IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A. O. No. 583 of 2006 Sewa Samiti Haridwar through its Secretary …… Appellant. Versus New India Assurance Company and others …… Respondents. Sri Narendra Bali, learned counsel for the appellant. Sri T.A. Khan, learned counsel for the respondent/New India Ass. Co. None for other respondents. Dated: 16-12-2008 Hon’ble B.C. Kandpal, J. This appeal, U/S 30 of the Workmen’s Compensation Act, has been preferred against the judgment and award dated 1-3-2006, passed by Workmen’s Compensation Commissioner/ Assistant Labour Commissioner, Haridwar, in W.C.A. Case No. 1 of 2005, Smt. Kiran Dhyani Vs. Secretary, Sewa Samiti, Haridwar. 2- The brief facts of the case are that late Raj Kumar Dhyani, husband of the claimant Smt. Kiran Dhyani was employed as a Helper/Assistant on the Ambulance No. U.A. 08-B-9568 owned by appellant Sewa Samiti Haridwar. On 25.12.2004 the aforesaid vehicle at about 2.00 A.M. near village Brahampur P.S. Roorkee, met with accident as a wild-cow had come across the road and in order to save her the driver of the vehicle lost control over it. The deceased Raj Kumar Dhyani sustained grievous injuries in the accident he succumbed to the injuries in Jolly Grant Hospital during the course of his treatment. According to the claimants the 2 deceased at the time of accident was 39 years of age and he was getting Rs. 2,500/- per month. 3- The opposite parties contested the claim petition before the Workmen’s Compensation Commissioner. The owner of the vehicle has admitted the accident. Employment of the deceased Raj Kumar as a Helper with Sewa Samiti and his salary of Rs. 2500/- per month has also been admitted by the owner of the offending vehicle. Further plea was taken that the vehicle was being driving by a person possessing valid and effective driving license. The New India Assurance Company also admitted the insurance cover of the vehicle in question at the time of accident. 4- The learned Workmen’s Compensation Commissioner after perusing the evidence adduced by the parties and having heard learned counsel for the parties, awarded a sum of Rs. 2,33,625/- as compensation to the claimants against the opposite party/Sewa Samiti Haridwar and directed to deposit the said amount within a month, failing which interest @ 6% per annum shall be payable from the date of filing the claim petition till the date of actual payment. 5- Feeling aggrieved the Sewa Samiti through its Secretary, has preferred this appeal. 6- Heard learned counsel for the appellant as well as learned counsel for the respondent/insurance company and perused the record. 7- Learned counsel for the appellant has submitted that the learned Court below has wrongly imposed the liability of compensation upon the appellant 3 ignoring the important aspect that on the date of accident the vehicle in question was insured with the New India Assurance Company and as such insurance company should have been held liable to pay the compensation instead of the appellant/owner of the vehicle. 8- On the other hand, learned counsel for the respondent/insurance company has submitted that the deceased Raj Kumar, at the time of his death, was employed with the appellant in the capacity of Assistant Office Secretary and not as Ambulance Helper, and his death has occurred during the course of his employment, therefore, the learned Court below has rightly fixed the liability upon the employer. 9- Perusal of impugned award reveals that the learned Court below has framed issue No.7 on the point of liability of the parties. The court below has recorded a categorical finding that the deceased at the time of accident was working with the appellant in the capacity of Assistant Office Secretary and not as a Helper on the Ambulance, which met with accident. Salary Register of the Samiti was placed before the Court below. The learned Workmen’s Compensation Commissioner has found that in column No.2 of the salary register pertaining to deceased Raj Kumar Dhyani, for the month of May 2003, Office Secretary/Assistant Ambulance has been noted and after deep scrutiny of the register it was found that the Ambulance Assistant has been added lateron in the aforesaid column meant for deceased Raj Kumar Dhyani. The court below has opined that one person cannot work in the capacity of Assistant Office Secretary in the office and as Ambulance Assistant at one time, as the duty of Ambulance Assistant is dynamic. 4 Further, after the death of Raj Kumar there is no entry of Assistant Ambulance in the salary register. I find that the learned Workmen’s Compensation Commissioner has recorded a finding of fact on the point in issue and no substantial question of law is involved in this appeal. 10- The appeal lacks merit and is liable to be dismissed. 11- Accordingly, the appeal is dismissed. The impugned judgment and award is hereby confirmed. (B.C. Kandpal, J.) ISB 5