IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (WCA) Nos. 408 and 409 of 2005. Decided on September 17, 2010 1. FAO (WCA) 408 of 2005 Oriental Insurance Co. …Appellant. Versus Santosh Devi & another …Respondents. 2. FAO (WCA) 409 of 2005. Santosh Devi …Appellant. Versus Oriental Insurance Co. & another. Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. FAO (WCA) 408 of 2005. For the appellants Sh. G.C.Gupta, Sr. Advocate, with Mr. K.L.Bali, Advocate. For the Respondents: Sh. K.D.Sood, Advocate, with Mr. Mukul Sood, Advocate. FAO (WCA 409 of 2005. For the appellant Sh. K.D.Sood, Advocate, with Mr. Mukul Sood, Advocate. For the respondents Mr. G.C.Gupta, Sr. Advocate, with Mr. K.L.Bali, Advocate. Surjit Singh, Judge (Oral) These appeals are being disposed of by a common judgment, because both of them arise out of the same case before the Commissioner, under Whether reporters of the local papers may be allowed to see the judgment? - 2 - Workmen’s Compensation Act, 1923 (hereinafter referred to as the Act) and the order assailed therein is also the same, that is Order, dated 25.4.2005 of the said Commissioner. 2. Petition under Section 22 of the Act was filed by Santosh Devi, appellant in FAO (WCA) 409 of 2005 (hereinafter referred to as the claimant), for award of compensation, for the death of her son, who according to her, was employed as driver of Tractor No. HP-20-A/2872, owned by her husband, respondent Avtar Singh. It was stated that claimant’s son, Vipan Kumar, died in the course of his employment as a driver of the aforesaid tractor. Avtar Singh, who was impleaded as respondent, admitted that he had employed the deceased, his son, as driver on his tractor and that he died in the course of employment. 3. Insurance Company, with which the tractor was insured, was also impleaded as respondent. It contested the petition and pleaded that the deceased was not employed as driver and that he had taken the tractor for repairs on the relevant date, as representative of the owner, being his son. It was stated that deceased did not possess a valid and effective driving licence. - 3 - 4. The Commissioner under the Act, passed the order on 25.4.2005, holding that the deceased was a workman, having been employed as driver, by respondent Avtar Singh, on monthly salary of Rs.2,500/-and his death, having taken place in the course of employment, claimant was entitled for compensation to the tune of Rs.2,73,093/-. The aforesaid amount of money was awarded with interest @ 12% per annum. It was also ordered that in case the compensation money was not paid within 30 days, penal interest @ 15% shall also be payable on the compensation money. 5. One appeal, that is FAO (WCA) No. 409 of 2005, has been filed by the claimant, seeking enhancement of compensation. Second appeal, that is FAO (WCA) 408 of 2005, has been filed by the Insurance Company, challenging the order on the ground that the deceased was not a workman, as he had not been employed by his father Avtar Singh to drive the tractor and that deceased also did not possess driving licence. 6. Appeal of the Insurance Company was admitted on the following substantial questions of law: - 4 - a) Whether the Workmen Compensation Commissioner below is justified in allowing penal interest to the claimants? b) Whether the Workmen Compensation Commissioner is justified in granting compensation to the claimant in view of the fact that the deceased was not holding the driving licence for driving the Tractor? c) Whether on the evidence led by the claimant, respondent No. 2 it could be concluded that the deceased was an employee/workman and died during the course of employment? 7. Appeal, filed by Santosh Devi, was admitted on the substantial questions mentioned below: “Whether in view of the monthly wages of the deceased at Rs.3500/- p.m. the compensation awarded by taking the 50% wages at Rs.1215/- p.m. was justified and award of compensation of Rs.2,70,593/- is legal and valid when in the facts and circumstances of the case, the wages had to be taken as Rs.1750/- and compensation of Rs.2,70,593/- awarded alongwith interest at the rate of 12% p.a.?” 8. Learned counsel for the Insurance Company has confined his submissions only to one of the three substantial questions of law, viz. whether the deceased was a workman, within the meaning of the Act? - 5 - According to him, deceased was the son of Avtar Singh and, therefore, mere testimony of Avtar Singh, or the mother of the deceased, who is wife of Avtar Singh, cannot be treated as evidence to prove the status of the deceased as workman, as both of them are interested in proof of this fact, because they would get compensation. According to him, normally, a person does not employ his own son to drive tractor, especially when the tractor is used for agricultural pursuits alone and, therefore, burden lay heavy upon the claimant, as also insured Avtar Singh, to prove that deceased had been employed as driver. 9. On the other hand, it has been argued on behalf of Santosh Devi, that no presumption can be drawn from the fact of relationship as father and son, between the owner of the tractor and the deceased, that the deceased was not a workman and that there is no bar to the employment of a son by his father, as driver of tractor. 10. Deceased, as per averments in para 5 of the petition, is stated to be over 15 years of age. In the very next sentence, it is stated that he was 20 years of age. Petition is drafted by a lawyer. Averment in the petition that he was over 15 years of age, by itself, suggests that the deceased was a minor, - 6 - around the age of 15 years. No doubt, parents of the deceased, that is Avtar Singh, insured and Santosh Devi, claimant, testified that he was more than 20 years of age, but they did not adduce any documentary evidence in support of the age of the deceased and, therefore, on the basis of their testimony, admission made in the petition that he was over 15 years of age, cannot be said to have been disproved. 11. Avtar Singh, while in the witness box, stated that he owns 200 Kanals of land. The area, when converted into metric system of units, comes to around 18 acres, which is not a small holding. Farmers, even with a holding upto 5 and 6 acres, normally have tractors. The fact that Avtar Singh was having about 18 acres of land, suggests that tractor was meant for use, for his own agricultural land and, therefore, there was hardly any need for employment of a driver. Insurance Policy also indicates that use of tractor for hire or reward, or carriage of passengers, was excluded, meaning thereby that it could not have been used for commercial purpose and hence, there was no need for employing a driver. It is a matter of common knowledge that normally young persons, in a farmer’s household, do the job of ploughing land and carrying agricultural produce by means of tractor and - 7 - trailer. Nothing is paid to the family members for performing this kind of job. 12. It has been held by the Hon’ble Supreme Court in Gottumukkala Appala Narsimha Raju and others v. National Insurance Co. Ltd. And another, 2007 ACJ 1025, that employment of a husband by his wife as driver of a tractor is not a normal thing, and strong evidence, other than the mere testimony of the owner of the tractor, is required to prove the fact. 13. Learned counsel, representing the claimant, submits that onus of proving that the deceased was not employed as a driver, was placed upon the Insurance Company and that it (the Insurance Company), having led no evidence, finding returned by the Commissioner under the Act, cannot be set aside. Submission has been noticed only to be rejected. When after framing issues, parties go to trial and evidence is adduced, placing of onus of proof on a party, becomes immaterial and irrelevant. It is on the basis of the evidence adduced that the issue is required to be adjudicated. In the present case, testimony of father and mother of the deceased, in the absence of any other evidence, cannot be said to be evidence to prove that the deceased was a workman. - 8 - 14. In view of the above stated position, it is held that the deceased was not a workman. Substantial question of law, pertaining to this aspect of the matter, is decided accordingly. Consequently, appeal filed by the Insurance Company, that is FAO (WCA) 408 of 2005, is allowed, the impugned award is set aside and the petition filed by the claimant before the Commissioner under the Act is dismissed. Appeal, FAO (WCA) 409 of 2005, filed by the claimant, is dismissed. September 17, 2010 (PC). (Surjit Singh) Judge.