Rajasthan High Court - Jaipur
Oriental Insurance Co Ltd vs Smt Santara Devi And Others on 8 May, 2025
[2025:RJ-JP:17497]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 1191/2016
The Oriental Insurance Company Ltd. through Branch Manager,
Branch office, Bajaj Road, Sikar (Raj.)
-----Non-Claimant no. 3/Appellant
Versus
1. Smt Santara Devi w/o Late Shri Harphool Singh r/o Gram
Seva, Tehsil & District Sikar (Raj.)
2. Mukesh s/o Late Shri Harphool Singh, aged about 24 years,
r/o Gram Seva, Tehsil & District Sikar (Raj.)
3. Kumari Sanju d/o Late Shri Harphool Singh, aged about 24
years, r/o Gram Seva, Tehsil & District Sikar (Raj.)
---Claimants/Respondents
4. Baldeva Ram s/o Shri Mukandaram r/o Kalyanpura, Tehsil &
District Sikar (Raj.) ...........Driver
5. Jaitaram s/o Kishnaram r/o Kalyanpura, Tehsil & District Sikar
(Raj.). ............Owner
-----Non-Claimant no. 1 & 2/Respondents
For Appellant(s) : Mr. Sandeep Jain
For Respondent(s) : Mr. Ripu Daman Singh Naruka,
Mr. Vinay Mathur
HON'BLE MR. JUSTICE MANEESH SHARMA
Judgment
JUDGMENT RESERVED ON : 24/04/2025
JUDGMENT PRONOUNCED ON : 08/05/2025
BY THE COURT:
1. The instant appeal has been filed under Section 30 (a)(aa) of the Workmen Compensation Act, 1923 on behalf of the appellant- Oriental Insurance Company Limited (for the brevity of Insurance Company) against the order dated 16.10.2015 passed by the Commissioner, Employee Compensation Act, Sikar in claim case No. WCC/F-31/2006 whereby the learned Commissioner awarded the compensation amount of Rs.3,25,365/- along with the interest (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (2 of 19) [CMA-1191/2016] @ 9% from the date of filing of the application to claimants- respondent Nos.1 to 3.
2. Brief facts of the case are that the respondent Nos.1 to 3 filed an application for compensation under Employee Compensation Act, 1923 (hereinafter referred as E.C. Act) on account of death of Harphool Singh. It was pleaded in the claim petition that the deceased- Harphool Singh was working as a labour on tractor Swaraj 735 EF Chassis No.QWCA30400000347, Engine No. 391311/N0009699 for loading and unloading of the crop of onion under the employment of respondent No.5. It was further pleaded that on 24.04.2001, when he was sitting in tractor attached with trolley as a labour and returning to his village after unloading onion in Krishi Upaj Mandi, Sikar, driver of an unknown truck drove the truck rashly and negligently and hit the tractor- trolley, due to that impact, the tractor-trolley overturned and Harphool Singh died on the spot. It was further pleaded that the respondent Nos.1 to 3 are the legal representatives of Harphool Singh and at the time of accident the age of the deceased was 25 years and he used to earn Rs.100/- per day, therefore, they have filed the present claim petition under the provisions of E.C. Act. It was further pleaded that prior to filing of the present claim petition, the respondent Nos.1 to 3 have filed the claim petition before learned MACT, Sikar but they withdrew the said claim petition on 26.04.2006.
3. That after service of notice on respondent Nos.4 & 5, they did not turn up to defend the claim petition, therefore, learned (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (3 of 19) [CMA-1191/2016] Commissioner proceeded ex parte against them vide order dated 14.06.2007.
4. That the appellant- Insurance Company filed reply to the claim petition and denied the averments made in the claim petition and also denied the factum that the deceased was the labour on the tractor. It was further submitted that the trolley attached with the tractor was not insured with the Insurance Company and that no premium was charged for the occupants of the tractor, therefore, the Insurance Company is not liable to make payment of third party other than driver.
5. On the basis of the pleadings of the parties, learned Commissioner framed following issues:-
1- vk;k e`rd gjQwy flag vizkFkhZ la[;k 2 ds okgu ij fu;ksftr Fkk rFkk fnukad 24-04-01 dks fu;kstu ds nkSjku o dkj.k mldh e`R;q gqbZ \ 2- vk;k e`rd dks mlds fu;kstd ls 100@&:i;s izfrfnu dh nj ls etnwjh izkIr gksrh Fkh \ 3- vk;k chek daiuh viuh vkifRr;ksa ds vk/kkj ij {kfriwfrZ vnk djus ds fy, mRrjnk;h ugha gSA 4- vuqrks"kA
6. Thereafter the claimant-respondent No.1, in order to substantiate the averments of claim petition, examined herself as AW-1 Santara Devi, AW-2 Baldev Ram and produced the documents i.e. Ex.1 Order Sheets of MACT Court, Ex.2 FIR, Ex.3 Final Report, Ex.4 Driving Licence, Ex.5 Insurance Policy, Ex.6 Sale Certificate, Ex.7 form no. 20, Ex.8 Fard Supurdgi Tractor, Ex.9 Notice and Reply under Section 133 of M.V. Act, Ex.10 Post- mortem Report, Ex.11 Insurance Policy, Ex.12 Mechanical Muaina Report, Ex.13 Fard Suprudgi of dead body, Ex.14 site map place of accident, Ex.15 Fard Panchnama.
(Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (4 of 19) [CMA-1191/2016]
7. That the appellant-Insurance Company, in order to refute the averments of the claim petition, examined NAW-1 N.C. Tyagi.
8. That after hearing learned counsel for the respective parties, learned Commissioner decided all issues in favour of the respondent Nos.1 to 3 and awarded amount of Rs.3,25,365/- as compensation and interest thereon @ 9% p.a. from the date of filing the claim petition till its actual payment.
9. That the counsel for the appellant submitted that the impugned order suffers from misreading of oral and documentary evidence. He further submits that the deceased- Harphool Singh was not a labour on the tractor and it was also submitted that as per initial version of the concocted story, Jabarmal was described as driver of the vehicle and later on for the reasons best known to the claimants, implanted respondent No.4 as the driver of the vehicle. It was argued that in the case in hand, the Insurance Company has charged premium of Rs.15/- only for the driver, and not for the labour or the passenger who were travelling in the tractor, while trolley was not insured. Therefore, the Insurance Company is not liable to make payment on account of the death of the passenger i.e. Harphool Singh. It was further submitted that from the evidence of AW-1, AW-2 and from the perusal of copy of policy produced as Ex.11, it is evident that the Insurance Company is not liable to pay compensation on account of death of the deceased. As there is a breach of terms of policy and there is change of version on the part of the claimants, therefore, the impugned order is unsustainable in the eyes of law. It was further (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (5 of 19) [CMA-1191/2016] submitted that the learned Commissioner erred in passing the award against the appellant in favour of the claimants. In support of his contentions the learned counsel for the appellant relies upon the following judgments :-
1. National Insurance Company Ltd. vs. Nathilal & Ors.
reported in 1999 AIR SC 623 decided on 15.12.1998.
2. National Insurance Company Ltd., New Delhi vs. Jugal Kishore & Ors. reported in 1988 AIR SC 719 decided on 09.02.1988.
3. United Insurance Company Limited vs. Serjerao & Ors.
reported in 2009 R.A.R. 89 (SC) decided on14.11.2007.
4. Shri Surendra Kumar & Anr. vs. Shri Narayanlal & Anr.
reported in 2012 RAR 41 (Raj.) decided on 05.05.2011.
5. Judgment passed by this Court in S.B. Civil Misc. Appeal No.1598/2004 titled as United Indian Insurance Co. Ltd.
vs. Ramjilal @ Ramuji & Ors. decided on 24.04.2014.
10. Per contra, learned counsel for the claimants supported the impugned order and submitted that the impugned order is based on due examination of facts and evidence, therefore, does not call for any interference.
11. Learned counsel for respondent Nos.4 & 5 also supported the impugned order and vehemently contended that the grounds so raised by learned counsel for the appellant are not available to them because the original policy was never produced before the Court and in the absence of production of such policy, the Insurance Company is estopped from raising such a plea that he has charged the premium of Rs.15/- only for the driver. It was (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (6 of 19) [CMA-1191/2016] further contended that the scope of the present appeal is confined to question of law and all the questions so raised by learned counsel for the appellant falls within the realm of the questions of fact, therefore, the present appeal deserves to be set aside. In support of his contention the learned counsel for respondent Nos.4 & 5 relies upon the following judgments:-
1. Oriental Insurance Company Ltd. vs. Surendra Nath Loomba & Ors. reported in 2013 ACJ 321 decided on 20.11.2012.
2. United India Insurance Co. Ltd., Jodhpur vs. Dhai & Ors. reported in 1988(2) CurCC 1030 decided on 18.04.1988.
3. Smt. Gunwant Kumari & Ors. vs. Sardar Sadhu Singh & Ors. reported in 1987(2) WLN 714 decided on 30.10.1986.
4. "Golla Rajanna Etc. v. The Divisional Manager And Anr." reported in 2016 AIR SC 5382 decided on 23.11.2016.
5. "North East Karnataka Transport Corporation v. Smt. Sujatha" reported in 2018 AIR SC 5593.
12. Looking to the submissions made by learned counsel for the appellant, following questions of law arise for consideration of this Court in the present appeal:-
"(i) Whether the Insurance Company can be held liable to pay compensation under the award specially when appellant has not received any premium for labour who was sitting in the tractor.
(ii) Whether the learned Commissioner committed serious illegality in holding the Insurance Company liable for the compensation and interest.(Downloaded on 08/05/2025 at 10:02:23 PM)
[2025:RJ-JP:17497] (7 of 19) [CMA-1191/2016]
(iii) Whether the findings given by learned Commissioner are perverse being contrary to material on record."
13. Heard learned counsel for the parties and perused the record.
14. A bare perusal of the record of the case reveals that despite raising specific plea by learned counsel for the Insurance Company that as per Ex.6 sitting capacity of tractor is only one person, the insurance policy/cover note clearly reflects that Company has charged premium of Rs.15/- only for the driver of the tractor and also does not cover the risk of any labour or passenger who was traveling in the tractor. But the said issue was not specifically decided by learned Commissioner under the impugned order and liability to pay compensation was fasten upon the company.
15. It is not disputed that as per Ex.6 (Sale Certificate) the insured vehicle was a tractor with sitting capacity of one person only and company has charged premium of Rs.15 only for the driver, therefore, the only liability of Insurance Company under the E.C. Act and subsisting contract of insurance qua was in respect of the driver of the tractor only. Even as per impugned award the deceased was held to be a labour engaged in loading and unloading of onions on the trolley attached with the tractor. Admittedly the trolley attached with the tractor was not insured.
16. That in order to consider the core issue "whether the risk of the deceased is covered under the policy or not", it would be apt (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (8 of 19) [CMA-1191/2016] to consider the premium charged under the policy (Kisan Package Policy- Ex.11).
The relevant terms of the said policy Ex.11 are reproduced as under:-
"Following risk are cover under policy use of purpose - Agriculture only Driver."
17. A bare perusal of the said policy reveals that only liability of the Insurance Company under E.C. Act and under subsisting contract of insurance qua employee of the Insurer Jaitaram was in respect of the driver of the tractor alone and since the deceased was not the driver of the vehicle rather deceased was a gratuitous passenger (non-fare paying passenger) in the trolley which was not insured by the appellant, therefore, the Insurance Company is not liable to make payment of compensation to him.
18. This is fortified by the judgment of Hon'ble Supreme Court in the matter of National Insurance Co. Ltd., New Delhi vs. Jugal Kishore & Ors. decided on 15.12.1998, wherein it was decided that:-
"We have accordingly perused the photostat copy of the Policy to ascertain whether risk for any amount higher than the amount of Rs.20,000/- contemplated by CI.(b) aforesaid was covered. Our attention was invited by learned counsel for the respondents to the circumstances that at the right hand corner on the top of page 1 of the Policy the words "COMMERCIAL VEHICLE COMPRE-
HENSIVE" were printed. ON this basis and (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (9 of 19) [CMA-1191/2016] on the absis that the premium paid was higher than the premium of an "act only"
policy it was urged by the learned counsel for the respondents that the liability of the appellant was unlimited and not confined to Rs.20,000/- only. We find it difficult to accept this submission. Even though it is not permissible to use a vehicle unless it is covered at least under an "act only" policy it is not obligatory for the owner of a vehicles to get it comprehensively insured. In case however, it is got comprehensively issued a higher premium than for an "act only" policy is payable depending on the estimated value of the vehicle. Such insurance entitles the owner to claim reimbursement of the entire amount of loss of damage suffered up to the estimated value of the vehicle calculated according to the rules and regulations framed in this behalf. Comprehensive insurance of the vehicle and payment of higher premium on this score, however, do not mean that the limit of the liability with regard to third party risk becomes unlimited or higher than the statutory liability fixed under sub-sec. (2) of S. 95 of the Act. FOr this purpose a specific agreement has to be arrived at between the owner and the insurance company and separate premium has to be paid on the amount of liability undertaken by the insurance company in this behalf.
Likewise, if risk of any other nature for instance, with regard to the driver or passengers etc. in excess of statutory liability, if any, is sought to be covered it has to be clearly specified in the Policy and separate premium paid therein."
19. That even otherwise from a bare perusal of Ex.11, it is evident that the policy was issued under Kisan Package Policy and terms of the said policy are re-produced as under:- (Downloaded on 08/05/2025 at 10:02:23 PM)
[2025:RJ-JP:17497] (10 of 19) [CMA-1191/2016] chek/kkjd O;fDr@The Insured- Sh. Jaita Ram S/O Sh. Kisna Ram Jat irk@Address- R/O Kalyanpura Tan Phagalwa, Thesil-Sikar (Raj.) Name of Issuing Office - 243302 Dated - 13-02-2001 to 12-02-2002 Sum Insured - 279890@& Agency Code no. - 804/01166 Premium - 2796+140 = 2936 Type of Insurance - Kisan Package Policy Perils Covered & Warranties One Year Only 13.02.2001 to 12.02.2002 Description of Risk Following risk are cover under policy Section 01 for Rs. 20,000/- @0.70% Rs. 14/-
Section 01 for Rs. 2,000/- @2.40% Rs. 4.80 Section 02 for Rs. 2,000/- @3.10% Rs. 6.20 Section XV for Agriculture Tractor Swaraj Tractor Model 2001 Basic Rs. 150/-
Eng no. - 39.1311/N0009699 1 EV 1% Rs. 2799/-
Ch. No. QWCA 30400000347 Rs. 2949/-
-.25%Excl. - Rs. 700/-
Swaraj 735 Tractor Eq and Flood
S.T. 279890/- Rs. 2249/-
Sitting capacity - Driver Only Act Rs. 507/-
Use of purpose - Agriculture Only Driver 1 Rs. 15/-
Note- excluded risk Rs. 2771/-
Flood and Eq Sect.I & II Rs. 25/-
Rs. 2796/-
Add-5% ST Rs. 140/-
Rs. 2936/-
(Downloaded on 08/05/2025 at 10:02:23 PM)
[2025:RJ-JP:17497] (11 of 19) [CMA-1191/2016]
The named above having this day purposed to effect the above insurance and having paid/made a deposit-furnish a bank guarantee for premium stated above, risk is hereby insured subject to the usual terms and conditions of the company's standard policy.
For the Oriental Insurance Company Ltd. 2796+140=2936 Premium Cash At 18.05 PM Dated - 12.02.2001 Received
20. The arguments of the learned counsel for the appellant is also fortifies from the judgment passed by this Court in S.B. Civil Misc. Appeal No.1598/2004 titled as United Indian Insurance Co. Ltd. vs. Ramjilal @ Ramuji & Ors. decided on 24.04.2014.
21. So far as, the objection of learned counsel for the respondents Nos. 4 & 5 that since original policy has not been produced, therefore, the appellant cannot take the plea that they have taken premium of Rs.15/- only for the driver of the tractor is unfounded as learned counsel for respondent Nos.4 & 5 did not choose to file any reply to the claim petition and they decided not to contest the claim petition. Therefore, exparte proceedings were initiated vide order dated 14.06.2007 and the cover note of insurance policy was produced by the claimants-respondents and the witness of the Insurance Company namely N.C. Tyagi has also proved the cover note Ex.11. Apart from the above reason, after framing of the issue No.3, the initial onus was upon the appellant to prove such defence and the moment the Insurance Company examined Mr. N.C. Tyagi qua the conditions of Ex.11 cover note, the burden of proof is discharged and the onus of the said issue (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (12 of 19) [CMA-1191/2016] shifts upon the other parties and none of the parties has refuted the said evidence by leading any oral or documentary evidence. Therefore, the contention of respondent Nos.4 & 5 that plea of Insurance Company cannot be considered in the absence of original policy, lacks merit. That as far as the judgments relied upon by the owner are concerned, there is no quarrel in respect of the legal proposition as propounded in the said judgments. But the said case laws are distinguishable on the facts as neither any defence was raised during the course of trial nor any objection was raised at the time of exhibiting the cover note Ex.11.
22. That the other argument raised by the counsel for the respondent that the issue raised by the appellant-Insurance Company are based on finding of the fact which cannot be appreciated as the Hon'ble Apex Court in the case of "Golla Rajanna Etc. v. The Divisional Manager And Anr. " reported in 2017 (1) SCC 45 and "North East Karnataka Transport Corporation v. Smt. Sujatha" reported in 2019 (11) SCC 514, held that the finding of fact cannot be re-appreciated while deciding the appeal against the award and the appeal filed against the award passed by the learned Commissioner is not maintainable if any substantial question of law is not involved. The Hon'ble Supreme Court in the case of Golla Rajanna (supra). It has been held in Para No. 8 & 10 as under:
"8. Section 30 of the Act provides for appeal to the High Court. To the extent, the provision reads as follows; 30.(Downloaded on 08/05/2025 at 10:02:23 PM)
[2025:RJ-JP:17497] (13 of 19) [CMA-1191/2016] Appeals.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely: (a) an order awarding as compensation a lump sum whether by way of redemption of a half- monthly payment or otherwise or disallowing a claim in full or in part for a lump sum: [(aa) an order awarding interest or penalty Under Section 4A;]
(b) an order refusing to allow redemption of a half-monthly payment; (c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant: (d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of Sub section (2) of Section 12; or (e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:
Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appeal and in the case of an order other than an order such as is referred to in Clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees (Emphasis supplied) Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial question of law, being a welfare legislation.
The similar view has been expressed by the Hon'ble Apex Court in the case of Smt. Sujatha (supra). It has specifically held in Para Nos. 9 to 12 as under:(Downloaded on 08/05/2025 at 10:02:23 PM)
[2025:RJ-JP:17497] (14 of 19) [CMA-1191/2016] "9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependants of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.
10. The aforementioned questions are essentially the questions of fact and, therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.
11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.
12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to section 96 of the Code of Civil Procedure, 1908 which can he heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."(Downloaded on 08/05/2025 at 10:02:23 PM)
[2025:RJ-JP:17497] (15 of 19) [CMA-1191/2016]
23. That there is no quarrel in respect of above legal proposition but the said judgments are distinguishable on the facts.
24. That the contention of the counsel for the respondent no. 4 and 5 that the findings drawn by learned Commissioner are based on questions of fact and no substantial questions of law involved in the present matter is also liable to be turn down for the simple reason that interpretation or construction of a document Ex.6 (Sale Certificate), Ex.11 (Cover Note) and perversity in the judgment is always regarded as a question of law. In the present matter, the learned Commissioner without examining the legal issue so raised by the appellant allowed the claim petition against the appellant and the reason so given are patently illegal and findings so recorded are suffered from perversity.
25. That if we examine the language of Ex.2 (FIR) lodged by Jhabarmal, it nowhere support the case of claimants. The relevant extract of Ex.2 is reproduced as under:-
^^ lknj uez fuosnu gS fd eSa esjs VzsDVj&Vzksyh esa I;kt Hkjdj e.Mh esa Vzksyh [kkyh djds jkr dks djhc 1 cts eSa esjs xkao lsok tk jgk FkkA flgksj ds igys lkeus esa ,d Vzd vk;k rks eSa Vzd dks lkbZM ns nh o uhps mrkj fy;k rks VzsDVj dks cpk dj Vzd us Vzksyh ds lkbZM esa ihNs fd vksj VDdj ekjh] ftlls esjh Vzksyh o VzsDVj iyVh [kk x;s] mlesa esjs lkFk esjs gh xkao ds jkeyky] lqjs'k] gjQwy xhj/kkjh FksA muesa ls Vzksyh ds uhps vkus ls gjQwy dh ekSds ij gh e`R;q gks x;hA** From a bare perusal of the same it is evident that in the FIR, it was never stated that deceased was engaged as a labour, (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (16 of 19) [CMA-1191/2016] further from Ex.2 it is also clear that as per the first version Jabarmal was alleged to be the driver of the vehicle but for the reason best known to the respondents the said version was changed and Baldeva Ram was implanted as driver and from the statement of Baldeva Ram AW-2 it is well proved that deceased was not travelling as labour of the employer (Jaita Ram). The relevant part of the cross-examination of AW-2 is reproduced here under:-
^^;g dguk lgh gS fd >kcjey vkSj gjQwy vkil esa fj'rsnkj gSA ;g dguk lgh gS fd >kcj vkSj gjQwy vius&vius I;kt eaMh esa cspus ds fy;s vk;s FksA** ^^;g dguk lgh gS fd gjQwy dksbZ ukSdjh ugha djrk FkkA ;g dguk lgh gS fd gjQwy vius I;kt lhdj esa cspdj tkrs le; nq?kZVukxzLr gks x;k FkkA** From the evidence of the claimants itself, the case set up by the claimants appears to be wholly false and untrue. Thus, it is evident that finding recorded by the learned Commissioner under the impugned award is contrary to the evidence on record and based upon no evidence.
That, in view of the discussion made hereinabove, it is evident that the learned Commissioner misread and mis-
interpreted the evidence available on record and reasons so recorded under the impugned award are perversed in the eyes of law.
26. That the learned Commissioner while deciding the issue No.1 has proceeded with absolutely wrong notion that the Insurance (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (17 of 19) [CMA-1191/2016] Company has failed to prove the defence. Therefore, it is held that deceased was employed as labour over the tractor and died during the course of his employment, such finding is perse illegal and contrary to well established principles of law that plaintiff has to stand upon his own legs and he cannot succeed on the basis of the weakness on the part of the defendant.
27. That the learned Commissioner also erred in deciding issue No.3 while observing that core questions involved in the matter has been decided against the appellant while giving detailed findings under the issue No.1, whereas a bare perusal to the finding of the learned Commissioner with regard to issue No.1, it is clear that question so raised was never discussed or dealt with. Thus, the manner in which the impugned order is passed cannot be said to be justified.
28. That from the record of the case, collusion between claimant, driver and owner is writ large as in the evidence it has come on record that they are relatives of each other and once claimant failed to prove the averments of the case, the respondent Baldeva Ram appeared as a witness of claimant to support the case of claimant.
29. That from the perusal of the evidence of claimant, it is established that claimants have utterly failed to prove the averments of the claim petition. Still compensation has been (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (18 of 19) [CMA-1191/2016] awarded and liability has been fastened on the Insurance Company against the settled proposition of law.
30. In that the present case indisputably as per Ex.6, the sitting capacity of the vehicle was one and as per Ex.11 only Rs.15/- was charged to cover the risk of driver, therefore, insurance company cannot be held liable for the death or injury to the occupant of the vehicle.
31. The aforesaid view is also supported from the judgment of Hon'ble Supreme Court in 2009 R.A.R. 89(SC) in the matter of United Insurance Company Limited vs. Serjerao & Ors. decided on 14.11.2007.
"8. So far as the question of liability regarding labourers travelling in trollies is concerned, the matter was considered by this Court in Oriental Insurance Company Ltd. vs. Brij Mohan & Ors., 2007 (7) SCALE 753 and it was held that the Insurance Company has no liability."
As well as the judgment passed by this Court reported in 2012 R.A.R. 41 (Raj.) in the matter of Shri Surendra Kumar & Anr. vs. Shri Narayanlal & Anr. decided on 05.05.2011, wherein it was held as under:-
"8. The insurance cannot be held liable for the death or bodily injury to the occupants of the vehicle."
32. Thus, in totality of facts and circumstances, it is evident that learned Commissioner has erred in fastening the liability to pay compensation upon the insurance company. The substantial (Downloaded on 08/05/2025 at 10:02:23 PM) [2025:RJ-JP:17497] (19 of 19) [CMA-1191/2016] question of law so raised by learned counsel for the appellant are answered in favour of the appellant.
33. Accordingly, the impugned order so far as it relates to fastening the liability upon Insurance Company, is set aside and it is held that the appellant- Insurance Company cannot be held liable for payment of compensation to the respondents.
34. Accordingly, the present appeal is partly allowed. The impugned judgment and award is hereby modified. The claimant shall be entitled to receive the awarded compensation of Rs.3,25,365/- and interest from respondent No.4 Baldeva Ram and respondent No.5 Jaitaram only and the claim petition qua the appellant is dismissed.
35. Since it has been held that no liability is payable by Insurance Company, therefore whatever amount has been deposited by the Insurance Company pursuant to the impugned award, the same is ordered to be refunded back to the appellant- Insurance Company.
36. The appeal is partly allowed in terms stated above.
37. Record of the learned Commissioner be sent back.
38. All pending application(s), if any, shall stand disposed of.
(MANEESH SHARMA),J
DEEPA RANI -43
Reportable : Yes
(Downloaded on 08/05/2025 at 10:02:23 PM)
Powered by TCPDF (www.tcpdf.org)