IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA F.A.O.No. 490 of 2003. Judgment reserved on : 24.4.2009. Date of decision : 4.5. 2009. Kamla Devi & others …Appellants. Versus Shyam Lal & another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes. For the Appellants : Ms. Devyani Sharma, Advocate. For the Respondents : Mr. R.K.Gautam, Senior Advocate with Mr. Jeet Ram Poswal, Advocate for respondent No.1. Mr. B.M.Chauhan, Advocate for respondent No. 2. _______________________________________________________________ Kuldip Singh, Judge The appellants were applicants along with one Gurnam Singh in case No. 20 of 2001 which was filed before Commissioner, Workmen’s Compensation, Nalagarh claiming Rs.10.00 lac compensation along with interest at the rate of 12% on account of death of Kuldeep Chand driver. The Commissioner dismissed the claim petition on 5.8.2003, hence appeal was filed by appellants and Gurnam Singh for setting-aside the order dated 5.8.2003. 2. The further case of the appellants is that on 13.8.2001 Kuldeep Chand was driving truck bearing registration No. HP-24-2513 loaded with wheat from Rajpura to Bajaura and reached near Sarsa river. The water level in the ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 river was low and the other vehicles were crossing the river. Kuldeep Chand also started crossing the river with truck No.HP-24-2513 and when the truck reached the middle of the river suddenly the water level in the river increased. The truck No.HP-24-2513 and another truck No.HP-24-2613 were trapped in the river, Kuldeep Chand washed away in the river with the current of water. Joginder Singh driver of the another truck No.HP-24-2613 had seen the whole accident. Rapat No. 10 was accordingly lodged at Police Station, Nalagarh on 14.8.2001. The dead body of Kuldeep Chand was not recovered. Kuldeep Chand died during the course of employment while driving truck No.HP-24- 2513. The respondent No.1 was owner and respondent No.2 was insurer of the truck at the time of accident. The deceased was earning Rs.5,000/- per month as driver of the ill-fated truck and was 35 years of age at the time of accident. The appellants are the widow, children and mother of the deceased Kuldeep Chand. Gurnam Singh appellant No.4 was also son of deceased Kuldeep Chand but he died on 16.5.2007 and his name was deleted from the appeal. 3. The respondent No.1 filed reply to the claim petition. It was pleaded that respondent No.1 had received telephonic message that truck No.HP-24-2513 had been washed away in Sarsa river. He got recovered the vehicle from the river on 16.8.2001. It was denied for want of knowledge that Kuldeep Chand driver had washed away in the river. It was denied that the deceased was getting salary Rs.5000/- per month. He was being paid salary Rs.2500/- per month and Rs.50/- per day food allowance. The amount claimed is excessive. It was admitted that Kuldeep Chand was in the employment of respondent No.1 4. The respondent No.2 insurer also contested the petition by filing reply and took preliminary objections that registration certificate, route permit, fitness certificate, insurance etc. of the truck were not in order at the time of 3 the accident, therefore, insurer is not liable to pay any compensation. The deceased was not holding valid and effective driving licence at the time of the accident. The appellants are not entitled to compensation, amount claimed is otherwise excessive. The truck No.HP-24-2513 was being driven in violation of the insurance policy and Motor Vehicles Act. The accident was not reported by respondent No.1 and, therefore, insurer is not liable to pay any interest. The appellants and respondent No.1 had not given the particulars of the insurance of truck No.HP-24-2513 and, therefore, the plea was taken by insurer that truck was not insured. On merits, the employment of deceased with respondent No.1 as driver was denied so also his income. The dead body of Kuldeep Chand was not recovered, therefore, plea was taken that it cannot be said that Kuldeep Chand had died. The insurer has denied the claim. The Commissioner had framed the following issues:- 1. Whether the deceased was a workman under the Compensation Act?...O.P.A. 2. Whether the deceased died while discharging the duties under respondent No.1 and is entitled for compensation? …O.P.A. 3. Whether the deceased workman was not having valid and effective driving license? ..O.P.R.2. 4. Whether the owner of the vehicle was not having valid documents of the vehicle? ..O.P.R.2 5. Relief. Issue No.1 was answered in affirmative. In issue No.3 it was held that driver was not holding valid and effective driving licence. Under issue No.4, it was held that insurance cover Ex.RW-1/C of the truck was valid from 4.12.2000 to 3.12.2001 and the truck was having certificate of registration Ex.RW-1/B. In issue No.2, it was held that appellants are not entitled to compensation and the claim petition was dismissed, hence appeal by the claimants which has been admitted on the following substantial questions of law:- 4 1. Whether the learned Commissioner has erroneously dismissed the application of the appellants for grant of compensation by wrongly interpreting the evidence of parties particularly, PW-2, PW-3, PW-4 and PW-5 and Exhibit PW-4/A, that is, the death certificate which conclusively proved that Shri Kuldip Chand was employed as Driver by the respondent No.1 and had died in sudden floods during the course of his employment? 2. Whether the learned Commissioner was right in applying the technicalities of Section 107 of the Indian Evidence Act, 1872 to the application for compensation under the Workmen’s Compensation Act? 3. Whether it was open for the learned Commissioner to hold that the deceased had no valid driving licence when it was proved by the claimants that the deceased had a valid driving licence which he kept with himself and had been washed away in the flood at the time of his death, particularly, when no evidence to the contrary by the respondents had been placed on record? 5. I have heard Ms. Devyani Sharma, Advocate learned counsel for the appellants and Mr. R.K.Gautam, Senior Advocate, learned counsel for respondent No.1 and Mr. B.M.Chauhan, Advocate, learned counsel for respondent No.2 and have also gone through the record. Ms. Devyani Sharma has submitted that appellants have independently proved death of Kuldeep Chand in the accident even though his dead body was not recovered. Kuldeep Chand was washed away in the river. He was not seen thereafter by anyone not only during the pendency of the proceedings before the Commissioner but even now till the appeal was heard. She has submitted that the evidence on record leads to only one inference that Kuldeep Chand had died. The Commissioner has wrongly applied Section 107 of the Indian Evidence Act in rejecting the claim of the appellants. The Commissioner has wrongly held that Kuldeep Chand was not holding valid and effective driving licence at the time of accident. She has submitted that appellants are entitled to compensation, 5 interest, penalty from the respondents in accordance with Act keeping in view the age and income of the deceased. Mr. R.K.Gautam, Senior Advocate and Mr. B.M.Chauhan, learned counsel for the respondents have supported the impugned order. 6. The substantial questions of law No.1 to 3 are interconnected, therefore, all of them are being taken up together for disposal. PW-1 Mangat Ram has proved rapat No.10 dated 14.10.2001 Ex.PW-1/A. PW-2 Kamla Devi has stated that her husband Kuldeep was driver on truck No.HP-24-2513, on 13.8.2001 his vehicle was trapped in the river and all of a sudden water level in the river increased and the truck washed away, her husband Kuldeep Chand died. The deceased was earning Rs.5000/- by way of salary as driver of the truck. The deceased was having driving licence which he used to keep with him which was also washed. The deceased was 35 years of age at the time of accident. In cross-examination, she has stated that the dead body of the deceased was not recovered. The death of her husband was reported by his younger brother. The dead body of the deceased was searched for about two months but that was not found. 7. PW-3 Joginder Singh has stated that he was driver on truck No.HP-24-2613 owned by Shyam Lal. On 12.8.2001 he and Kuldeep who was driver on truck No.HP-24-2513 took their respective trucks from Barmana to Pachkulla and on return on 13.8.2001 went to Rajpura and from there loaded wheat of Food Corporation of India to Bajaura. They reached Sarsa river Nalagarh at 11.00 p.m. and were crossing the river but all of a sudden flood came and both the trucks were trapped in the middle of the river. They could not come out, they even stood up on the tool box of the trucks. The truck of Kuldeep was ahead of his truck and it washed away in the water and Kuldeep was also washed away in the water. The truck took a tilt and he saw Kuldeep washing in the flood and he died. He was taken out at 8’ Clock in the morning by the villagers with the help of ropes and at that time also, water level in the 6 river had not receded. He was drawing Rs.5000/- per month salary so also Kuldeep. In cross-examination, he has stated that they opted the route as directed by the owner of the trucks. It was moonlit night. 8. PW-4 Yog Raj has stated that as per record Kuldeep Chand had died on 13.8.2001 and a certificate to this effect is Ex.PW-4/A. In cross- examination he has stated that death of Kuldeep Chand was recorded as per information given by Paramjit Singh. PW-5 Amarjit Singh brother of Kuldeep deceased has stated that deceased was driver on truck No.HP-24-2513. He has stated more or less same as stated by PW-2 Kamla Devi. He has stated that date of birth of Kuldeep Chand was 13.10.1965 as per Ex.PW-4/A. 9. RW-1 Prem lal is the General Power of Attorney holder of Shyam Lal owner of truck No.HP-24-2315. He has stated that Kuldeep Chand was driver on truck No.HP-24-2315 and was being paid Rs.2500/- per month salary and Rs.50/- daily allowance. On 14.8.2001 he received a telephone from Nalagarh police that truck had been washed away in Sarsa river. He went to the spot and found the truck was trapped in Sarsa river. On spot, he came to know that Kuldeep driver had washed away in the river. He was searched but was not found anywhere. Ex.RW-1/B is the R.C. of the vehicle and Ex.RW-1/C is the policy. Kuldeep Chand was untraceable till witness made the statement. In cross-examination, he has stated that both the vehicles No.HP-24-2513 and HP-24-2613 were trapped in the river. One truck was being driven by Joginder Singh and the other truck by Kuldeep Chand. 10. Ex.PW-4/A is the matriculation examination certificate of Kuldeep Chand showing his date of birth 13.10.1965. Ex.RW-2/A is the copy of policy of truck No.HP-24-2513 from 4.12.2000 to 3.12.2001. Ex.PW-1/C is the another office copy of the policy of truck No.HP-24-2513 from 4.12.2000 to 3.12.2001. Ex.PW-1/B is the certificate of registration of truck No.HP-24-2513. Ex.PW-1/A is the copy of rapat No.10 dated 14.10.2001. Ex.PW-4/A is the copy of death certificate of Kuldeep Chand showing his date of death 13.8.2001. 7 11. PW-3 Joginder Singh was the driver of truck No.HP-24-2613. The truck No.HP-24-2613 and truck No.HP-24-2515 were owned by respondent No.1. He has stated that truck No.HP-24-2513 was being driven by Kuldeep on 13.8.2001. Truck No.HP-24-2613 and truck No.HP-24-2513 were crossing Sarsa river at about 11.00 p.m. on 13.8.2001 but all of a sudden the water level in Sarsa river increased and Kuldeep Chand washed away in the river. RW-1 Prem Lal, General Power of Attorney holder of respondent No.1 has corroborated the statement of PW-3 Joginder Singh when he has stated that on 14.8.2001 he received a telephonic call from Nalagarh police that their truck had washed away in the river. He went to the spot and found that truck was trapped in the water and there he came to know that driver Kuldeep had washed away in the water. He was searched but not found and till today his whereabouts were not known. 12. PW-2 Kamla Devi has stated that dead body of her husband was not found. PW-5 Amarjit Singh has also stated that his brother had washed away in the water and the dead body was not found despite search. He died in the accident. The burden of proving death of a person known to have been alive within 30 years under Section 107 of the Indian Evidence Act, 1872 is on the person who affirms it. Section 108 is an exception to Section 107. It provides that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. The two Sections do not say that unless dead body of a person is seen or recovered then the death of a particular person is not proved. Section 114 of the aforesaid Act provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. It has been proved that truck No.HP-24-2513 of Kuldeep 8 Chand was trapped in the middle of the river on 13.8.2001 and so also PW-3 Joginder Singh alongwith truck No.HP-24-2613. The truck No.HP-24-2513 had tilted due to the pressure of the flood water and Kuldeep Chand washed away, he was not seen dead or alive thereafter even by his wife PW-2 Kamla Devi and brother Amarjit Singh PW-5. 13. Mr. B.M.Chauhan, learned counsel for the respondent has relied Addala Prabhavathi and others Vs. M.N. V.S. Murali Krishna and another, 2006 ACJ, 1524 and Suraj Pal and another Vs. Vinod Kumar Bajpai and another, 2008 ACJ, 1739, but both these judgments are not applicable in the present case. In those cases, it was held that the claimants were disabled for not having filed claim petitions upto 7 years from the dates since when the drivers were not seen. It was held that the claim petitions were within two years after the expiry of seven years. The question in the present case is whether in absence of tracing of the dead body of Kuldeep Chand it can be said that he was dead. In Ram Singh Vs. Board of Revenue, U.P. Allahabad and others, AIR 1964, Allahabad, 310, it was held that Section 108 Indian Evidence Act, is not exhaustive on the question of presumptions as regards death of a person. The Court may make a suitable presumption in accordance with the circumstances of each case. In that case, illustration has been given like this, suppose, a man sails in ship; and the ship sinks. Thereafter the man is never seen alive. Under such circumstances, it is reasonable to assume that the person died in the shipwreck. In the present case, Kuldeep Chand was not seen after 13.8.2001. The appeal is continuation of the original proceeding. Kuldeep Chand is missing since 13.8.2001 and he was not seen or heard by the persons who would naturally have heard of him till the hearing of the appeal on 24.4.2009. It is not the case of the respondents that Kuldeep Chand was seen by anybody. Therefore, under Section 108 read with Section 114 of the Indian Evidence Act, it is reasonable to presume that respondents have failed to discharge their burden that Kuldeep Chand had not died in the manner 9 as projected by the appellants. It is thus held that Kuldeep Chand had in fact died on 13.8.2001 when he was washed away in the Sarsa river. 14. There is no denial of the fact that Kuldeep Chand had died during the course of employment under respondent No.1. Kuldeep Chand was born on 13.10.1965 as per Ex.PW-4/A and was 36 years of age on 13.8.2001. RW-1 Prem Lal, General Power of Attorney holder of owner of the truck has stated that Kuldeep Chand was being paid Rs.2500/- per month salary and Rs.50/- per day allowance. As per clause (m) of sub section (1) of Section 2 of the Act wages includes any privilege or benefit which is capable of being estimated in money. In Senior Divisional Manager, New India Assurance Co. Ltd. Vs. K.Kiran and another, 2007, ACJ, 1153, it has been held that daily bhatta paid to a cleaner in a truck has to be included in the wages of the workman for determining compensation. Therefore, Rs.50/- daily allowance which was being paid to Kuldeep Chand is to be included in his wages and therefore total wages of Kuldeep Chand would come to Rs.4000/- ( Rs.2500 + Rs.1500). 15. According to Explanation – II to Clause (b) of sub section 1 of Section 4 of the Act, where monthly wages of a workman exceed 4000 rupees, his monthly wages for the purposes of clause (a) and (b) shall be deemed to be 4000/- rupees only. Therefore, in the present case for assessing the compensation, the monthly wages are taken Rs.4000/- per month. The deceased was 36 years at the time of the accident, hence as per Schedule-IV of the Act, factor of 194.64 is applicable for assessing the compensation which comes to Rs.194.64 x 4000 / 2 = Rs. 3,89,280/-. 16. In Pratap Narain Singh Deo Vs. Shrinivas Sabata and another, AIR 1976, S.C. 222, the Supreme Court has held “the employer therefore became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workman by the accident which admittedly arose out of and in the course of the employment.” In that case, the workman was injured on 6.7.1968. In Sita Ram Vs. Satvinder Singh & another, Latest HLJ 2008 10 (HP) 1110 and The Oriental Insurance Company Ltd. Vs. Miss Sushma and others, 2008 (2) SLC, 424, it has been held that compensation falls due on the date of accident. According to Section 4 A, in case the employer has not paid compensation within one month from the date it fell due, then the employer is liable to pay simple interest @ 12% on the amount of compensation. Therefore, on amount of Rs 3,89,280/-, the respondents are liable to pay interest at the rate of 12% w.e.f. 13.9.2001 till payment. 17. PW-2 Kamla Devi widow of Kuldeep Chand has stated that her husband was having a driving licence which was also washed away in the accident. The explanation given by PW-2 appears to be reasonable. It is common knowledge that driver is expected to keep driving licence with him while driving the vehicle. Kuldeep Chand was washed away in the river and his body was not recovered and, therefore, there was no question of placing on record driving licence by the appellants. The burden of proving valid and effective driving licence was on insurer. PW-2 Kamla Devi on the question of licence was not cross-examined by the insurer. The insurer has led no evidence regarding the driving licence of the deceased. In other words, the insurer has not discharged the burden of proving that deceased was not holding valid and effective driving licence at the time of accident. In Surender Singh Vs. Smt. Jai Manti Devi and others, Latest HLJ 2008 (HP) 1174, where no steps were taken by the insurance to discharge the onus and to show that the owner of the vehicle had handed over the vehicle to an unlicenced driver, it was held that the Tribunal was not correct in coming to the conclusion that simply because the driving licence of the deceased had not been placed on record by the owner, the Insurance Company was not liable to pay the compensation. The insurer in the present case has miserably failed to prove that Kuldeep Chand was not holding valid and effective driving licence at the time of accident. The Commissioner has wrongly decided the issue No.3 against the appellants. 11 18. The respondent No.1 has not given any explanation why the compensation was not paid along with interest to the appellants within statutory time or reasonable time, therefore, in the facts and circumstances of the case and in the interest of justice in my opinion, it will be just and equitable if respondent No.1 is burdened to pay 25% penalty on amount of compensation Rs.3,89,280/- which comes to Rs. 97,320/-. The truck No.HP-24-2513 was insured with respondent No.2, therefore, amount of compensation and interest shall be paid by respondent No.2 as held in Ved Prakash Garg Vs. Premi Devi and others (1997) 8 SCC 1 and in L.R.Ferro Alloys Ltd. Vs. Mahavir Mahto and another (2002) 9 SCC 450. On the amount of compensation Rs. 3,89,280/- interest at the rate of 12% per annum w.e.f. 13.9.2001 is to be paid by insurer and penalty by owner. The penalty amounting to Rs. 97,320/- shall be paid by respondent No.1 to the appellants. 19. In view of the above discussion, the Commissioner has wrongly held that the appellants are not entitled to compensation as the body of the Kuldeep Chand was not traced and he was not holding valid and effective driving licence at the time of the accident. The substantial questions of law No.1 to 3 are decided in favour of appellants and against respondents. The impugned order is liable to be set-aside. 20. No other point was urged. 21. As a result of the above discussion, the appeal is allowed, the order dated 5.8.2003 passed by the Commissioner, Workmen’s Compensation in case No. 20 of 2001 is set-aside and an award of Rs. 3, 89,280/- is passed in favour of the appellants and against respondents. The respondent No.2 shall pay an amount of Rs.3,89,280/- to appellants as compensation along with interest at the rate of 12% w.e.f. 13.9.2001 till deposit/payment, respondent No.1 shall pay to appellants Rs. 97,320/- on account of penalty within two 12 months, failing which the respondent No.1 shall pay interest on Rs.97,320/- at the rate of 9% per annum till payment. No costs. May 4, 2009. (Kuldip Singh) (GR) Judge. 13