IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 98 of 2003 Oriental Insurance Co. Ltd. through its Divisional Manager, Divisional Office, Bhotia Parao Haldwani, District Nainital .. Appellant. Versus 1. Sri Anand Singh S/o Sri Kalyan Singh R/o Village Qwarali P.O. Jhupal Chaura, District Almora. 2/1. Smt. Reena Gujral W/o late Pawan Kumar 2/2. Sri Amit Gujral S/o late Pawan Kumar, 2/3. Km. Neha Gujral D/o late Pawan Kumar 2/4. Mrs. Divya Sharma D/o late Pawan Kumar W/o Sri Saurabh Sharma, All R/o F-11, Judge Farm, Near I.T.I. Rampur Road, Haldwani District Nainital ..Respondents. Mr. Prabhat Pandey, learned counsel for the appellant. Mr. K.C. Pant, Advocate for the respondents. Dated: 27-02-2008 Hon’ble B.C. Kandpal, J. This Appeal Under Section 30 of Workmen Compensation Act, 1923, has been preferred by the Oriental Insurance Company against the judgment and order dated 27-2-2003 passed by Commissioner for Workmens Compensation/District Magistrate, Nainital in W.C.C. No. 1 of 1998. 2- Brief facts giving rise to this appeal are that Chandan Singh son of the claimant/respondent Anand Singh was employed as driver on the truck No. U.G.P. 4077 owned by respondent No.2 Pawan Kumar. On 27-8- 1990 Chandan Singh was plying the aforesaid truck from Lohali to Haldwani and in the way near Maharagaon the truck fell into a ditch due to some mechanical defect. The driver sustained grievous injuries in the said accident. He was admitted in the B.D. Pandey Hospital at Nainital where he succumbed to his injuries on 28-8-1990. The claimant filed petition for award of compensation before Workmen Compensation Commission. According to the petition the deceased at the time of accident was 23 years of age and he was getting Rs. 1,600/- per month as salary. 3- The respondent No.1/owner of the truck filed his objection before the Workmen Compensation Commissioner (hereinafter referred as ‘the Commissioner’) denying the allegations made in the petition and alleged that the vehicle at the time of accident was insured with Oriental Insurance Company and the Insurance Company is liable to pay the compensation. 4- The Oriental Insurance Company also contested the petition by filing objection and alleged that the petition has been filed beyond the period of limitation. The Insurance Company also took the plea that the cover note of the vehicle was procured by its owner by playing fraud in collusion with one Devendra Kumar, the Agent of Kashipur Branch of the Insurance Company. Therefore the Insurance Company is not liable to pay any compensation. 5- On the pleadings of parties, the Workmen Compensation Commissioner framed the following issues:- 1- Whether the deceased Chandan Singh, driver of truck No. UGP 4077 comes within the category of workmen under Workmen Compensation Act?. If so, its effect?. 2- To what amount of compensation the claimant is entitled to get and from whom? 3- Any other relief to what the claimant is entitled to get?. 4- The learned Commissioner decided issue No. 1 in favour of the claimant holding that this fact is admitted to the respondent No. 1 owner of the ill-fated vehicle that the deceased Chandan Singh was employed as driver in the vehicle and he was workman. While deciding issue Nos. 2 and 3 the Commissioner has awarded Rs. 88,548/- along with 6% interest from the date of accident. The Insurance Company/ O.P. No.2 was directed to pay the compensation. 5- Feeling aggrieved the Insurance Company has preferred this appeal before this Court. 6- Heard learned counsel for the parties and perused the record. 7- The learned counsel for the appellant/ Insurance Company has not disputed the amount of compensation awarded in favour of the claimant. However, he has submitted that the cover-note has been obtained by the owner of the vehicle by fraud in collusion with Devendra Kumar, therefore, the Insurance Company is not liable to pay any compensation and recoverable rights be given to the Insurance Company. Learned counsel also submitted that learned Single Judge of this Court vide judgment dated 27-9-2007 passed in A.O. No. 435/2004 Oriental Insurance Company Vs. Smt. Rewti Devi and others, which was pertaining to same accident, has given recoverable rights to the Insurance Company, therefore, n the present case also the recoverable rights be given by applying the ratio of the above judgment. 8- Perusal of the above judgment rendered by the learned Single Judge, it reveals that the matter of fake cover note was considered and the finding recorded by the Tribunal was upheld where the Tribunal has held that if the fraud has been committed by Naresh Kumar on the Insurance Company so the Insurance Company should take necessary action against Naresh Kumar and his agent Devendra Kumar if they so desire but the Insurance Company was held liable to pay the compensation. 9- The learned Single Judge has found no illegality in the judgment and award of the Tribunal and the appeal preferred by the Insurance Company was dismissed. However in paragraph 15 of the judgment the learned Single Judge has observed that in case the said cover note is found fake, the recoverable right is given to the Insurance Company. 10- Applying the ratio of above judgment rendered by the learned Single Judge the recoverable right is granted to the insurance company to recover the amount in case the said cover note is found fake. Rest of the findings recorded by the Commissioner are confirmed. 11- Consequently the appeal is dismissed. No order as to costs. (B.C. Kandpal, J.) ISB