IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 455 of 2007 National Insurance Co. Ltd. … Appellant Versus Shankar Singh and others … Respondents Sri D.S. Patni, Advocate for appellant Sri Rakesh Thapliyal, Advocate for respondents 1 to 5 Dated: August 19, 2008 Hon’ble B.C. Kandpal, J. Both the parties have agreed that the matter be disposed of finally. This appeal, preferred u/s 30 of Workmen’s Compensation Act, 1923, is directed against the judgment and order dated 01.08.2007 passed by Workmen’s Compensation Commissioner, Tehri Garhwal, New Tehri, in Workmen Compensation Claim Case No. 13 of 2006, Shankar Singh & others versus Surendra Dutt Rayal & another, whereby claim of claimants was allowed for a sum of Rs.2,79,650/-. The claimants filed a claim petition u/s 4/10 of Workmen’s Compensation Act, before Workmen’s Compensation Commissioner for grant of compensation on account of death of deceased- Heera Singh alleging therein that their father-Heera Singh was employed as driver on Taxi Marshall No. U.A.07-C-9149, owned by opposite party no. 1- Surendra Dutt Rayal and on 6.10.2005 at about 11.30 a.m. the said vehicle met with an accident 2 due to its mechanical failure near Bhadu Ki Magri, old Tehri, Devprayag Tiraha, at Tehri-Ghansali Road, in which deceased-Heera Singh was grievously injured and he succumbed to those injuries on 11.10.2005 in Himalayan Institute, Jollygrant, Dehradun during his treatment. It has also been alleged that owner of vehicle used to give Rs.4200/- per month to the driver (deceased) and deceased was 47 years of age at the time of accident and accident had occurred during the course of employment. It has further been alleged that at the time of accident vehicle in question was insured with opposite party no. 2. The claimants claimed a sum of Rs.3,50,000/- as compensation against opposite parties. Opposite party no. 1-owner of vehicle has filed his written statement admitting the factum that deceased-Heera Singh was employed as driver on his Vehicle i.e. Marshall Max No. U.A.07-C-9149 and on 6.10.2005 the said vehicle met with an accident due to its mechanical failure near Bhadu Ki Magri, old Tehri, Devprayag Tiraha, at Tehri- Ghansali Road, in which deceased-Heera Singh was grievously injured and succumbed to those injuries on 11.10.2005 in Himalayan Institute, Jollygrant, Dehradun during his treatment. He has denied that deceased used to get a salary of Rs.4200/- per month and pleaded that he used to give Rs.3500/- per month to the deceased-workman. He has admitted that age of deceased was 47 years at the time of accident. He also admitted that accident occurred during the course of employment. It has further been pleaded that amount of compensation as claimed is excessive and exaggerated. In the 3 additional pleas, it has been pleaded that since offending vehicle was insured with National Insurance Company Ltd., therefore, the liability to pay the compensation is of insurance company and claim petition filed against opposite party no. 1 is liable to be dismissed. Opposite party no. 2-insurance company has filed written statement denying the contents of claim petition for want of knowledge. In the additional pleas, it has been pleaded that claim petition is not maintainable under the legal provisions. It has also been pleaded that petitioners 2 to 5 are minors and petition filed by them is liable to be dismissed. It has further been pleaded that on the date of accident registration, permit, fitness of vehicle in question and driving licence of driver were not valid and claim petition filed against opposite party no. 2 is liable to be dismissed. 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. 2,79,650/- against the opposite party no. 1-onwer of vehicle, vide judgment and award dated 01.08.2007. The Workmen’s Compensation Commissioner further directed that since vehicle in question was insured with opposite party no. 2- National Insurance Co. Ltd., therefore, opposite party no. 1 shall ensure that payment of compensation is made by opposite party no. 2- insurance company to the claimants. 4 Feeling aggrieved by the aforesaid judgment and award, the appellant-insurance company has preferred the present appeal, under Section 30 of Workmen’s Compensation Act, before this Court. Heard Sri D.S. Patni, learned counsel for the appellant, Sri Rakesh Thapliyal, learned counsel for respondents no. 1 to 5 and perused the record. Learned counsel for appellant has vehemently argued that the claim petition filed by respondent no. 1 on behalf of respondents no. 2 to 4 is not maintainable as per the provisions of Section 4(B) of Hindu Minority & Guardianship Act, 1956, in absence of orders by the competent court appointing respondent no. 1 the natural guardian. He has also submitted that learned Commissioner committed an error in holding that Sri Heera Singh died due to injuries sustained in accident, only on the basis of surmises and conjectures; and by calculating the income of deceased in absence of any documentary evidence on record. As far as factum of accident is concerned, opposite party no. 1-owner of vehicle in question has admitted this fact in his written statement that that on the date of accident i.e. 6.10.2005 deceased- Heera Singh was employed/working as driver on his Taxi Marshall Max No. U.A.07-C-9146 and said vehicle, on 6.10.2005, met with an accident near Bhadu Ki Magari at Devprayag Road, Tehri- Ghansali Motor Road, due to which driver sustained grievous injuries and succumbed to those injuries on 11.10.2005 during his treatment in Himalayan Hospital, Jollygrant. Opposite party no. 2 denied 5 this fact for want of knowledge and pleaded that burden to prove this fact lies on claimants. This fact has also been verified by F.I.R. lodged by claimants on 6.10.2005 at P.S. Kotwali, New Tehri. Opposite parties have not disputed this point. The learned Commissioner decided this issue in favour of claimants. I do not find any illegality in the finding recorded by the Commissioner in this regard and it deserves to be confirmed. As far as maintainability of claim petition filed by respondent no. 1 on behalf of respondents no. 2 to 5 is concerned, the insurance company has taken a specific plea in its written statement that claimants/respondents no. 2 to 5 are minors and claim petition filed on their behalf by claimant/respondent no. 1 is not maintainable. Learned counsel for claimants has submitted that the claimant no. 1-Shankar Singh is the elder brother of the minor claimants no. 2 to 5. Their mother has also expired and the claimant no. 1- Shankar Singh being the elder brother is looking after the minors and therefore he has the right to file claim petition on his behalf and on behalf of minor claimants no. 2 to 5. After having considered the submissions raised by learned counsel for the parties and going through the evidence on record, I do not find any force in the submission advanced by learned counsel for respondents. The learned Commissioner has framed issue no. 6 on the point of maintainability of the claim petition filed by claimant no. 1. The allegation of the opposite party no. 1 was that claimant no. 1-Shankar Singh has 6 not been appointed as Guardian of the minor claimants, therefore, he could not have filed the claim petition on behalf of the minor claimants. Admittedly, claimant no. 1-Shankar Singh is the elder brother of the minor claimants. He has attained majority and the minors are being looked after by him. The mother of the minors has already expired and there is none except claimant no. 1- Shankar Singh in the family to maintain and look after the minors. In the Hindu Adoption and Guardians Act, 1956, there is provision of de facto guardian and he has every right which is essential for the welfare of the minors. As stated above, the minors are in the de facto guardianship of the claimant no. 1, therefore, he has every right to file the claim petition on behalf of the minors for their welfare. The learned Commissioner has dealt with this point in detail and has rightly come to the conclusion that the claim petition is maintainable on behalf of minor claimants in the de facto guardianship of claimant no. 1-Shankar Singh. So far as quantum of compensation is concerned, the claimants have stated that their father was getting salary of Rs.4,200/- per month, but owner of vehicle in question has stated that he used to give him salary of Rs.3,500/- per month. The learned Commissioner has rightly taken the monthly salary of deceased at Rs.3,500/-. The age of the deceased according to the post mortem report as well as the averment made in the written statement and in the petition, was near about 47 years at the time of his death. The Commissioner has taken the age of the deceased as 48 years and the conclusion drawn by the Commissioner in this 7 respect is justified. The learned Commissioner on the above age and salary of deceased has adopted the relevant factor provided in Workmen’s Compensation Act and awarded a sum of Rs.2,79,650/- as compensation. I do not find any infirmity in the method adopted by the Commissioner while assessing the monthly income as well as calculating the total dependency of the claimants. I do not find any infirmity in the impugned judgment and award passed by Workmen Compensation Commissioner. There does not appear any ground to set aside the impugned 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 confirmed. (B. C. Kandpal, J.) SP 8