Himachal Pradesh High CourtOriental Insurance Company vs Smt. Vrinda Devi And Others on 9 December, 2015Author:Sanjay KarolBench:Sanjay KarolIN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                       FAO No.378 of 2007
                       Date of Decision : December 9, 2015




                                                          .Oriental Insurance Company                ....Appellant.versus
       Smt. Vrinda Devi and others                 ...Respondents.Coram:The Hon'ble Mr. Justice Sanjay Karol, Judge.of
       For the Appellant     :   Mr.   G.C.    Gupta,   Senior
                                 Advocate, with Ms Meera Devi,
                                 Advocate.For the Respondents :rt               Mr. Raman Sethi, Advocate, for
                                 respondents No.1 to 4.Sanjay Karol, Judge

                  Appeal stands admitted on the following


       substantial questions of law:1.   Whether it has been proved on the
                       record that the deceased was a




                       workman as per provisions of theWorkmen Compensation Actand died





                       while he was driving the vehicle during
                       the course of his employment?2.   Whether in the case of a petition under





                       theWorkmen Compensation Act, it is
                       not required that the deceased should
                       possess a valid and effective driving
                       licence at the time of accident to make
                       the Insurance Company liable to pay
                       the compensation.::: Downloaded on - 15/04/2017 19:27:41 :::HCHP...2...3.   Whether     in    the    facts    and
                     circumstances of the case it has been
                     proved on the record that the
                     deceased died in the accident during
                     the course of his employment with




                                                       .respondent No.5?4.         On 3.3.2003, vehicle owned by Surinder





     Singh (respondent No.5 herein), driven by his brother

     Mohender Singh (deceased), met with an accident, as a




                               of
     result of which Mohender Singh died.                Claimants

     (respondents No.1 to 4 herein), as his legal heirs, filed

     a petition for grant of compensation, under the
              rtWorkmen Compensation Act, in which compensation in

     the following terms stands awarded:"For reasons recorded hereinabove all
                the issues are decided in favour of the


                applicants and application for compensation
                is accepted.     Compensation amount is
                awarded at the age of factor of 32 years,
                wages Rs.4000/- with interest @12% is




                granted keeping in view the judgement
                passed in FAO No.145 of 1998 decided on





                26.5.2005, which shall be paid byh the
                respondent No.2 to the defendants of the
                deceased      Workman       as    calculated





                hereunder:1. Compensation award on age factor 32
                   years 2000/-X203.85    =     4,07,7002. Interest @ 12% w.e.f.(03.04.2003 to 22.05.2007) = 1,95,696

                                      Total        = 6,03,396::: Downloaded on - 15/04/2017 19:27:41 :::HCHP...3...5.         Assailing   the   award     dated       22.5.2007,

     passed by Workmen Compensation Commissioner,

     Rampur Bushahr, District Shimla, Himachal Pradesh, in




                                                       .Case No.4/05 (3/06), titled as Smt. Vrinda Devi &

     others v. Surinder Singh & another, Mr. G.C. Gupta,





     learned Senior Advocate, appearing for the Insurer,

     refers to and relies upon the decisions rendered in




                                  of
     Gottumukkala Appala Narasimha Raju and others v.National Insurance Co. Ltd. and another, 2007 ACJ
               rt
     1025;Oriental Insurance Co. v. Santosh Devi and

     another, 2011 (Suppl.)Him L.R. 1715; and Brahmu

     Ram and another v. United India Insurance Company

     and another, 2009(2) Shim.LC 26.6.         On the other hand, while supporting the

     award, Mr. Raman Sethi, learned counsel appearing for




     the claimants, refers to and relies upon the decisions





     rendered inT.S.Shylaja v. Oriental Insurance Company





     & another, I (2014) ACC 132 (SC); andOriental

     Insurance Company v. Deepa & others, III (2014) 218

     (HP).7.         At the threshold, it be only observed that

     the cases referred to and relied upon by Mr. G.C.::: Downloaded on - 15/04/2017 19:27:41 :::HCHP...4...Gupta, learned Senior Advocate, are not applicable to

     the given facts and circumstances.8.            Noticeably, the claimants, in the claim




                                                          .petition, have categorically averred that Mohender

     Singh was employed by Surinder Singh as a driver. The





     vehicle in question was insured with the Insurer.Mohender Singh, at the time of accident, which took




                                 of
     place on 3.3.2003, was on duty and died on the spot.Report was instantly lodged with the police and FIR
               rt
     No.17, dated 3.3.2003 was registered at Police Station,

     Ani, District Kullu, Himachal Pradesh. Claimants being

     dependents and legal heirs were entitled for just and

     fair compensation.9.            In response to the petition, the owner not

     only admitted contents of the application, but also




     categorically asserted such fact.10.           Significantly, in response to the petition,





     Insurer did not plead collusion or fraud and except for

     mere denial with regard to the factum of employment

     or    death   having   occurred   during      the     course       of

     employment, did not make any assertions.::: Downloaded on - 15/04/2017 19:27:41 :::HCHP...5...11.           Record   reveals    that      the      factum        of

     employment and death having taken place during the

     course of employment, as a result of the accident,




                                                          .stands established through the evidence led by the

     claimants. Whereas no evidence whatsoever was led





     by the Insurer, but however, the owner stepped into

     the witness box and proved the factum of employment




                                 of
     and the driver possessing a valid and effective driving

     licence. It is in this backdrop that the decisions in T.S.
                rtShylaja(supra) andDeepa(supra), referred to and

     relied upon by the learned counsel for the claimants,

     are squarely applicable to the instant facts.12.           The initial burden of proving the factum of



     employment and death having taken place during the

     course   of    employment    stood     discharged         by     the




     claimants, hence it was for the Insurer to disprove the





     same.13.           Even in Gottumukkala (supra), the Court

     has acknowledged certain fact situations, where even a

     husband can be under employment of the wife.14.           Hence, it cannot be said that the claimants

     have failed to prove that the deceased was a workman::: Downloaded on - 15/04/2017 19:27:41 :::HCHP...6...or did die during the course of employment or that he

     did possess a valid and effective driving licence at the

     time of occurrence of the accident.                  Substantial




                                                          .questions of law are answered accordingly.Appeal stands disposed of, so also the





     pending application(s), if any.of
                                                   ( Sanjay Karol ),
     December 9, 2015(sd)                              Judge.


              rt::: Downloaded on - 15/04/2017 19:27:41 :::HCHP