IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. No. 525 of 2006 The New India Assurance Company Limited ….Appellant. Versus Smt. Meena Bisht and another .. Respondents. Mr. T.A. Khan, learned counsel for the appellant. Mr. B.D. Pande, learned counsel for the claimant/respondent No.1. None has appeared on behalf of respondent No.2. Dated: 9-5-2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment and award, dated 10-7-2006, passed by the Workmen’s Compensation Commissioner/Deputy Labour Commissioner, Kumaon Region, Haldwani, (hereinafter referred as the Commissioner), in WC Case No. 25 of 2005, Smt. Meena Bisht Vs. Smt. Deepa Bhatt and another. 2- Brief facts giving rise to this appeal are that Keshar Singh, husband of the claimant Smt. Meena Bisht, was employed driver in Truck No. U.P. 02-3737. On 29-1-2004, the said truck was coming Almora from Haldwani after loading goods in it. Keshar Singh driver of the said truck was kidnapped by two unknown person before reaching Bhimtal and was murdered. According to claim petition, Kesar Singh was getting Rs. 3,500/- per month as salary and Rs. 500/- per month towards food expenses. The deceased at the time of his death was 39 years of age. The claimant filed petition for compensation in lieu of death of Kesar Singh before the learned Commissioner. 2 3- The Opposite Party, owner of the offending Truck filed written statement and admitted the employment of deceased Kesar Singh on her Truck No. U.P. 02-3737, but alleged that she used to give Rs. 3,500/- per month to him including food expenses. She also admitted that the death of Keshar Singh has occurred during the course of his employment, when he was plying the Truck. She also alleged that the Truck was insured with New India Assurance Company and its driver had valid driving license. Therefore, the liability of compensation, if arises, the same is upon the insurer. 4- The Opposite Party, New India Assurance Company also contested the petition by filing its written statement denying the allegation made in the petition. It alleged that the deceased was kidnapped and the story of his murder during the course of his employment is concocted one. Therefore, the insurance company cannot be held liable to pay compensation. 5- The learned Commissioner, after perusing the material on record, allowed the petition for a sum of Rs.3,27,075/- as compensation against New India Assurance Company and further awarded a sum of Rs. 91,581/- interest @ 12 % per annum for the period 29-1- 2004 to 29-5-2006, payable by Opposite Party No.1, owner of the Truck, for the delay caused on her behalf in the disposal of the petition. 6- Feeling aggrieved, the New India Assurance Company has preferred this appeal, before this Court. 7- I have heard learned counsel for the parties and perused the record. 3 8- Learned counsel for the appellant has submitted that the deceased at the relevant time has left his truck in the workshop at Bhimtal under the supervision of cleaner and he himself went to meet his relative or friend at village Tyura and due to slip of leg from the top of the hill, he fell down and died, therefore, the death of the deceased cannot be treated to be during the course of his employment, and the learned Commission totally ignored the above facts of the case, and wrongly took the decision to pay compensation in lieu of death of deceased Keshar Singh, and the impugned judgment and award is liable to be set aside. 9- On the other hand, learned counsel for the claimant/respondent has refuted the submission raised by learned counsel for the insurer/appellant and supported the impugned judgment and award. 10- After having considered the submission raised by learned counsel for the appellant and perusing the material on record, I do not find any substance in the submission advanced by learned counsel for the appellant. The case of the claimants is that at the place of occurrence deceased Keshar Singh left his truck in order to make a call from nearby S.T.D. to his son at Almora, suddenly two unknown persons caught hold of him and put him in the jeep No. 03/1586 standing at some distance, murdered him and his dead body was thrown near Village Jaglia, which was recovered on 30-1- 2004. The owner Smt. Deepa Bhatt also examined her in the case and admitted that the deceased was employed as driver on the offending truck and he was murdered in the way when he was plying the truck. Against the above evidence brought on record by the claimants, as well as the statement of Smt. Deepa Bhatt, owner of the 4 offending Truck, the New India Assurance Company did not adduce any evidence to prove its allegation otherwise. The cleaner of the offending truck would have been the best witness to tell all the facts, but no efforts were made from the side of the insurer to get him produced before the learned Commissioner. The so called report of investigator, by which this fact came to the notice of the insurance company, that the deceased had fallen down from hill and died, while he was going to the village of his relative or friend, has also not been produced before the learned Commissioner. In the aforesaid facts and circumstances of the case, the learned Commissioner has rightly concluded that the deceased Keshar Singh has died during the course of his employment and the claimants are entitled to get compensation in lieu of death of the said workman. 11- The owner of the offending Truck has filed copies of insurance policy, driving license and registration of the vehicle and the same were found to be effective and valid. The monthly salary of Rs. 3,500/- of the deceased was admitted by the employer. The age of the deceased has been stated to be of 39 years, therefore, the learned Commissioner was justified in calculating the dependency of the claimants taking into consideration the monthly salary of Rs. 3,500/- at the age of 39 years. The finding recorded by the learned Commissioner does not require any interference by this Court. 12- For the discussion made above, the appeal lacks merit and is liable to be dismissed. 13- Accordingly, the appeal is dismissed. The impugned judgment and award dated 10-7-2006 is confirmed. 5 14- The interim order dated 6-9-2006 stands vacated. (B.C. Kandpal, J.) ISB 6