IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 874 of 2006 Smt. Indra Devi & another …Appellants Versus Smt. Amna & another …Respondents Sri N.S. Pundir, Advocate for appellants Sri Manish Dalakoti, Advocate holding brief of Sri D.S. Patni, Advocate for respondent no. 2 Dated: November 20, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 30 of Workmen’s Compensation Act, 1923, has been preferred against the judgment and order dated 15.11.2006 passed by Commissioner, Workmen Compensation, Tehri Garhwal, in W.C.C. No. 02/2006, Indra Devi & another Vs. Smt. Amna & another, whereby the Commissioner has dismissed the claim petition filed by the claimants. The claimants-Smt. Indra Devi and another filed a claim petition before the court of Commissioner, Workmen Compensation, Tehri Garhwal to this effect that husband of claimant no. 1-Late Sabbal Singh was employed as driver on Vehicle Jeep No. U.P.07C-5596 owned by Faiz Mohammad-husband of opposite party no. 1-Smt. Amna and on 17.10.2005 husband of claimant no. 1-Sabbal Singh died in an accident which took place at Kanogad bend. The claimants also alleged that at the time of accident deceased-Sabbal Singh 2 was the workman of husband of opposite party no. 1 and he used to earn Rs.4000/- per month to him. The said offending vehicle was insured with opposite party no. 2 w.e.f. 17.1.2005 to 16.1.2006. At the time of accident the age of deceased-Sabbal Singh was 37 years. The claimants claimed a sum of Rs.3,84,280/- as compensation against opposite parties. Opposite party no. 1-Smt. Amna wife of Late Faiz Mohammad neither appeared in the court nor filed any written statement through his counsel, consequently, an order was passed on 10.5.2006 to proceed exparte against her. Opposite party no. 2-National Insurance Co. Ltd. filed its written statement and denied that registered owner of Vehicle No. U.P.07-C-5596 and driver of said vehicle-Sabbal Singh died during the course of employment. It has also pleaded that claimants shown the excess salary of deceased in order to get more compensation without any plausible reason. The insurance company has admitted the factum of insurance of offending vehicle in paragraph-4 of its written statement. It has denied paragraph-6 of claim petition pleading therein that claimants claimed an exorbitant amount of compensation by showing age and salary of deceased wrongly. It has also denied paragraph-6 of claim petition and pleaded that it was not given any notice by the claimants under Section 10. In the additional pleas, it has been pleaded that at the time of accident driver was not having valid driving licence and insurance was got done for a fixed period on the basis of insurance contract. The 3 owner of vehicle was not having valid permit and fitness of vehicle in question, due to which there was breach of M.V. Act and under these circumstances insurance company is not liable to pay the compensation. The Workmen Compensation Commissioner on the basis of pleadings adduced by the parties framed following issues in the claim petition: 1. Whether husband of claimant no. 1- Late Sabbal Singh was employed as workman (driver) on 17.10.2005, on Jeep No. U.P.07-C-5596 of opposite party no. 1? 2. Whether on 17.10.2005 driver-Sabbal Singh died at the spot itself due to accident of the said Jeep at Kanigad bend of Chaundhar-Okhla road? 3. On the date of accident, what was the age and salary of deceased-workman (driver-Sabbal Singh)? 4. Whether at the time of accident all papers (permit, fitness, insurance etc.) of offending Jeep were valid? And whether at the time of accident driver was having valid driving licence? 5. Whether the claimants are entitled to get any type of compensation from opposite parties? If so, who is liable to pay the compensation? The learned Workmen Compensation Commissioner after having considered the entire material available on record and hearing learned 4 counsel for the parties, dismissed the claim petition filed by the claimants, vide judgment and order dated 15.11.2006. Feeling aggrieved by the aforesaid impugned judgment and order, the appellants-claimants have preferred the present appeal before this Court. Heard Sri N.S. Pundir, learned counsel for appellants-claimants, Sri Manish Dalakoti, Advocate holding brief of Sri D.S. Patni, learned counsel for respondent no. 2 and perused the record. Learned counsel for the appellants-claimants has submitted that deceased-Sabbal Singh, husband of claimant no. 1-Smt. Indra Devi, was appointed by Late Sri Faiz Mohd., husband of opposite party no. 1-Smt. Amna, and after death of Faiz Mohd., Sabbal Singh (deceased) continued in the employment, but learned Commissioner has committed manifest error in rejecting the contempt petition filed by the claimants. Learned counsel for appellants has thus urged that the claim petition is maintainable against Smt. Amna (wife of Faiz Mohd.) and compensation be awarded to the claimants in lieu of death of Sabbal Singh (deceased). I have gone through the impugned judgment and order thoroughly. Undisputedly, deceased- Sabbal Singh, husband of claimant no. 1-Smt. Indra Devi, was employed as driver by Faiz Mohd. on his Jeep No. U.P.-07-C-5596 and Faiz Mohd. has died on 4.5.2005 and Sabbal Singh has also died in 5 an accident after about five months of the death of Faiz Mohd., on 17.10.2005. The claimants have filed the claim petition against Smt. Amna, wife of Late Faiz Mohd. The claimants have not asserted that Smt. Amna after the death of her husband-Faiz Mohd. has continued the employment of Sabbal Singh and she used to pay salary to him. The claimants have completely failed to establish the employment of Late Sabbal Singh with Smt. Amna. No document showing payment of salary etc. by Smt. Amna to Sabbal Singh has been filed by the claimants. In the aforesaid circumstances, I am of the view that Late Sabbal Singh cannot be termed as ‘workman’ in the employment of Smt. Amna and the claim petition filed by the claimants against her cannot lie under the provisions of Workmen’s Compensation Act. I do not find any infirmity in the impugned judgment and order passed by the Workmen Compensation Commissioner rejecting the claim of the claimants filed against Smt. Amna. The Workmen Compensation Commissioner has recorded the finding of fact on the point of workman holding that deceased was not in the employment of respondent no. 1-Smt. Amna and the same is not liable to be interfered with in this appeal. I do not find any substantial question of law involved in this appeal and the same is liable to be dismissed. Accordingly, appeal is dismissed. The impugned judgment and order dated 15.11.2006, is hereby confirmed. (B.C. Kandpal, J.) SP 6