1 S.B. Civil Misc. Appeal No.250/2008 National Insurance Co. Ltd.. vs. Smt. Varju Bai & Ors. S.B. Civil Misc. Appeal No.250/2008 National Insurance Co. Ltd. vs. Smt. Varju Bai & Ors. Date : 10.9.2008 HON'BLE MR. PRAKASH TATIA, J. Mr.Jagdish Vyas, for the appellant. Mr.Kuldeep Purohit for Mr.Suresh Srimali for the respondents. - - - - - Heard learned counsel for the parties. This appeal has been preferred by the appellant insurance company aggrieved against the award dated 29.11.2007 passed by the Workmen's Compensation Commissioner, Udaipur in W.C. Case No.30/2005 (ALC). As per the claim of the respondents, Parta @ Partha Meena was an employee of the respondent Chandan Singh and was driving the truck no.RJ 09-G 1165 and on relevant date, while in employment of Chandan Singh, he met with an accident and died. The respondents sought compensation from the employer and for that purpose, submitted claim petition before the Workmen's Compensation Commissioner. Notices were issued to the 2 S.B. Civil Misc. Appeal No.250/2008 National Insurance Co. Ltd.. vs. Smt. Varju Bai & Ors. respondents. In response, respondent Chandan Singh, alleged employer, stated that deceased Parta was never engaged by him and, therefore, there is no relationship of the employer and employee between respondent Chandan Singh and deceased Parta. The insurance company also contested the claim, however, learned Commissioner vide impugned award allowed the claim petition and awarded Rs.4,19,840/- with interest at the rate of 12% per annum and imposed penalty of Rs.20,992/- and also awarded litigation costs of Rs.2500/- to the claimants. Learned counsel for the appellant insurance company vehemently submitted that the claimants failed to prove that the deceased was in employment of respondent no.4, the alleged employer. It is also submitted that the respondent no.4 not only denied this fact but in the reply stated that Ratan Lal Patel driver was engaged by him and Ratan Lal may have engaged Parta because of his sickness. Learned counsel for the appellant further submitted that the learned Commissioner committed error of fact as well as law by assessing the income of deceased at the rate of Rs.4500/-. It is submitted that the income has been assessed only on the basis of adverse inference drawn by the Tribunal against the 3 S.B. Civil Misc. Appeal No.250/2008 National Insurance Co. Ltd.. vs. Smt. Varju Bai & Ors. alleged employer and has been used against the appellant. It is submitted that it is the duty of the claimant to prove by evidence the income of the deceased which he has not done. In view of the above reasons, the learned Commissioner has committed serious error of law. Learned counsel for the appellant insurance company also submitted that even if the evidence of the respondent employer is considered, then it is clear that Parta could have been only a casual employee and risk of casual employee is not covered and insurance company is not liable to pay any compensation for any casual labour. Learned counsel for the respondents/claimants read over the statement of employer Chandan Singh in support of their contention that the respondent employer in fact admitted that the deceased Parta was in employment of the respondent employer and all evidence was with him which were suppressed by him about the salary of the deceased. Therefore, if adverse inference was drawn by the learned Commissioner, the learned Commissioner has not committed any error of law. I considered the submissions of learned counsel 4 S.B. Civil Misc. Appeal No.250/2008 National Insurance Co. Ltd.. vs. Smt. Varju Bai & Ors. for the parties and perused the record as well as the impugned order. Firstly, whether the deceased Parta was in the employment of respondent Chandan Singh is a pure question of fact which has been decided by the Commissioner against the appellant. However, learned counsel for the appellant pointed out that the Commissioner has not considered the evidence which is apparent from the decision given on issue no.1. It is true that the learned Commissioner has not referred the evidence in detail and merely stated that from the evidence oral as well as documentary, it is proved that the deceased was in employment from 8.3.2005 of the respondent Chandan Singh. I looked into the entire evidence and it is clear from the statement of respondent Chandan Singh that in cross examination, he admitted firstly that he saw the license of the deceased before the accident, therefore, the first thing is that he failed to explain that what was the reason and occasion for the respondent Chandan Singh to see the license of the person who died in the accident. Secondly, the respondent Chandan Singh specifically admitted that deceased Parta was working as driver on his vehicle since last 15-20 days. However, there is a 5 S.B. Civil Misc. Appeal No.250/2008 National Insurance Co. Ltd.. vs. Smt. Varju Bai & Ors. plea of the respondent Chandan Singh that Parta was not engaged by him and he was engaged by driver Ratan Lal who was sick and that plea cannot be believed because of the plain and simple reason that after admitting that Parta was driving his vehicle for 15 to 20 days, died in accident and before he died, his license was also looked into by the respondent Chandan Singh and thereafter, the respondent Chandan Singh did not produce Ratan Lal in evidence. Be it as it may, Parta was working since last 15-20 days, there is admission of employer himself and he was not employed by himself, there is no evidence except the statement of employer Chandan Singh. In view of the above reason, there is a reasonable reason to draw inference from the statement of Chandan Singh that in fact, the deceased was in employment of Chandan Singh for driving the vehicle in question. In cross examination, the owner/employer Chandan Singh of the vehicle in question clearly admitted that since Parta worked only for 15-20 days, therefore, he could not claim the wages which he could have claimed only after completion of the month. That also supports the contention of the claimants that Parta was in employment of Chandan Singh. In view of the above reason, the finding on issue no.1 given by the learned Commissioner is upheld. 6 S.B. Civil Misc. Appeal No.250/2008 National Insurance Co. Ltd.. vs. Smt. Varju Bai & Ors. So far as the claim of having salary of Rs.4500/- is concerned, for that, it was the oral statement of the claimants which was sufficient in the facts and circumstances of the case because of the reason that it was the duty of the employer to prove the salary of his driver after the statement of the claimants. In the claim case, the employer/owner is contesting party and, therefore, he is equally responsible to produce evidence at least to rebut the claimants' evidence. In a case where the evidence could not be produced by the claimants and the evidence has not been produced by the employer which was in the possession of employer, there is a legally known and established principle of drawing adverse inference. Adverse inference is certainly against the employer, may have consequence upon the insurer who insured the vehicle. In view of the above reason, the learned Commissioner has not committed any error in drawing adverse inference against the employer and the insurer is liable to suffer the consequence. Employer failed to prove that deceased was a casual labour. Otherwise also, the employer could have produced the evidence about the salary of his own driver. That 7 S.B. Civil Misc. Appeal No.250/2008 National Insurance Co. Ltd.. vs. Smt. Varju Bai & Ors. was also not produced by the owner to prove that Ratan Lal was in fact in employment of respondent/employer Chandan Singh. In view of the above reason, this appeal, having no merits, is hereby dismissed. (PRAKASH TATIA), J. S.Phophaliya