course of his employment and there was ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 4 ( 2025:HHC:43913 ) no contract of employment between the deceased and respondent No. 1. Lastly, prayer for dismissal of the petition has been made.

5. On pleadings of the parties, the following issues were framed:-

"1. Whether present petition is maintainable in this present form? OPP of

2. Whether the claimant is entitled to compensation, if so, to what extent and from whom? OPP

3. Whether there exists any relationship of employer and employee between the claimant and respondent No. rt 1? OPP

4. Whether the vehicle in question was insured at the time of accident? OPR-1

5. Whether the deceased was not having valid and effective driving licence at the time of accident? OPR-2

6. Whether the vehicle in question was being plied in contravention to the terms and conditions of the Insurance policy? OPR-2

7. Whether the insurance company is liable in the absence of any contract of employment and relationship of employer and employee between the claimant and respondent No. 1? OPR-2

8. Whether the claim petition is bad for mis-joinder of necessary parties? OPR-2

9. Whether there is any collusion between the claimant and respondent No.1? OPR-2

10. Relief."

6. After the parties led evidence and after hearing the learned Counsel for the parties, the petition was partly ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 5 ( 2025:HHC:43913 ) allowed and claimant No. 1 was held entitled to compensation of Rs. 4,23,580/- alongwith interest @ 12% per annum, w.e.f. 01.01.2009 till its actual realization, against .

respondent No. 2-Insurance Company.

7. Feeling dissatisfied, respondent No. 2-Insurance Company preferred the instant appeal under Section 30 of of the Employee's Compensation Act, 1923 for quashing and setting aside the impugned award, which was admitted for rt final hearing on following substantial question of law:-

"Whether there is misappreciation of the pleadings of the parties and misreading of the oral as well as documentary evidence available on record by the Commissioner below exercising the powers under Employee's Compensation Act, 1923 and on that account, the order impugned in this appeal being perverse and vitiated is not legally sustainable."

8. I have heard the learned Senior Counsel for the appellant, learned counsel for respondents No. 1 & 2 and carefully examined the entire record.

9. The learned Senior Counsel appearing for the appellant/insurance company contended that the deceased was the son of the owner of the vehicle and, he was not employed by him and in absence of any evidence with ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 6 ( 2025:HHC:43913 ) regard to employment of the deceased with the respondent no.1, the Commissioner below had erroneously entertained the claim petition and awarded compensation. He further .

contended that the learned Commissioner below had gravely erred in holding that the claimants had been successful in establishing the relationship of employee and employer of between the deceased and respondent No. 1, as after remand of the case, no documentary proof had been placed rt on record to prove that the deceased was employed as driver by his father (respondent No. 1). He further submitted, that the claim of employment is made only for the purpose of claiming compensation from the appellant-insurance company under the provisions of the Workmen's Compensation Act, 1923. With these submissions, a prayer for setting aside the impugned award and acceptance of the instant appeal is made.

10. On the other hand, it is submitted by the learned Counsel appearing for the respondents that the deceased was employed by the owner of the vehicle, and, incidentally, he was also his son as such, it is submitted, that as the ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 7 ( 2025:HHC:43913 ) deceased was engaged as driver of the vehicle by its owner, and, he died during the course of employment, in that view of the matter, the learned Commissioner below has correctly .

appreciated the evidence on record, and, recorded its finding and the present appeal deserves to be dismissed.

11. At the very outset, it may be pertinent to mention of here that vide order dated 17.12.2012, the case was remanded back by this Court to the Court of learned rt Commissioner below to decide the same afresh and the parties were allowed to lead evidence on the aspect as to whether the deceased was in fact employed by the respondent no.1 or not. Relevant portion of the aforesaid judgment reads as under:-

"These cases are remanded to the Commissioner (IV), Shimla exercising powers under Employees' Compensation Act, 1923 in order to enable the parties to adduce evidence as to whether deceased Ramakant @ Pankaj was working as driver of respondent No. 1 (admittedly his father). Learned counsel appearing for the appellant has relied upon the judgment of the Supreme Court in Gottumukkala Appala Narasimha Raju and others vs. National Insurance Company Limited and another (2007)13 SCC 446 holding:

22. In our considered opinion, it is wholly absurd to suggest that the husband would be a "workman" of his wife in absence of any specific contract. We have ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 8 ( 2025:HHC:43913 ) no doubt in our mind that only for the purpose of proceeding under the 1923 Act have the appellants concocted the story of husband and wife living separately. If they have been living separately in view of certain disputes, the question of husband being a .

"workman" under her appears to be a far-fetched one.

23. Technically, it may be possible that the husband is employed under the wife, but, while arriving at a conclusion that when a dispute has been raised by other side, the overall situation should have been taken into consideration. The fact, which speaks for of itself shows that the owner of the tractor joined hands with the claimant for laying a claim only against the insurer. The claim was not bona fide.

24. No documentary proof to establish the contract of employment was produced. No independent rt witness was examined. Even as to for what purpose the tractor was being used had not been disclosed.

How the accident had taken place is also known (sic not) borne out from the records of the case. If the deceased, with all intent and purport, was the owner of the tractor, the claim petition under the 1988 Act might not have been maintainable. A petition under the 1923 Act certainly would not lie. Only because Sections 143 and 167 of the 1988 Act refer to the provisions of the 1923 Act, the same by itself would not mean that the provisions of the 1988 Act, proprio vigore would apply in regard to a proceeding for paying under the 1923 Act. The limited applicability of the provisions of the 1988 Act, in relation to the proceedings under the 1923 Act has been discussed by this Court in the aforementioned judgments. It is, thus, not possible to extend the scope and ambit of the provisions of the 1988 Act to the provisions of the 1923 Act save and except to the extent noticed hereinbefore." (at pp 456-457) and Oriental Insurance Company vs. Santosh Devi and another 2011(1) Shim.L.C. 280,touching this aspect.

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9 ( 2025:HHC:43913 ) Rather than dismissing the case instituted by the claimants, it would be in the fitness of things if the parties are allowed to lead evidence on this aspect as to whether the deceased was in fact employed by the first respondent or not.

xxx xxx xxx

4. Parties to appear before the learned trial Court on 4 th March, 2013. The learned Commissioner is directed to grant an opportunity to the claimant, owner and the insurance company to lead evidence on the limited point and also to urge on the second point with respect to the law applicable for the grant of compensation. No other of evidence will be allowed to be led by the parties. The award is accordingly modified and the appeals stand disposed of.

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    12.
                 rt

After the case was remanded back by this Court, the parties have led further evidence and after hearing the learned counsel for the parties, award dated 18.07.2013, which is under challenge before this Court was passed.

13. As evident from order dated 17.12.2012 passed by this Court, while remanding back the petition, notice of judgment rendered by Hon'ble Supreme Court in Gottumukkala Appala Narasimha Raju and others vs. National Insurance Company Limited and another, (2007)13 SCC 446 had been taken by this court, however, the perusal of the impugned award shows that the aforesaid ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 10 ( 2025:HHC:43913 ) judgment has not been taken into consideration by learned Commissioner below while deciding the claim petition afresh.

The question, which was to be decided by the learned .

Commissioner below was that whether the deceased was in fact employed by the 1st respondent or not.

14. Now the question which arises for consideration of before this Court is as to whether the claimants have established that there was relationship of employee and rt employer between deceased, Ramakant and respondent No. 1, Ram Swaroop.

15. The onus was upon the claimants to establish that there was a relationship of employee and employer between the deceased and respondent No. 1. Admittedly, the deceased, Ramakant was son of respondent No. 1, Ram Swaroop. The case of the claimants is that the deceased was employed by respondent No. 1, as driver, on his vehicle No. HP-09A-2085, on monthly salary of Rs. 6,000/- and while discharging his duties as driver, the vehicle met with an accident on 17.11.2008, as a result of which, deceased died on the spot.

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11 ( 2025:HHC:43913 )

16. Claimant Sheela Devi, while appearing in the witness box as PW-1 deposed that her husband Ramakant (since deceased) was employed as driver by respondent No. .

1 in his vehicle No. HP-09A-2085 and he was being paid salary to the tune of Rs. 6,000/- per month. On 17.11.2008, her husband died during the course of said employment and of FIR was also registered in this regard.

17. Ram Swaroop, while appearing in the witness rt box as RW-1 deposed that he had employed Ramakant (since deceased) as driver in his vehicle No. HP-09A-2085, which was insured with respondent No. 2.Initially he had not placed on record any documentary proof to show that he had employed Ramakant (since deceased) as driver in his vehicle. However, after the case was remanded back by this Court, RW-1 Ram Swaroop has placed on record copy of diary, Ext. DW-1/A (4 leaves), wherein, it has been mentioned that he used to pay salary of Rs. 6,000/- per month to the deceased. However, the said document relied upon by the learned Commissioner is not admissible in evidence, being fabricated document. The said extract of ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 12 ( 2025:HHC:43913 ) diary is nothing, but fabricated evidence, which has no evidentiary value in the eyes of law, as the said entries appears to have been manipulated and concocted by .

respondent No. 1, Ram Swaroop in connivance with the claimants. Further, there are various discrepancies in the abstracts of diary, Ext. DW-1/A. Therefore, the extract of of diary and the alleged entries cannot be relied upon to infer that deceased Ramakant was employed as driver by rt respondent No. 1, Ram Swaroop. It appears that a story has been concocted to claim compensation by alleging that deceased was a paid employee with his father respondent No. 2 and was being paid monthly salary of Rs. 6,000/-. The oral testimonies of PW-3 and PW-4 cannot be relied upon in order to establish the relationship of employee and employer between the deceased and respondent No. 1. Hence, after remand of the case by this Court, no cogent and satisfactory evidence, much less, documentary evidence has been placed on record so as to prove that the deceased was employed, as driver, by his father, respondent No. 1.

18. The learned Commissioner below has totally ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 13 ( 2025:HHC:43913 ) ignored the documents. Ext. RW-1/B, which is a claim form submitted by respondent No. 3 to claim own damage claim with respect to the vehicle in question and in said form, .

column with respect to the relationship with the deceased was left blank. Nothing has been mentioned in the said form that deceased was a paid driver employed by respondent of No. 1.

19. There may not be any express prohibition for such rt employment, but, having regard to the defence of the appellant/insurance company, if the compensation is claimed by resorting to the provisions under the Workmen's Compensation Act, 1923, the claimants have to establish that the deceased was employed by the respondent no.1. May be that unfortunate claimants are dependants of the deceased, but in absence of proving employment of the deceased with the owner of the vehicle, they are not entitled to claim any compensation. In the opinion of this court, the claim of employment put forth by the claimants is not bonafide and appears to have been put forth only for laying a claim against the insurance company. This court is conscious of the fact ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 14 ( 2025:HHC:43913 ) that the scheme of the Act is a beneficial legislation. True, the technicalities and niceties cannot be allowed to be raised in order to defeat the purpose of the Act, but when the claim .

is not genuine, the claimants certainly have to cross the technicalities and niceties of the law, as the accident is not a bonanza for the claimants.

20. In the instant case, apart from the self-serving statements of the interested witnesses, i.e. claimant Sheela Devi (PW-)1 rt as well as respondent No. 1 (RW.1), Ram Swaroop, no cogent and satisfactory documentary evidence has been placed on record to the effect that the deceased was employed as driver by respondent No. 1. There is no independent evidence on record to prove the employment of the deceased, as such, it cannot be said that the deceased was employed by his own father for the purpose of driving the vehicle. The learned Commissioner below, in absence of any independent evidence on record, recorded the finding with regard to employment, on a mere presumption. In that view of the matter, the impugned award of the Commissioner below is liable to be set aside. Substantial question of law is ::: Downloaded on - 16/12/2025 20:37:19 :::CIS 15 ( 2025:HHC:43913 ) answered accordingly.

21. Accordingly, in view of my discussion aforesaid, appeal preferred by the appellant/Insurance Company is .

allowed and impugned order/award dated 18.07.2013 is quashed and set aside.

The appeal, so also pending application(s), if any, of stands disposed of.

                 rt                                ( Sushil Kukreja )
                                                        Judge
     16th December, 2025
          (raman)









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