FAO No.562 of 2001 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on 12.1.2010. Smt. Pinki and others ---Appellants vs. Bakshi Ram and another --Respondents. CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.J.S.Bedi,Advocate, for the appellants Mr.Amit Rawal,Advocate, for respondent No.3 Rakesh Kumar Jain, J: (Oral) This appeal is directed against order of learned Commissioner, under the Workmen Compensation Act, 1923 dated 09.6.2000, vide which claim petition filed by the appellants was dismissed on the ground that there exists no relationship of employer and employee between deceased Karan Singh and respondent No.1-Bakshi Ram. Tersely, the case set up by the claimants/appellants in the claim petition filed under Section 15 of the Workmen Compensation Act, 1923 (for short, 'the Act') is that deceased Karan Singh was employed as Driver on Maruti Car 1000 No. DL2 CE-2731 at a monthly salary of Rs.2000/- plus Rs.50/- as daily allowance etc., by respondent No.1. On 13.4.1998, Karan Singh came to taxi stand of General Bus Stand, Karnal, for his FAO No.562 of 2001 2 daily routine for taking passengers. He had taken some passengers from Karnal to Delhi/Panipat. At about 11 p.m. in the night, he went to the house of respondent No.1 (owner of the vehicle) and told him that he is going to Chandigarh with some passengers who had gone to Delhi/Panipat with him in the said vehicle. It is further mentioned in the petition that at that time, there were three passengers i.e. one male, one lady and a child of 7/8 years in his car. The deceased was poisoned on the way and his dead body was thrown in the fields near Ramgarh towards Ambala. Respondent No.1. came to know about the incident from Gurdev Singh, President, Janta Taxi Union, Bus Stand, Karnal, who rushed to the spot with Shiv Kumar, elder brother and brother-in-law Lekh Raj of the deceased. Thereafter, they went to General hospital, Kurukshetra and identified the dead body of Karan Singh. It was further claimed that appellants had claimed compensation on the ground that there was relationship of employer and employee of the deceased with respondent No,1 who died during the course of his employment. It was also alleged that FIR No.297 dated 15.4.1998 under Section 302/34 IPC and D.D.R.No.46 were registered of the occurrence. In the written statement filed on behalf of respondent No.1, it was specifically alleged that vehicle in question was insured with Oriental Insurance Company vide cover Note No.1080145 for the period from 26.2.1998 to 25.2.1999 at Branch Office-1, Karnal. In para No.2 of the reply on merits, it was admitted that deceased was employed as Driver with him at a monthly salary of Rs.1200/- , though, it was claimed that he was employed three days prior to his death. In para No.3 of reply on merits, it was further claimed that on 13.4.1998 after returning from Delhi, deceased FAO No.562 of 2001 3 Karan Singh had gone to Chandigarh for his personal work with his permission. Averments made in para No.9 of the claim petition with regard to FIR were not denied. As a matter of fact. the relationship of employer and employee and death of the deceased Karan Singh during the course of his employment was accepted, but the liability was tried to be shifted on to the Insurance Company. Respondent No.2 filed his separate written statement in which not only the relationship between employer and employee was denied but also the alleged incident in which deceased Karan Singh was alleged to have been murdered. The claimants filed replication to both the written statements of respondent Nos.1 and 2 and on the pleadings of the parties, the following issues were framed:- 1. Is the present claim application maintainable if so against whom ? 2. Whether the accident occurred during the course of his employment with the respondent No.1. ? 3. Whether there existed employer-employee relationship between the parties ? 4. Are the applicants entitled to claim any compensation ? In order to substantiate their claims, the claimants examined Smt.Pinki, widow of deceased Karan Singh, as AW-1 and after tendering a copy of the notice Mark 'A' and a copy of Death Certificate as Mark 'B', evidence was closed. Whereas respondent No.1 himself entered the witness box as RW-1 and closed his evidence. No evidence was led by the Insurance Company (respondent No.2.). The learned Commissioner, after appreciating the evidence FAO No.562 of 2001 4 available on record, came to a conclusion, while discussing Issue Nos. 1,2 and 3 together, that there was no relationship of employer and employee between the deceased and respondent No.1, therefore, the claim petition under the Act was held to be not maintainable. The learned Commissioner formed this opinion on the ground that no documentary proof has been placed on the file in order to establish the relationship of employer and employee of the deceased with respondent No.1. Mr.J.S.Bedi, learned counsel appearing on behalf of the appellants has vehemently argued that substantial question involved in this appeal is as to whether award of the learned Commissioner deserves to be set aside on the ground of misreading of evidence. It is submitted that a fact was alleged by the complainant in the petition in para No.3 to the effect that the deceased was employed with respondent No.1. which has been admitted by him in his written statement and it is evident from the fact that when the FIR was registered on 15.4.1998, deceased Karan Singh was alleged to be working as a Driver on his Maruti Car 1000 DL 2CE-2731. It was also alleged that on 30.4.1998, at about 11.p.m. in the night, deceased had come to him (respondent No.1) and had said that he had got some passengers who wanted to go to Chandigarh and at that time, he himself had seen that there was one male and one female passenger sitting on the back seat. It is also admitted that the deceased had gone to Chandigarh for the purpose of dropping the passengers. It is further submitted that at the time when the FIR was registered, respondent No.1.did not have any idea that a petition could be filed against him under the Act for the purpose of compensation. FAO No.562 of 2001 5 Therefore, the first version recorded in the FIR was correct one. He further submitted that as soon as, respondent No.1. understood that the vehicle is being run as a taxi for which the Insurance Company would not ultimately be liable, he changed his version while appearing as RW-1 and had stated that the deceased had gone to Chandigarh for his own work and on the way, 2/3 persons approached his car, out of which, there was one male, one female and a child and on the next date, he came to know that those persons who had taken lift in the car had killed Karan Singh and had thrown his dead body in the bushes, otherwise, he admitted that deceased Karan Singh was working with him as a Driver on the taxi. Learned counsel further submitted that at no stage, respondent No.1. had denied the relationship of employer and employee between the deceased with him and had rather stated on oath that the deceased was sent by him to Chandigarh for his personal work, where he died during the course of his employment. In this view of the matter, I find that the learned Commissioner has committed palpable error in appreciating the evidence on record and has rather misread the same which has resulted into manifest and gave injustice to the appellants because no documentary evidence is required in case a fact is already admitted that too on oath. At this stage, learned counsel for the Insurance Company has submitted that insofar as respondent No.2- Insurance Company is concerned, no liability could be fastened upon it as the case set up by the claimants in the claim petition itself is that the deceased was plying a taxi whereas the vehicle was not insured with the Insurance Company as a taxi but was insured for personal use. Be that as it may, the fact remains that there was a relationship FAO No.562 of 2001 6 of employer and employee between the deceased and respondent No.1 and death of the deceased during the course of his employment has been established from the evidence available on record. As such, the finding on Issue Nos. 1,2 and 3 returned by the learned Commissioner is reversed and it is held that the deceased was employee of respondent No.1. and had died during the course of his employment. Thus, the necessary corollary is that the deceased is entitled to compensation in terms of the provisions of the Act which shall be paid by respondent No.1. because the vehicle in question was admittedly being run as a taxi. Therefore, in view of breach of terms of policy, Insurance Company-respondent No.3. is absolved of its liability and liability of payment of compensation is fastened upon respondent No.1. In view of the above, this appeal is allowed and the matter is remanded back to the learned Commissioner under the Act, for determining the compensation which shall be payable to the claimants in accordance with law. January 12,2010 (Rakesh Kumar Jain) RR Judge