In the High Court of Punjab and Haryana at Chandigarh ...... F.A.O. No.1663 of 2011 (O&M) ..... Date of decision:2.9.2011 Tata AIG General Insurance Company Ltd. .....Appellant v. Poonam and others .....Respondents .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ...... Present: Mrs. Vandana Malhotra, Advocate for the appellant. Mr. Ashwani Gaur, Advocate for respondents No.1 to 5. Ms. Rajwinder Kaur Joshi, Advocate for respondent No.6. ..... Mohinder Pal, J. Tata AIG General Insurance Company Limited (hereinafter referred to as `the Insurance Company') has preferred this appeal against the order/award dated 14.12.2010 passed by the Commissioner under the Workmen's Compensation Act, 1923, Circle 2, Sonepat (hereinafter referred to as `the Commissioner’) whereby the claimants- respondents Nos.1 to 5 herein, i.e. dependents of deceased Siri Bhagwan, who was working as a Driver on tractor bearing registration No.HR-10N- F.A.O. No.1663 of 2011 (O&M) [2] 8051, belonging to respondent No.6-Sumit, were held entitled to compensation to the tune of `4,00,017/- along with interest at the rate of 12 per cent from the date of filing of petition i.e. from 7.4.2010 to the date of award i.e. 14.12.2010 i.e. `32,935/- total amounting to `4,32,952/-. However, since the vehicle of respondent No.6-Sumit, i.e. tractor bearing registration No. No.HR-10N-8051, on which Siri Bhagwan had been employed as a Driver, was insured with the Insurance Company (appellant), the Commissioner held that the Insurance Company would be liable to pay the said amount. It was further ordered by the Commissioner that in case the appellant fails to deposit this amount before it within 30 days, the appellant would also be liable to pay further simple interest at the rate of 12 per cent per annum on the amount of compensation only from the date of the order till its realization. The workman-Siri Bhagwan, aged about 40 years, was working as a Driver on tractor owned by respondent No.6-Sumit and was earning `8,000/- per month. On 21.2.2010 at about 12.15 p.m., when Siri Bhagwan while driving the tractor reached at the bridge of Drain No.8, G.T. Road, Pio Maniari, all of a sudden a cow came running in front of the tractor trolley and to save the cow he applied emergency brakes as a result of which the tractor trolley along with Siri Bhagwan and one occupant, namely, Ravi Parkash, fell in the drain after breaking the grills. It is submitted that Ravi Parkash took a jump cautiously while Siri Bhagwan fell in the drain along with the tractor trolley and suffered multiple injuries. He was taken out of the drain and brought to General Hospital, Sonepat, where he was declared as brought dead by the doctor on duty. Post mortem F.A.O. No.1663 of 2011 (O&M) [3] on the dead body of Siri Bhagwan was conducted by the Doctor of the Hospital and the Police recorded DDR No.35 dated 21.2.2010 on the statement of Ravi Parkash. The claimants, alleging that Siri Bhagwan had died during the course of his employment with respondent No.6 herein while working as a Driver on tractor bearing No.HR-10N-8051, claimed compensation to the tune of `10,00,000/-. Respondent No.6 admitted the factum of accident and the death of workman during the course of employment with him. He also averred that the deceased was getting `6,000/- per month as salary/wages and he also used to give him wheat and paddy and in this way he was earning a total amount of `8,000/- as salary per month. He further averred that if any amount of compensation was payable to the claimants, the same would be indemnified by the Insurance Company being insurer of the tractor. However, the Insurance Company denied its liability with regard to the claim of the claimants by alleging that there was no relationship of the employee and employer between the deceased and respondent No.6. During the course of arguments, learned counsel for the Insurance Company (appellant) has argued that there was no proof on the record that the deceased was employed with respondent No.6 and had been drawing a salary of `8,000/- per month. It is argued that the deceased was brother-in-law of respondent No.6 and had borrowed the tractor in question from respondent No.6 on the date of accident. The deceased was serving as a Clerk in TDI. Therefore, it is argued that the deceased was not an employee of respondent No.6 and there was no relationship of master and F.A.O. No.1663 of 2011 (O&M) [4] servant between respondent No.6-Sumit and the deceased, in whose name the Insurance Policy had been issued. Thus, the appellant can not be held liable to pay compensation to the claimants. It is further submitted that even in the claim form submitted by respondent No.6 for getting the damage claim of the tractor, he stated that his relative Siri Bhagwan was driving the vehicle at the relevant time. It is further submitted that respondent No.6- Sumit chose to remain absent and appeared only after the adverse evidence was led against respondents No.1 to 5 which shows that he was deposing falsely in favour of respondents No.1 to 5. On the one hand, he stated that his signatures were obtained on the blank papers by the Investigator-Sachin Gulati (RW-1) of the Insurance Company and on the other hand, he denied his signatures on Mark-‘A’. He never lodged any complaint to the appellant or the police against the Investigator for obtaining his signatures on blank papers. It is further submitted that the learned Commissioner wrongly interpreted the provisions of the policy meant for owner-driver. In the present case, the owner has only paid the premium for compulsory Personal Accident for owner/driver. Thus, the above mentioned provision and premium does not cover the risk of the deceased other than the owner-driver i.e. respondent No.6. In response, learned counsel for the respondents have referred to the cover note issued at the time of Insurance of the vehicle and argued that the vehicle was comprehensively insured. Learned counsel has opposed the contention of the appellant and argued that the Surveyor’s report was only for the damage and no signatures were given by respondent No.6 and argued that from the statements of Poonam (PW-1), Ravi Kumar F.A.O. No.1663 of 2011 (O&M) [5] (sic. – Ravi Parkash) PW-2 and from the statement of Sumit (RW-2), it was duly proved that deceased Siri Bhagwan was employed as a Driver on tractor No.HR-10N-8051 owned by respondent No.6 and he met with an accident on 21.2.2010 during the course of his employment and died on the same due to the injuries sustained by him in that accident. But, in the policy that the vehicle has been comprehensively insured has not been mentioned. Once in the cover note of the policy, the vehicle has been comprehensively insured, and a person at the relevant time was possessing valid driving licence, then the Insurance Company cannot escape the liability by saying that he was not employee of the owner of the vehicle. I have given my careful thought to the arguments raised by learned counsel for the appellant. However, I do not find any substance therein. Admittedly, the Insurance Policy was in the name of Sumit (respondent No.6) and the Policy had not expired at the time of accident. Sumit had denied his signatures on the Surveyor’s report. The appellant has not taken any steps to verify and prove the signatures of respondent No.6 on the alleged statement recorded before the Investigator. The appellant could not prove its contention regarding the statement of Sumit by producing any witness in whose presence Sumit had made the said statement or signed the said statement. RW-1 Sachin Gulati (Investigator) has stated in his evidence that he has also recorded the statement of Smt. Poonam (PW-1), but the same was neither made part of the investigation report nor produced on the file along with the investigation report. As per the statement of RW- 1 and as per investigation report, the deceased Siri Bhagwan was stated to be working as Clerk with TDI Company, but as per respondents he was F.A.O. No.1663 of 2011 (O&M) [6] working on the tractor owned by respondent No.6. The appellant could not produce any witness from the TDI Company to prove the employment of the deceased as Clerk with them. Respondent No.6-Sumit has denied the relationship of sister with respondent No.1. The appellant could produce evidence to prove the relationship of the respondent No.1-Poonam with respondent No.6-Sumit, but it did not choose to do so. The appellant could not explain as to why it had sent Surveyor-Sachin Gulati to investigate the matter further after filing the claim before the Commissioner when investigation report dated 24.7.2010 had already been taken on record. The appellant further could not explain why respondent No.6 had made allegation of demanding of `20,000/- on the Investigator. The appellant could not explain when it had already taken the statement of Sumit- respondent No.6 as Ex.RW-3/6, then what was the need to take the statement of Sumit further again on 17.9.2010 vide Ex.R.2. The appellant could not rebut the statements of PW-1 Poonam and PW-2 Ravi Kumar (sic. - Ravi Parkash) by producing cogent and independent evidence. After appreciating the evidence and material produced on record the Tribunal came to the conclusion that from the statements of PW-1 and PW-2 and from the documentary evidence i.e. General Hospital receipt as Ex.P.1, Post-mortem report as Ex.P.2, death certificate as Ex.P.4 and DDR Ex.P.6, it is proved that deceased Siri Bhagwan was working as Driver on tractor No.HR-10N-8051 and he met with an accident on 21.2.2010 and died due to the injuries sustained in the accident while he was discharging his duties. The contention of the learned counsel for the appellant is that the appellant has not taken the premium for the paid driver and the risk of paid driver is F.A.O. No.1663 of 2011 (O&M) [7] not covered under the policy issued by it and as such the appellant was not liable to pay compensation. The said contention was opposed by the learned counsel for the respondents by producing the cover note of the policy on which it has been mentioned that the vehicle has been comprehensively insured. But, on the policy it has not very cleverly mentioned that the vehicle has been comprehensively insured. There is no evidence that the appellant has duly communicated the terms and conditions of the said policy to the respondent No.6. Even in the policy (Ex.RW-3/2) there is a driver’s clause, according to which any person including the insured is entitled to drive, if he holds an effective driving licence at the time of accident. But, from the cover note of the policy it is proved that the vehicle has been comprehensively insured. Once the policy was meant only for owner-driver and it was not for paid driver, then why such a clause for driver’s in the policy has been mentioned which authorizes any person to drive the vehicle. In National Insurance Company Ltd. v. D. Sivasankar and another, IV (2006) ACC 715, on which the learned Commissioner has placed reliance, the High Court of Andhra Pradesh has held that Policy is to per se cover liability towards employees like driver/conductor, etc. Such liability is mandatory and any basic policy would cover it and the insured was not under obligation to pay any extra premium to cover said liability. Therefore, the appellant has taken the premium for comprehensive policy and the insured was not under obligation to pay any additional premium for paid driver, rather, the policy covers the liability towards the paid driver also. Hence, there is no force in the contention of the learned counsel for the appellant that the deceased was not covered under the Policy. F.A.O. No.1663 of 2011 (O&M) [8] The deceased Siri Bhagwan at the time of accident was 40 years old and the learned Commissioner for quantifying the amount of compensation, took the wages of the deceased at the rate of minimum wages fixed by the State of Haryana for semi-skilled category, which were `4,344/- per month at the relevant time. The accident in this case had taken place on 21.2.2010. Under the circumstances, the Commissioner awarded compensation as mentioned above to the claimants/respondents No.1 to 5 in pursuance of its award/order dated 14.12.2010. I do not see any ground warranting interference in the impugned award so far as award of compensation to the claimants-respondents No.1 to 5 is concerned. However, the claimants will be entitled to interest at the rate of 9 per cent per annum and not 12 per cent per annum as awarded by the Commissioner. The impugned award is, accordingly, modified so far as award of interest is concerned. With the above modification in the impugned award, this appeal is hereby dismissed. September 2, 2011. (Mohinder Pal) Judge *hsp*