IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. A.O. NO. 362 of 2005 The Oriental Insurance Co. Ltd. … Appellant. Vs. Smt. Jayanti Devi and another .. Respondents. Mr.M.K. Goel, Advocate for the appellant. Mr. Siddharth Sah, Advocate for the respondent No.2. Mr. M.S. Bisht holding brief for Mr. L.K. Verma, Advocate for the respondent No.1. Dated: 09-04-2008 Hon’ble B.C. Kandpal, J. This appeal under Section 30 of the Workmen’s Compensation Act, 1923, has been preferred against the judgment and award dated 21.6.2005, passed by Workmen’s Compensation Commissioner and Assistant Labour Commissioner, Haldwani (hereinafter referred as the ‘Commissioner’), in WCC No. 3 of 2005. 2- According to the claim petition filed by the claimant, deceased Jeewan Singh son of the claimant was employed a driver on the bus owned by respondent No.2, Ramesh Anand and on the date of accident he was plying the bus D.L.P.B. 7012 from Delhi to Nainital. The bus met with accident on 16.1.2004 at about 11 A.M. near Matela Gaon and Jeewan Singh has died. The deceased was earning Rs. 4,000/- per month. Therefore, petition was filed in lieu of death of Jeewan Singh. 3- The Opposite Party Owner of the Bus admitted the accident and alleged that the death of Jeewan Singh had occurred during the course of his employment. He also alleged that monthly salary of the deceased was Rs. 4,000/- and the Bus was insured with Oriental Insurance Company and the liability is upon the insurer of the vehicle. 4- The Oriental Insurance Company also filed written statement and denied the claim. The insurer also alleged that the deceased was not in the employment of the respondent No.1. 5- Parties led evidence in support of their claim. The Commissioner allowed the claim petition for a sum of Rs. 3,15,402/- + Rs. 10,510/- as interest for the period 16.12.2004 to 16.5.2005 @ 8% per annum, total amount of Rs. 3,52,912/- and directed the Oriental Insurance Company to deposit the entire amount within a month, failing which, recovery proceedings were to be adopted. 6- Feeling aggrieved, the Oriental Insurance Company has preferred this appeal before this Court. 7- I have heard the learned counsel for the parties and perused the record. 8- Learned counsel for the appellant, Sri M.K. Goel, has confined his argument in this appeal that the driver of the Bus was not having valid driving license on the date of the accident. He has invited my attention towards the driving license of the driver Jeewan Singh produced by the claimant, which is available in the record of court below and it indicates that the driver Jeewan Singh was holder of the driving license throughout India to ply the heavy motor vehicle, heavy transport vehicle and heavy passenger vehicle, except hill routes vehicle. The aforesaid license in which the driver was debarred from driving the aforesaid category of vehicles on hill routes was effective from 20-5-2004 to 19-5-2007. Learned counsel for the appellant has therefore argued that the driver was not qualified to drive the vehicle on hill routes on the basis of the aforesaid driving license and hence the liability to pay the amount of compensation awarded by the Commissioner is not with the insurer of the vehicle. 9- Learned counsel for the respondent No.2, owner of the vehicle, Sri Siddharth Sah, has submitted that in view of the decision of the Hon’ble Apex Court in the case of National Insurance Co. Ltd Vs. Swarn Singh and others, reported in (2004) 3 S.C.C. 297, it was the duty of the insurance company to establish that the driver was not qualified to drive the vehicle on hill routes and in absence of any disqualification shown by the insurance company the insurer of the vehicle cannot be absolved from the liability to pay the amount of compensation. 10- Having considered the arguments advanced by the learned counsel for the appellant as well as the owner of the vehicle, I am of the view that the driving license filed by the claimant in this case itself indicates that the driver was not permitted to drive that type of vehicles, i.e. heavy motor vehicle, heavy transport vehicle and heavy passenger vehicle, on hill routes, therefore, it is quite clear that the driver in the instant case was not qualified to drive the vehicle on hill routes. 10- As the accident in the instant case has taken place in hill routes, therefore, I am of the view that the Commissioner has wrongly fixed the liability to pay the amount of compensation on insurance company. This fact was very-well in the knowledge of the owner of the vehicle that the driver was not permitted to drive the vehicle on hill routes. A natural presumption can be drawn that when the owner of the vehicle offered the employment to its driver, then he must have seen the driving license of the driver and this fact was very-well in the knowledge of the owner of the vehicle that the driver was not permitted to drive the vehicle on hill routes. 11- Under the aforesaid circumstances I come to the conclusion that the liability to pay the amount of compensation is on the owner of the vehicle. However, in case if the amount of compensation awarded by the learned Commissioner has been deposited by the insurance company, the insurer of the vehicle is at liberty to draw the proceedings for recovery of the amount from the insured, i.e. the owner of the vehicle. Further, if the claimant has not withdrawn the total amount of compensation as yet, the learned Commissioner before releasing the amount of compensation in favour of the claimant, shall direct that some security be furnished by the owner of the vehicle. 12- With aforesaid observation, the appeal stands partly allowed. (B.C. Kandpal, J.) ISB