( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 290 OF 2010 WITH CIVIL APPLICATION NO. 12088 OF 2009 AND CIVIL APPLICATION NO. 4970 OF 2010 The United India Insurance Co. Ltd., .. Appellant 1st Floor, Chhatrapati Sankul, [Original Subhash Road, Dist. Beed. respondent Through its Authorized Signatory No.2] Divisional Manager, At Aurangabad. Versus 1. Smt. Meenabai w/o. Mahadeo Kharat .. Respondents Age. 29 years, Occ. Household, [Nos. 1 to 4 R/o. Shivaji Nagar, original Tal. & Dist. Beed. Applicants, No. 5 - 2. Ashwini d/o. Mahadeo Kharat original Age. 11 years, u/g. Mother, respondent Respondent No.1, No.1] R/o. Shivaji Nagar, Tal. & Dist. Beed. 3. Tejas s/o. Mahadeo Kharat, Age. 4 years, u/g. Mother, Respondent No.1, R/o. Shivaji Nagar, Tal. & Dist. Beed. 4. Smt. Gangubai wd/o. Tukaram Kharat, Age. 60 years, Occ. Household, R/o. Shivaji Nagar, Tal. & Dist. Beed. ( 2 ) 5. Feroz s/o. Aminoddin Inamdar Age. 35 years, Occ. Business, (Tempo Owner MH-06-5301) R/o. Tekarwan, Majalgaon, Dist. Beed. Shri V.R. Mundada, Advocate for the Appellant. Shri S.S. Chapalgaonkar, Advocate for respondent Nos. 1 to 4. Shri P.C. Mayure, Advocate for respondent No.5. CORAM : P.R. BORKAR,J. DATED : 11.06.2010 ORAL JUDGMENT :- 1. This appeal is filed by the Insurance Company challenging the judgment and award passed by the Commissioner for Workmen’s Compensation and Civil Judge, Senior Division, Beed, while deciding W.M.C. No. 31 of 2008 on 20.06.2009, whereby the present appellant and respondent No.5 were directed to pay Rs. 4,07,700/- as compensation. Respondent No.5 is also directed to pay 50% amount of compensation as penalty besides interest. The appellant is original respondent No.2 and this appeal is restricted only to the ( 3 ) original amount of compensation of Rs. 4,04,700/- and is not directed against penalty and interest which the owner/respondent No.5 was directed to pay. 2. In this case three points were urged for admission of this appeal. Firstly, it is argued that there is breach of policy in as much as deceased Mahadeo was not a Cleaner but a passenger travelling in the tempo. Secondly, it is stated that relationship of the employer and the employee between deceased Mahadeo and respondent No.5 is denied. Lastly, it is stated that assuming that Mahadeo was a Cleaner, the quantum was excessive in as much as there was no evidence to show that the deceased was getting salary of Rs. 2500/- per month. It is also stated that Bhatta of Rs.50/- per day which the deceased was getting was also included. 3. Brief facts giving rise to this appeal are as follows:- . Tempo No. MH-06-5301 is owned by present respondent No.5 – Feroz Inamdar. On 13.06.2008 the tempo was being driven by one Sachin Pattekar. On that day when the tempo was near Sukapuri Phata, a truck came from opposite side. ( 4 ) The driver could not control the tempo while giving side to the truck and the tempo fell on its side. Mahadeo Tukaram Kharat – husband of respondent No.1, father respondent Nos. 2 & 3 and son of respondent No.4 died on the spot. The tempo fell on its side and Mahadeo came under it. Respondent No.1 to 4, who were dependent upon Mahadeo, made application for compensation under Workmen Compensation Act. 4. Both respondent No.5 – the owner of tempo and present appellant - Insurance Company filed their written statements. Respondent No.5 by filing his written statement at Exh.15 admitted that deceased Mahadeo was working as a Cleaner on the tempo and that he died as a result of the accident. However, it is said that since the tempo was insured and the insurance was valid at the time of the accident, appellant Insurance Company is liable to pay the compensation. The appellant – Insurance Company filed written statement at Exh. 13 and denied that the deceased was working as a Cleaner on the tempo. It is said that he was passenger in his tempo and falsely he is shown to be a Cleaner to avoid responsibility of the owner. The salary of the deceased is also challenged. The appellant said that the ( 5 ) claim is excessive, exorbitant and the Insurance Company is not liable to pay the compensation as there was breach of the policy in as much as the deceased was travelling as a passenger in goods vehicle and his risk was not covered by the insurance policy. The learned advocate for the appellant relied upon case of Asha Rani & Ors. V/s. Uttaranchal S.R.T.C., in support of the ratio that the the passengers in goods vehicle could not be covered by the policy. 5. As per Section 30 of the Workmen’s Compensation Act, the appeal is tenable only where there is substantial question of law in the appeal. As per Order passed by this Court on 22.02.2010, the appeal is being heard and decided at the stage of admission. The substantial question of law that is raised before this Court is as under :- “Whether deceased Mahadeo was a Cleaner on the tempo and whether his risk is covered by the Insurance Policy?” 6. Heard Adv. Shri V.R. Mundada for the appellant, Adv. Shri S.S. Chapalgaonkar for respondent Nos. 1 to 4 and ( 6 ) Adv. Shri P.C. Mayure for respondent No.5. Both the advocates for the respondents supported the judgment of the Trial Court and prayed that so far as the compensation is concerned, it is proved that deceased Mahadeo was a Cleaner and his risk was covered by the Insurance Policy. The learned advocate Shri V.R. Mundada stated that the story regarding deceased Mahadeo being a Cleaner is afterthought and it is just to avoid responsibility by the owner. He also said that the Insurance Policy does not cover the risk. 7. Besides admission of respondent No.5 – tempo owner regarding deceased Mahadeo being a Cleaner on the tempo at the time of the accident, we find evidence of respondent No.1 – Meenabai – widow of Mahadeo at Exh.20. She stated in para 1,3 and 5 that the deceased was working as a Cleaner on the tempo when the accident had occurred. In cross-examination on behalf of respondent No.5, respondent No.1 stated that her husband was working as a Cleaner on the tempo and his pay was Rs. 2500/- and daily he was getting Rs. 50/- as daily Bhatta. In cross-examination by the appellant’s advocate, she stated that for six months prior to the accident her husband was working on the tempo. She admitted that persons in the tempo ( 7 ) were proceeding for Kanduri ceremony from Takarwan to Khanapardi. It is true that respondent No.1 could not tell name of the tempo-owner. She also could not tell if he was permanent driver. She admits that Sachin Pattekar was driving the tempo at the time of the accident. 8. In support of evidence of Meenabai, there is also copy of F.I.R. lodged by Dadarao Kale. He do say that the trolley fell on Cleaner’s side and Mahadeo Kahrat and Sadhu Babu died in the accident. But it is not stated that Mahadeo was a Cleaner. There are also spot panchanama, inquest panchanama and post-mortem notes. 9. At Exh.31 there is statement of Sachin Pattekar, who was driver of the tempo at the relevant time. He stated that ordinarily tempo-owner was driving tempo, but on that day, he was driving the tempo and Mahadeo was cleaner. He further stated that Mahadeo was earning Rs. 2500/- as monthly salary and Rs. 50/- per day Bhatta. He denied that Mahadeo was not working as a Cleaner on the tempo at the relevant time. ( 8 ) 10. At Exh. 35 there is also evidence of Feroz Inamdar, who is tempo-owner. He also said that Mahadeo was working with him as a Cleaner and there was relationship of employer and employee. He also said that he was giving Rs. 3000/- per month as salary and Rs. 50/- per day as Bhatta. There is no admission or favourable circumstance brought in the cross- examination. There is consistent case that deceased Mahadeo was a Cleaner. Along with police papers, the copy of statement of respondent No.5 recorded by the Police on 23.06.2008 is also produced. It is given Exh.28 and therein also respondent No.5 has admitted that Mahadeo was his Cleaner. So, that admission was about 13 days after the accident. Even in the charge-sheet, copy of which is produced at Exh.27, the police described Mahadeo as the Cleaner on the tempo. 11. So, looking to above said evidence, it can be said that the Commissioner did not commit any error in holding that there was relationship of employer and employee between respondent No.5 and deceased Mahadeo and deceased Mahadeo was working as a Cleaner on the tempo. ( 9 ) 12. Original copy of the policy is produced on record. It is argued before me that the driver and the cleaner are not covered, but six persons who were to work as Hamal, their risk is covered. If we consider Section 147 of the Motor Vehicles Act proviso, it is clear that liability arising under Workmen’s Compensation Act, 1923, in respect of death or bodily injury to such employee, if it is goods carriage, being carried in the vehicle is covered. Thus, both Cleaner and Driver are required to be covered by the Motor Vehicles Act. The Trial Court has taken view that even assuming for a moment that Cleaner as such is not included, he would be covered by the policy as an employee which covered risk of six employees. Perusal of original certificate of insurance makes it clear that legal liability under Workmen’s Compensation in respect of six employees in goods carrying vehicle is covered. 13. In the facts and circumstances, in my opinion no error is committed by the Commissioner for the Workmens’s Compensation in passing the award of compensation. In the result the appeal is dismissed. ( 10 ) 14. In view of dismissal of the First Appeal, Civil Application Nos. 12088 of 2009 and 4970 of 2010 do not survive and they are disposed of as such. [P.R. BORKAR,J.] snk/2010/JUN10/fa290.10