THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 465 of 2008 The New India Assurance Co. Ltd. …Appellant Versus Abdul Raheem and others ... Respondents With Appeal From Order No. 455 of 2008 Abdul Raheem and another …Appellants Versus Pushpraj Sonkar & another ... Respondents Sri T.A. Khan, Advocate for New India Assurance Co. Ltd. Sri Z.U. Siddiquie, Advocate for the claimants Sri B.D. Pande, Advocate for owner of vehicle (Pushpraj Sonkar) Dated: 23.07.2009 Hon’ble B.C. Kandpal, J. (Oral) Since both these appeals arise out of the same judgment and award and common question of fact of law is involved in them, as such, they are being decided by this common judgment and order. These appeals, under Section 30 of Workmen’s Compensation Act, 1923, have been preferred against the judgment and award dated 16.9.2008 passed by Workmen’s Compensation Commissioner, Kumaon Region, Haldwani (Nainital) in W.C.A. No. 8 of 2008, Abdul Rehman and others versus Pushpraj Sonkar and another. The claimants filed a claim petition before the Workmen’s Compensation Commissioner for grant of compensation of Rs.4,48,000/- in lieu of death of their son-Abdul Qayyum alleging therein that Abdul Qayyum was employed as cleaner in vehicle no. 2 U.A.04-C-0548 owned by opposite party no. 1- Pushpraj Sonkar. On 14.1.2008 when the deceased was going to Pithoragarh from Haldwani in the said vehicle, near village Makrau, Chamtola Patwari Circle, Tehsil Banaula, Almora, the said vehicle met with an accident due to sudden steering failure and it fell into a deep ditch, as a result of which Abdul Qayyum died at the spot. At the time of accident deceased was 20 years of age and his monthly income was Rs.4000/- per month plus Rs.50/- per day for diet. The owner as well as insurer of offending vehicle in question contested the claim petition by filing their written statements and denied their liability to pay the compensation. The owner of vehicle took the stand that his vehicle was comprehensively insured with New India Assurance Co. Ltd. on the date of accident, hence insurance company is liable to indemnify the compensation. On the other hand, insurance company denied the insurance of vehicle and alleged that it is essential on the part of owner to prove all the papers of vehicle and employment of deceased by adducing evidence. The claimants claimed an excessive and exaggerated amount of compensation. The Workmen’s Compensation Commissioner having considered the entire evidence available on record and hearing learned counsel for the parties recorded the finding that deceased-Abdul Qayyum was employed as cleaner in Truck No. U.A.04-C- 0548 on the date of accident and on 14.1.2008 he died in motor vehicle accident. The learned Commissioner has taken into account the income of 3 the deceased as Rs.2773/- per month on the basis of minimum wages. The Commissioner further taken into account the age of the deceased as 30 years in view of the post mortem report. The Commissioner vide judgment and award dated 16.9.2008 awarded a sum of Rs.2,88,364/- as compensation to the claimants in lieu of death of deceased-Abdul Qayyum in the accident. The Commissioner further directed the insurance company to pay the said amount of compensation to the claimants within one month and in case of failure, the claimants shall be entitled to get interest at the rate of 12% per annum from the date of judgment till the date of payment. Feeling aggrieved by the aforesaid impugned judgment and award, The New India Assurance Co. Ltd. has preferred A.O. No. 465/2008, while claimants have filed A.O. No. 455/2008 for enhancement of amount of compensation, before this Court. Heard Sri T.A. Khan, learned counsel for The New India Assurance Co. Ltd., Sri Z.U. Siddiquie, learned counsel for claimants, Sri B.D. Pande, learned counsel for owner of vehicle and perused the record. Sri T.A. Khan, learned counsel for the insurance company has submitted that deceased being cleaner on the offending vehicle in question was not covered by the insurance policy, therefore insurance company is not liable to pay the awarded amount of compensation. 4 The argument advanced by learned counsel for the insurance company is devoid of any force. The Hon’ble Apex Court in a case of National Insurance Co. Ltd. versus Prembai Patel and others, reported in 2005 (2) T.A.C. 289 (S.C.) has held as under: “12.The heading of Chapter XI of the Act is Insurance of Motor Vehicles against Third Party Risks and it contains Sections 145 to 164. Section 146 (1) of the Act provides that no person shall use, except as a passenger, or cause or allow any other person to use, a motor vehicle in a public place, unless there is in force in relation to the use of the vehicle by that person or that other person, as the case may be, a policy of insurance complying with the requirements of Chapter XI. Clause (b) of sub-section (1) of Section 147 provides that a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him in respect of death of or bodily injury to any person or passenger or damage to any property of a third party caused or arising out of the use of the vehicle in public place. Sub-clauses (i) and (ii) of Clause (b) are comprehensive in the sense that they cover both ‘any person’ or ‘passenger’. An employee of owner of the vehicle like a driver or a conductor may also come within the purview of the words ‘any person’ occurring in sub-clause (i). However, the proviso (i) to Clause (b) of sub- section (1) of Section 147 says that a policy shall not be required to cover liability in respect of death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen’s Act if the employee is such as described in sub-clauses (a) or (b) or (c). The effect of this proviso is that if an insurance policy covers the liability under the Workmen’s Act in respect of death of or bodily injury to any such employee as is described in sub-clauses (a) or (b) or (c) of proviso (i) to 5 Section 147 (1) (b), it will be a valid policy and would comply with the requirements of Chapter XI of the Act. Section 149 of the Act imposes a duty upon the Insurer (Insurance Company) to satisfy judgments and awards against persons insured in respect of third party risks. The expression-“such liability as is required to be covered by a policy under clause (b) of Section 147 (1), has to be satisfied by the Insurance Company. The effect of this provision is that an insurance policy, which covers only the liability arising under the Workmen’s Act in respect of death of or bodily injury to any such employee as described in sub-clauses (a) or (b) or (c) to proviso (i) to Section 147 (1) (b) of the Act is perfectly valid and permissible under the Act. Therefore, where any such policy has been taken by the owner of the vehicle, the liability of the Insurance Company will be confined to that arising under the Workmen’s Act.” The aforesaid decision of the Hon’ble Apex Court has made the picture very clear. Therefore, the argument advanced by learned counsel for the insurance company cannot be accepted. Sri Z.U. Siddiquie, learned counsel for the claimants has submitted that learned Workmen’s Compensation Commissioner has erred in holding the income of the deceased as Rs.2773/- per month, while it should be not less than Rs.4000/- per month; in awarding the conditional interest while it should be 12% per annum; in calculating the age of deceased 30 years while it comes 19 years as per School Leaving Certificate. Therefore, the amount of compensation awarded by the Commissioner is liable to be enhanced by this Court. As far as income of the deceased is concerned, the Workmen’s Compensation Commissioner has 6 assessed the income of the deceased at Rs.2773/- per month on the basis of minimum wages. Although the claimants stated in the claim petition that deceased used to get Rs.4000/- per month, but owner of vehicle admitted that he used to give Rs.3000/- per month as salary and Rs.50/- per day for diet to the deceased, at the time of accident. The claimants also did not adduce any cogent and reliable evidence with regard to actual income of the deceased. Therefore, I am of the view that the learned Commissioner in absence of any cogent evidence with regard to income of deceased has rightly assessed the income of the deceased at Rs.2773/- per month on the basis of minimum wages. As regards age of the deceased at the time of accident, the claimants stated in the claim petition that deceased was 19 years of age at the time of accident, but no cogent evidence has been adduced by the claimants in this regard. The post mortem report filed by claimants shows that deceased was 30 years of age at the time of his death. Thus, the age of the deceased as 30 years, which has been taken into account by the Commissioner, appears to be correct. As far as rate of interest is concerned, it appears from the impugned judgment and award that the Commissioner has awarded conditional interest at the rate of 12% per annum from the date of award till the date of payment. I think it is justified and does not require any interference. I do not find any infirmity in the findings recorded by the Tribunal while calculating the amount of compensation. In view of the above, both the appeals are liable to be dismissed. 7 Accordingly, appeals are dismissed. The impugned judgment and award dated 16.9.2008 is hereby confirmed. Let a copy of this judgment be placed in the file of A.O. No. 455 of 2008. (B.C. Kandpal, J.) SP