HIGH COURT OF UTTARANCHAL AT NAINITAL Appeal Against Award No. 378 of 2005 (Old No. 1019/1997) National Insurance Co. Ltd; 3 Middleton Street Calcutta through its Administrative Officer (Legal) D. Sarkar, Presently posted at Divisional office at 25 M.G. Marg, Allahabad ............. Appellant Versus 1. Smt. Batoolan W/o Rafiq Ahmad R/o Near Chirag Ali Baba Ki Mazar, Haldwani 2. Neseem Ahmad S/o Abdul Salaam 3. Abrar son of Anwar, both residents of Line No. 18, Azad Nagar, haldwani, District Nainital ...Respondents Dated: January 3, 2008 Hon’ble Rajesh Tandon, J. 1) Present appeal has been preferred against the judgment and award dated 31.8.2005 passed by the Commissioner, Workmen’s Compensation, Haldwani, Nainital. 2) Claimant respondent no. 1 filed a claim petition under Workmen Compensation Act, for the grant of compensation on account of the death of her husband late Rafiq Ahamad in an accident. According to the claimant her husband was helper on 2 the trucks of respondent no. 2 and 3. On 7.9.1997 his truck met with an accident and her husband sustained fatal injuries in the accident. Later on her husband succumbed to the injuries sustained on 18.2.1996. At the time of his death the deceased was 50 years of age. He was getting Rs.1500/- per month as salary. Information of the accident was given to the insurance company. 3) Respondent no. 2 and 3 filed their written statement and admitted the alleged accident. It was submitted that the deceased was their employee and was getting Rs.1500/- per month as salary. The truck was validly insured with the National Insurance Company. The driver had valid driving licence and the insurance company is liable to pay compensation if any, to the claimant. 4) The appellant insurance company filed its written statement and has submitted that the deceased was not employed in the truck as helper. The claimant was not dependent on the income of the deceased. 5) The claimant Smt. Batoolan examined herself on oath and has stated that her husband Rafiq was engaged as helper on truck No. USR 9747. The truck was owned by Sri Naseem and Abrar. The truck met with accident near Bail Baba Mandir, Rampur Road on 7.9.1995 and her husband sustained fatal injuries in the accident. Later on her husband died due to the injuries sustained on 18.2.1996. 6) Respondents No. 2 examined Khalid who was the driver of the truck met with accident. This witness has stated that his truck met with accident in order to save one cyclist. Rafiq and one Radheyshyam were labourers in the truck who sustained 3 fatal injuries in the accident. Radhey Shayam died at the spot while Rafiq died in the hospital. 7) On behalf of respondent no. 3 Naseem was examined, who has stated that he along with Abrar was owner of the truck No. USR 9747 which met with accident 7.9.1995. This witness had sent information regarding the accident to the insurance company on the next day. The deceased was getting Rs.1500/- per month as wages. 8) Appellant National Insurance Company has not adduced any evidence in defence. 9) The Workmen’s Compensation Commissioner after considering the evidence on record awarded a sum of Rs.1,14,817/- as compensation, after taking into consideration the wages payable to the deceased i.e. Rs.1500/- per month, along with interest at the rate of 12% per annum from the date of the death of deceased i.e. 18.2.1996. It has been held that the truck was insured with the appellant the National Insurance. and the insurance company was held liable to pay compensation to the claimant. 10) Counsel for the appellant has submitted that deceased Rafiq was not employed as helper in the truck. He placed reliance on a copy of F.I.R. on the record. According to the counsel although the F.I.R was lodged by the claimant Smt. Batoolan but she has no where stated that her husband was employed as helper in the truck but she stated in the F.I.R. as under: fuosnu bl izdkj gS fd vkt fnukad 7-9-95 dks yxHkx 2-00 cts nksigj jkeiqj jksM gY}kuh ls tk jgs Fks fd csyckck efUnj ds ikl jkeiqj jksM gY}kuh ij :nziqj dh vksj ls V~d ua0 ;w0,l0vkj0 9747 dks mldk M~kboj cMh rsth ls o ykijokgh ls pykrk gqvk vk;k rFkk rsth vkSj ykijokgh ls pykus ls V~d iyV x;k 4 ftlls esjs ifr Jh jQhd dks Hkh VDdj yxh tks xEHkhj :Ik ls ?kk;y gks x;s gSa ftudks ljdkjh vLirky esa HkrhZ djk;k x;k gSA 11) Counsel for the appellant has stated that the F.I.R. shows that the deceased was going on foot when the truck met with accident and dashed deceased Rafiq. 12) This paper has not been proved by any witness nor this paper has been filed and proved by the appellant insurance company. As stated above, Smt. Batoolan was examined as witness before the Tribunal but no suggestion has been given to her by the appellant regarding this F.I.R. nor this paper has been put to her to prove its validity. Sri Naseem who was the owner of the truck has examined himself on oath and has stated that deceased Rafiq was engaged as a helper in the truck by him and he was paying Rs.1500/- per month to him as wages. 13) The driver of the truck Sri Khalid was also examined on oath and he has stated that deceased Rafiq and one Radhey Shyam were labourers employed in the truck and they were died due to the injuries sustained in the accident. 14) Thus the appellant has utterly failed to prove that at the time of accident deceased Rafiq was not employed in the truck. The tribunal has calculated the amount of compensation after taking into consideration of Rs.1500/- as salary of the deceased and his age of 50 years at the time of accident which comes to (1500/2) x 153.09 =Rs.1,14,817.00. The Tribunal has also awarded interest @ 12% per annum i.e. Rs.21,814.00 from the date of death of the deceased. However, interest of 12% should be awarded from the date of accident i.e. 7.9.1997 as provided under section 4A (3) of the Workmen’s Compensation Act but amount of interest cannot be enhanced as no cross appeal has been filed by the claimant. 5 15) In view of above, we find no merit in the appeal. The appeal is hereby dismissed. 16) No order as to costs. (Rajesh Tandon, J.) January 3, 2008 *Dhyani