HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s Order whether the case is or not approved for reporting) (Chapter VIII Rule 32 (2) (b) Description of the case Appeal Against Order No.174 of 2002 United India Insurance Co. Ltd. ….Appellant Vs. Rajendra Prasad Sharma & another ………..Respondents Approved for reporting Not approved for reporting Date of Decision31, March 2008 Initial of Judge: (B.C. Kandpal, J.) IN HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal Against Order No. 174 of 2002 United India Insurance Co. Ltd. Through its Divisional Manager Divisional Office Tikonia, Nainital Road Haldwani, District Nainital ………. Appellant Versus 1- Rajendra Prasad Sharma S/o Sri Vidya Dutt Sharma, R/o Daak Line, Laxmanpuri, Launduar Marg, Massorie, Dehradun 2- Naresh Chandra S/o Sri Mohan Lal, R/o 258-259 Luandaur, Massorie, Dehradun ……… Respondents Sri Narsh Pant, learned counsel for the appellant. Sri D.S. Mehta, holding brief of Sri M.C. Pant, Advocate, for respondent no.1. Dated: March 31, 2008 Hon’ble B.C. Kandpal, J. This is an appeal under Section 30 of Workmen’s Compensation Act, 1923, against the judgment and award dated 6.6.2002 passed by Commissioner Workmen Compensation in W.C.A. Petition No. 9 of 1999, thereby allowing the claim Petition for a sum of Rs. 1,91,760/- @ 12% per annum w.e.f. 27.7.1999 till the deposit of the amount. The claimant-injured Rajendra Prasad Sharma filed an application under Workmen’s Compensation Act, 1923, against the opposite parties for compensation on account of his injuries sustained in the motor accident. According to claimant-injured, he was employed as driver on Vehicle No. UP 07/E-0084 owned by Sri Naresh Chandra. On 27.6.1999 claimant-injrued was coming to Ghantaghar Massorie by Vehicle No. UP 07/E-0084 and when he reached near Sweeper Colony, suddenly some animals came across the road and he tired to save the animals but the vehicle fell in the ditch, as a result of which the claimant sustained grievous injuries on his person. The claimant has pleaded that the accident occurred during the course of discharge of his duties. The Claimant has also pleaded that he used to get Rs. 3000/- per month as salary and he was 48 year of age at the time of accident. Claimant- injured has also given the information to respondents no. 2-insuane company regarding the accident. The claimant has thus filed the claim petition for compensation of Rs. 1,91,760/-, along with an interest of 12% per annum from the date of accident. The appellant as well as respondent no.2- Naresh Chandra filed their written statements before the Workmen Compensation Commissioner. Respondent no.2 has pleaded in this written statement that injured was working as a driver on casual basis in his employment and whenever he used to drive the vehicle, respondent no.2 i.e. employer paid him Rs. 100/- per day. He has further pleaded that vehicle in question was insured with United India Insurance Company Ltd./appellant before this Court. The appellant/insurance company had also filed the written statement denying the allegations made by the claimant. The Workmen Compensation Commissioner after having considered the entire material available on record and hearing learned counsel for the parties, allowed the claim petition for a sum of Rs. 1,91,760/-, along with an interest of 12% per annum, against the insurance company, vide judgment and awarded dated 6.6.2002. Feeling aggrieved by the aforesaid judgment and award, the appellant-insurance company has preferred the appeal, under Section, 30 of Workmen’s Compensation Act, before this Court. Heard Sri Naresh Pant, learned counsel for the appellant, Sri D.S. Mehta, holding brief of Sri M.C. Pant, learned counsel for respondent no. 1 and perused the record. None has appeared for respondent no.2. The main ground which has been taken by the counsel for the appellant is that the injured did not come within the definition of workman in view of the provisions envisaged under the Act in Section 2(1)(n) of Workmen’s Compensation Act, 1923. Therefore, the compensation under the Workman’s Compensation Act could not have been granted to the claimant. In support of his contention learned counsel for the appellant has invited my attention towards the decision of the Hon’ble Apex Court, reported in (2006) 1 SCC 377, Central Mine Planning & Design Institute Ltd. vs. Ramu Pasi & another. I have carefully considered the judgment cited by learned counsel for the appellant, wherein it has been held “a bare reading of the said Act shows that the expression “workman” as defined in the Act does not cover a casual worker. There was also no definite material adduced to show that the claimant was employer for the purposes of the employer’s trade or business.” In the instant case, the record reveals that the claimant-Rajendra Prasad Sharma has pleaded in the claim petition that he was working as a workman with Naresh Chandra as a driver on the vehicle owned by Naresh Chandra and he sustained the injuries during the course of discharge of his duties. The claimant in support of his case produced Smt. Anju Sharma, wife of the claimant- Rajendra Prasad Sharma. This witness in her cross- examination has stated that her husband Rajendra Prasad Sharma was working as a driver under the employment of Naresh Chandra. She has also stated that her husband-Rajendra Prasad Sharma used to get Rs. 3000/- per month as salary from Naresh Chandra, owner of the vehicle. The insurance company in its cross-examination has put the suggestion to this witness as to whether the injured was under the regular employment of owner of vehicle and as to whether he used to get salary form the employer/owner of vehicle and the said suggestion has been specifically denied by the witness. Further, the owner of vehicle has been produced before the Workmen’s Compensation Commissioner and he has deposed in his statement that the injured-Rajendra Prasad Sharma was not in regular employment on the vehicle owned by him. He has also sated that injured-Rajendra Prasad Sharma did not get the salary for a sum of Rs. 3000/- per month form him, but he has stated in his cross-examination that he did not take this plea in his written statement that injured- Rajendra Prasad Sharma used to drive the vehicle of other Persons. The different stand taken by owner of the vehicle in the written statement as well as in his cross-examination before the Workmen Compensation Commissioner does not bring him within the ambit of creditworthy person. Why he had taken the different stand at various stages is best known to him only. Learned counsel for the appellant has although taken the plea before this Court that the injured was a casual labourer and he was not in the regular employment on the vehicle owned by Naresh Chandra, but perusal of the written statement filed by insurance company before the court below nowhere indicates that the insurance company has taken this special plea that the injured-Rajendra Prasad Sharma does not come within the definition of workman as he was doing the job as a casual labourer. In view of the absent of specific plea taken by the insurance company in the written statement before the court below, I am not in a position to appreciate the arguments advanced by learned counsel for the appellant before this Court. The claimant has taken this specific plea in his claim petition that he was under the employment of Naresh Chandra at the time of accident as he was driving the vehicle and he sustained injuries while doing the job under the employment of Naresh Chandra. Wife of injured- Rajendra Prasad Sharma has been produced as a witness before the court and she has supported the contents made in the claim petition by stating that her husband was in regular employment of Naresh Chandra as he was driving his vehicle. In view of the aforesaid evidence available on record, I come to the conclusion that the decision cited by Sri Naresh Pant, learned counsel for the appellant, in support of his contention, does not apply to the facts and circumstances of the present case. I do not find any infirmity in the impugned judgment ad award passed by Workmen Compensation Commissioner. There does not appear any ground to set aside the impinged judgment and award passed by Workmen Compensation Commissioner. The appeal lacks merit and is liable to be dismissed. Accordingly, the appeal is dismissed. The impugned judgment and award passed by Workmen Compensation Commissioner, is hereby confined. (B.C. Kandpal, J.) SP