IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 727 of 2006 Bishambhar & another …Appellants Versus Manoj Kumar Khanna & others ... Respondents Sri Shashi Kant Shandilya, Advocate for appellants Sri M.K. Goyal, Advocate for respondent no. 3 Dated: July 24, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 30 of Workmen’s Compensation Act, 1923, has been filed by appellants-claimants against the judgment and award dated 30.01.2006 passed by the Workmen’s Compensation Commissioner, Haridwar, in W.C.A. No. 01 of 2004, Bishambhar vs. Manoj and another, whereby claim petition filed by claimants has been dismissed. Brief facts of the case as narrated in the claim petition are that deceased-Sundara was employed as Conductor over Vehicle No. U.P.07C/9644 owned by opposite party no. 1. Opposite party no. 1 was the registered owner, opposite party no. 2 was the driver of said vehicle and opposite party no. 3 was the insurer of said vehicle. Deceased-Sundara was sitting on the seat of conductor and opposite party no. 2 was driving the vehicle rashly and negligently, on 21.11.2003 and when it reached near Belri Salfar at about 8.00 p.m., driver of said truck being driven by its driver rashly and negligently, hit tractor No. P.B. (E)-4544 coming from Belri village, due to which the said truck overturned and deceased-Sundara was crushed beneath the truck and died at the spot itself due to injuries sustained by him in the accident. The deceased-Sundara used to get a sum of Rs.5000/- per month as salary and a sum of Rs.50/- per day for diet. The claimant claimed a sum of Rs.22,00,000/- as compensation against the opposite parties, along with interest @ 18% per annum from the date of filing the petition. On 25.5.2004, opposite party no. 3-The New India Assurance Co. Ltd. filed objection and not admitted the paragraph of claim petition that deceased was workman under the employment of opposite party no. 1 and the fact that deceased died due to injuries sustained by him in the accident, was to be proved by claimant. It has pleaded that this factum that deceased was being getting a sum of Rs 2500/- per month and Rs.50/- per day for diet, as a conductor, by opposite party no. 1, was also to be proved by the claimant. It has further pleaded that as far as age of deceased is concerned it is averred as more than 15 years at one place and 19 years in the same para which shows contradiction and itself belies the story that deceased was employed as conductor because a person below 18 years of age cannot be employed as conductor. It has also pleaded that Vehicle No. U.P. 07C/9644 was insured with New India Assurance Co. Ltd. in the name of Manoj Kumar Khanna, which is valid w.e.f. 26.6.2003 to 25.6.2004. Hence, the claim petition filed by claimants for compensation is liable to be dismissed. The claimants filed photo copies of all the papers relating to insurance of vehicle, driving licence and registration certificate of Truck No. U.P.07C/9644. Opposite party no. 1-Manoj Kumar Khanna filed written statement and pleaded that he is the registered owner of Vehicle No. U.P.07C/9644. He also pleaded that the said vehicle overturned due to collision of truck with Tractor No. P.B.(E)-4544 on 21.11.2003 in between Bahadarabad and Roorkee, in which a person died and information in this regard was immediately given by him to insurance company. It has further pleaded that this statement of claimants is wrong that deceased was conductor or workman of objector/opposite party no. 1. It also denied that said vehicle was insured with The New India Insurance Co. Ltd. for all type of risks w.e.f.26.6.2003 to 25.6.2004 by way of policy cover note number 0518430. It further denied that in case, if any liability is fixed for alleged fault of objector/opposite party no. 2, then payment falling on the share of objector shall be payable by opposite party no. 3-The New India Assurance Co. Ltd. Opposite party no. 2-Mohkam Singh filed written statement admitting the factum that he is the driver of Truck No. U.P.07C/9644. He pleaded that when he was plying the said vehicle and vehicle reached in between Bahadarabad and Roorkee on 21.11.2003, driver of Tractor No. P.B.(E)-4544 came rashly and negligently and collided with truck in question, due to which truck overturned and a person died and information in this regard was immediately given on 24.11.2003 by owner of truck to insurance company. He further reiterated the facts as mentioned in the claim petition produced by opposite party no. 1. The learned Workmen’s Compensation Commissioner on the basis of pleadings adduced by the parties framed following issues in the claim petition: (1) Whether deceased-workman is defined as ‘workman’ under the Workmen’s Compensation Act? (2) Whether deceased was employed as employee under opposite parties no. 1 and 2? If yes, its effect? (3) Whether deceased died on account of injuries sustained by him during the course of his employment? If yes, its effect? (4) Whether compensation claimed is payable on opposite parties? (5) Whether opposite parties are liable to pay compensation claimed? Parties led evidence in support of their cases. The learned Tribunal after having considered the entire material available on record and hearing learned counsel for the parties dismissed the claim petition vide judgment and award dated 30.1.2006. Feeling aggrieved by the aforesaid impugned judgment and award the appellants–claimants have preferred the appeal before this Court. Heard Sri Shashi Kant Shandilya, learned counsel for appellants-claimants, Sri M. K. Goyal, learned counsel for respondent no. 3-insurance company and perused the record. The short controversy involved in this case is as to whether the deceased died during the course of employment of opposite party no. 1 or not. The learned Workmen Compensation Commissioner after having considered the entire material available before it and hearing learned counsel for parties, has recorded a categorical finding that claimant-Bishambhar has been fully unable to prove issue nos. 1, 2 and 3 framed in his claim petition, as owner of Vehicle No. U.P. 07C- 9644 deposed in his statement that on 21.11.2003 his truck No. U.P.07C-9644 met with an accident, information of which was given to him by the driver. Deceased-Sundara had neither been serving with me and nor was conductor over his Truck. This witness further stated that he did not know the deceased-Sundara. This witness further stated that he himself had been engaging drivers, conductors and all servants on job and also had been paying the salary to them. Apart from this, the brother of deceased-Rajendra had given a written report to Police Station Kotwali, Roorkee on 23.11.2003, in which it has been mentioned that on 21.11.2003 at about 7.30 p.m. his brother-Sundara, along with cousin-Harinder was going from Garhmeerpur to Roorkee through Truck No. U.P.07C-9644 and at about 8.00 p.m. near Berli Salfar the said truck met with an accident due to collision with a Tractor. The brother of deceased Rajendra has nowhere mentioned in his written report lodged at P.S. Kotwali that his deceased-brother was sitting in the capacity of conductor over the Truck, rather it has been stated by him that deceased-brother was going to Roorkee through Truck No. U.P.07C-9644 and his cousin were also accompanied with his deceased-brother, both of them started for Roorkee from Garhmeerpur. Besides this, on 25.10.2004 the driver of vehicle in question-Mohkam Singh stated in his objection that this statement of claimants is wrong that deceased was employed as conductor with him. The Tribunal held that since claimants did not able to prove issue nos. 1 and 2 with regard to establish this fact that deceased comes within the definition of ‘workman’ under Workmen’s Compensation Act and employment of deceased lies under opposite parties no. 1 and 2, hence, there was no justification to decide other issues. Therefore, I am of the view that the Workmen’s Compensation Commissioner in the absence of any specific plea with regard to proof of employment of deceased under opposite parties no. 1 and 2, rightly dismissed the claim petition filed by claimants. I do not find any infirmity in the assessment of the evidence made by the Workmen Compensation Commissioner and finding recorded by Workmen Compensation Commissioner in this regard needs no interference. For the reasons stated above, the appeal lacks merit and is liable to be dismissed. Accordingly, the appeal is dismissed. The impugned judgment and award dated 30.01.2006 passed by Workmen’s Compensation Commissioner, is hereby confirmed. (B.C. Kandpal, J.) SP