1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL MISC. APPEAL NO.456/2007. National Insurance Company Limited. VERSUS Smt.Safedi & Others. 10.04.2008. HON'BLE MR.JUSTICE DALIP SINGH Mr.J.K.Singhi, for the appellant. Mr.N.K.Singhal, for the respondent No.7. ***** This is an appeal by the Insurance Company against the award passed by the learned Workman Compensation Commissioner dated 27.10.2006 under the Workmen Compensation Act, 1923. The main submission of the learned counsel for the appellant in the appeal is that the Insurance Company was not liable as the vehicle was being driven for hire and reward at the time of accident and there was a breach of policy conditions. So far as the above contention of the learned counsel for the appellant is concerned, issue No.7 has been framed in this behalf by the learned Commissioner. Needless to say that the burden of proof was required to be discharged by the appellant Insurance Company regarding the breach of the policy conditions and plying of the vehicle for hire and reward by the deceased at the time of the accident. The appellant was required to discharge the aforesaid burden and the sole witness produced by the appellant-Insurance 2 Company is DW-1 Kanhaiyalal. The learned Commissioner while deciding the issue No.7 has noted that DW-1 Kanhaiyalal who was the witness of the appellant Insurance Company has clearly stated that he was not a witness to the accident nor was he present on the spot nor did he carry out any investigation in respect of the said accident. Relying upon the statements of DW-1 Kanhaiyalal further wherein the said witness of the appellant had deposed and has admitted that he has not collected any evidence nor any document which could suggest that the vehicle was being driven for hire and reward contrary to the policy conditions, the learned Commissioner, therefore, came to the conclusion that the appellant Insurance Company failed to discharge the burden to prove that the vehicle was being driven for hire and reward contrary to the policy conditions and has, therefore, decided the issue No.7 against the appellant. It is not in dispute that apart from the evidence of DW-1 Kanhaiyalal, no other witness was examined in this behalf by the appellant. Learned counsel for the appellant was unable to show that the findings which have been recorded by the learned Commissioner based upon the statement of DW-1 Kanhaiyalal were in any way incorrect. In that view of the matter I find no infirmity in the findings recorded on the issue No.7 and the same call for no interference. Learned counsel for the appellant has further submitted that the learned Commissioner has committed an error in deciding the issue No.4 against the appellant pertaining to the 3 income of the deceased. I have considered the above submissions. In the instant case the claimants' evidence is that the deceased was paid Rs.3,000/- per month as salary and an additional allowance of Rs.60/- per day. The learned Commissioner has noted that apart from the aforesaid evidence of the claimants AW-1 Smt.Safedi and AW-2 Pooran Singh, the Insurance Company-appellant herein did not lead any evidence to counter the aforesaid evidence led by the claimants. There being no evidence in rebuttal from the side of the appellant, it cannot be said in the facts and circumstances that the learned Commissioner has committed an error in arriving at a finding contrary to the material available on record. Accordingly, I find no merit in the above contention raised by learned counsel for the appellant. Consequently, the same is dismissed. Learned counsel for the appellant further contended that the learned Commissioner has committed an error in not taking into consideration the age of the claimants No.1 and 2 who are the parents of the deceased and only relied upon the age of the deceased as 20 years for determining the compensation. The learned Commissioner has taken into consideration the fact that the deceased was the sole bread earner of the family and the dependents included not only the applicants- claimants No.1 and 2, mother and father of the deceased, but also the claimants No.3 to 6 who 4 are his minor brothers and sisters aged 15 to 4 years who were dependent upon the deceased. In that view of the matter there is no infirmity in the award of compensation by the learned Commissioner taking into consideration the age of the deceased who died at the age of 20 years, as per the findings on issue No.3 after taking into consideration the evidence by way of the driving license (Exhibit-12) and Post Mortem Report (Exhibit-4) and holding that the deceased was aged 20 years at the time of accident and determining the compensation to be awarded on that basis. In view of the above, no substantial question of law arises in this appeal. This appeal is consequently dismissed summarily. (DALIP SINGH),J. Solanki DS, Jr.P.A.