{1} fa111811.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.1118 OF 2011 ICICI Lombard General Insurance Company Ltd, through its Branch Manager, Zenith House, Keshar Khadye Marg, Mahalaxmi, Mumbai-400034. Appellant Versus 1 Irrappa s/o Satwa Sonkamble, age: 59 years, Occ: Labour, R/o Devengra, Tq. Chakur, District Latur. 2 Shevantabai w/o Irrappa Sonkamble, aged: 54 years, Occ: Household, R/o Devengra, Tq.Chakur, District Latur. 3 Shirikishan s/o Irrappa Sonkamble, aged: 19 years, Occ: Education, R/o Devengra, Tq. Chakur, District Latur. Respondents 4 M/s Unity Infra Project Ltd Dismissed against R.No.4 vide Court's order dt. 24.04.2009. Mr. S.S.Patil, advocate for appellant. Mr. A.V.Patil, advocate holding for Mr.V.D.Gunale, advocate for respondents no.1 to 3. Dismissed against Respondent No.4 vide Court's order dated 24.04.2009. {2} fa111811.odt CORAM : R.M.BORDE, J. DATE : 22nd June, 2011 PER COURT: 1 This is an appeal by the Insurance Company raising exception to the judgment and award passed by the Commissioner for Workmen's Compensation & Judge, Labour Court, Latur on 13.09.2007 in W.C.A. No.68/2004. 2 Respondents no.1 to 3 - original claimants tendered application claiming compensation under Section 22 of the Workmen's Compensation Act on account of death of deceased Ramchandra in an accident during the course of employment. Deceased Ramchandra was son of Respondents No.1 & 2 - original claimants no.1 & 2 and brother of Respondent No.3 - original claimant no.3. The claimants were dependent upon the income of deceased. Original Respondent No.1 - Respondent No.4 herein is the owner of Tipper bearing Registration No.MH-04-BU-937. Respondent No.2 - appellant herein is the Insurance Company with whom the vehicle was insured. Deceased Ramchandra was in employment with original respondent no.1 as a driver and employed to drive the vehicle since November 2002. He was getting monthly salary of Rs.6000/- and bhatta amount of Rs.50/- per day from Respondent No.1. It is stated that on 23.03.2004, while deceased Ramchandra was driving the tipper, at about 7.00 p.m., one truck came from front side and gave dash to the vehicle driven {3} fa111811.odt by Ramchandra, due to which driver of tipper - Ramchandra died on the spot. As Respondent No.1, being the employer and Respondent No.4, being the Insurance Company, responsible to pay compensation on account of death of deceased during the course of employment, a legal notice was issued to them calling upon them to pay compensation. However, as they failed to pay compensation, the claimants were constrained to file petition claiming compensation of Rs.8,50,000/- along with interest @ 18% p.a. 3 Respondent No.1 presented written statement wherein it is admitted that deceased Ramchandra was employee of M/s Unity Infra Project Ltd. It is also admitted that he died during the course of employment. Deceased was having a valid driving licence to drive heavy goods vehicle. The employer, however, denied deceased was getting salary of Rs.6000/- per month and bhatta of Rs.50/- per day. It is contended that deceased was getting Rs. 3500/- per month and lump sum amount of Rs.500/- per month was paid to deceased towards bhatta. It is stated that the vehicle was insured with Respondent No.2- Insurance Company and risk of driver is covered under the insurance policy and as such the Insurance Company is liable to pay compensation. 4 Respondent No.2 – Insurance Company filed written statement and denied the contentions raised in the claim petition. {4} fa111811.odt According to the Insurance Company, it is required to be proved by the claimants that deceased was employed by Respondent No.1 and he died during the course of employment and that he was getting monthly salary of Rs.6000/- and bhatta of Rs.50/- per day. The Insurance Company – appellant herein, therefore, prayed for dismissal of Claim Petition. 5 The trial Court, after considering evidence led by the parties, came to the conclusion that the claimants have substantiated their case and as such by impugned judgment and award, directed Respondent No.1 and Respondent No.2 to pay jointly and severally an amount of Rs.4,30,560/- towards compensation to the claimants. Respondent No.1 – employer was also held liable to pay interest @ 12% p.a. on the amount of compensation from the date of accident. 6 Being dissatisfied with the award passed by the trial Court, appellant – Insurance Company has approached this Court. 7 I have perused the judgment and award passed by Commissioner for Workmen’s Compensation & Judge, Labour Court, Latur and heard arguments advanced by learned Counsel for respective parties. 8 It is vehemently contended by Shri Patil, Counsel {5} fa111811.odt appearing for appellant – Insurance Company that risk of driver is not covered under the insurance policy and as such the insurer is not liable to pay compensation. 9 On consideration of record, it transpires that an additional premium of Rs.25/- covering liability of driver was paid by the owner of the vehicle. The policy document also makes it clear that in consideration of additional premium of Rs.25/-, notwithstanding anything to the contrary contained in the policy, it is clearly understood and agreed that the insurer shall indemnify the insured against insured’s liability under the Workmen’s Compensation Act or at common law and subsequent amendments of these Acts prior to the date of his endorsement in respect of person’s injury to any paid driver and/or conductor and/or cleaner while in employment of the insured in connection with the vehicle insured and will in addition be responsible for all costs and expenses incurred. Thus, risk of the driver is covered under the insurance policy as additional premium, in that regard, has been paid by the owner of the vehicle. So far as quantum of compensation is concerned, same has been correctly arrived at by the Commissioner. No other substantial question of law arises for in the present appeal. 10 It is informed that appellant – Insurance Company has deposited total amount covered under the award in this Court and {6} fa111811.odt the claimants were held entitled to withdraw amount to the extent of 50%. The balance of amount, deposited by the Insurance Company, shall be permitted to be withdrawn by the original claimants along with interest accrued thereon. 11 Appeal stands dismissed. In view of dismissal of appeal, pending Civil Application stands disposed of. R.M.BORDE JUDGE ******* adb/fa111811