IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (WCA) No.464 with FAO Nos. 465, 466, 467, 468 and 469 of 2003. Judgement reserved on: 22.05.2007. Date of decision: June 25, 2007 (For title, please see pages (i) and (ii)) Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants: (see pages –(i) & (ii). For the respondents: Kuldip Singh, Judge This judgment shall dispose of FAO Nos.464, 465, 466, 467, 468 and 469 of 2003. All these appeals have arisen out of common order dated 9.7.2003 passed by Commissioner, under Workmen’s Compensation Act, Jhakri in FA No.5 of 2001, FA No.3 of 2001, NFA No.28 of 2001, FA No.6 of 2001, NFA No.29 of 2001 and FA No.4 of 2001 respectively. FA No.3 of 2001, FA No.4 of 2001, FA No.5 of 2001, FA No.6 of 2001 and NFA No.28 of 2001 and NFA 1 Whether the reporters of the local papers may be allowed to see the Judgment ? …2… No.29 of 2001 were filed by the petitioners / claimants, claiming compensation under the Workmen’s Compensation Act, 1923 (for short’ the WC Act’). In FA No.3 of 2001, FA No.4 of 2001, FA No.5 of 2001 and FA No.6 of 2001 compensation was claimed by the dependants of deceased workmen, whereas in NFA No.28 of 2001 and NFA No.29 of 2001 the claim petitions were filed by the injured workmen. The Commissioner in the impugned order has held New India Assurance Company to pay the entire compensation along with interest to the claimants with a direction to the insurer to deposit whole of the compensation amount Rs.19,69,930/- before the Commissioner within one month from the receipt of the order. The New India Assurance Company, in these circumstances, has filed the above appeals against the impugned order. 2. The brief facts in each appeal, are as follows:- (i) FAO No.464 of 2003 3. Smt.Usha Devi, widow and Kumari Anjana daughter of Karam Chand, filed claim petition on the grounds that Karam Chand, aged 36 years was employed with employer ANS Earthmovers as driver on truck No.HP-12-9929 on Rs.3850/- per month salary, he received fatal injuries on the night intervening 29/30.3.2001 during the course of his employment with the employer. It has been alleged that on 29.3.2001, work continued late, as such Karam Chand along with other drivers and conductors came to the residence, which was provided by the employer for staying/retiring. On the following day, the …3… work was to start early. At about 2 A.M. accident took place due to massive land slide in which big boulders fell on the residence provided to workers by employer. In the accident Karam Chand received fatal injuries and he died on the same day. It has been alleged that New India Assurance Company, being the insurer of the truck, is liable to pay the compensation. The claimants have claimed statutory compensation, 18% interest and 50% penalty both from the employer and the insurer. 4. The employer M/s.ANS Earthmovers contested the claim by filing a reply in which preliminary objections have been taken that injuries were not sustained by the deceased during the course of employment. The employer is not at all liable to pay compensation to the claimants. The injuries were sustained by an act of God and not during the course of employment. In any case, liability to pay compensation is of M/s New India Assurance with which truck No.HP- 12-9929 was insured. On merits, employment of deceased as driver on truck No.HP-12-9929 with employer M/s ANS Earthmovers was admitted. The accident took place due to land slide, which was triggered by rains. The claimants are not entitled to compensation. The petition is bad for misjoinder of necessary parties. 5. The insurer contested the claim by filing reply in which preliminary objections have been taken that injuries leading to the death of the deceased were not caused during the course of the employment of the deceased. The petition is bad for misjoinder of …4… insurer. There is collusion between claimants and employer. The insurer is not liable to pay any claim. The claim is not covered by the insurance policy. There was no relationship of employer and employee in between M/s ANS Earthmovers and the deceased. On merits, it has been submitted that accident appears to be an act of God. The insurer is not liable to pay any compensation. The accident appears to be outside the employment. (ii) FAO No.465 of 2003: 6. Smt.Surto Devi, mother and Karam Chand father of Gian Chand, filed claim petition on the grounds that Gian Chand, aged 37 years was employed with employer ANS Earthmovers as driver on truck No.HP-12-9929 on Rs.3500/- per month salary, he received fatal injuries on the night intervening 29/30.3.2001 during the course of his employment with the employer. It has been alleged that on 29.3.2001, work continued late, as such Gian Chand along with other drivers and conductors came to the residence, which was provided by the employer for staying/retiring. On the following day, the work was to start early. At about 2 A.M. accident took place due to massive land slide in which big boulders fell on the residence provided to workers by employer. In the accident Gian Chand received fatal injuries and he died on the same day. It has been alleged that New India Assurance Company, being the insurer of the truck, is liable to pay the compensation. The claimants have claimed statutory compensation, 18% interest and 50% penalty both from the employer and the insurer. …5… 7. The employer M/s ANS Earthmovers contested the claim by filing a reply in which preliminary objections have been taken that workman did not suffer injuries during the course of employment. The employer is not at all liable to pay compensation to the claimants. The injuries were sustained by an act of God and not during the course of employment. In any case, liability to pay compensation is of M/s New India Assurance with which truck No.HP-12-9929 was insured. On merits, employment of deceased as driver on truck No.HP-12-9929 with employer M/s ANS Earthmovers was admitted. The accident took place due to land slide, which was triggered by rains. The claimants are not entitled to compensation. The petition is bad for misjoinder of necessary parties. 8. The insurer contested the claim by filing reply in which preliminary objections have been taken that injuries leading to the death of the deceased were not caused during the course of the employment of the deceased. The petition is bad for misjoinder of insurer. There is collusion between claimants and employer. The insurer is not liable to pay any claim. The claim is not covered by the insurance policy. There was no relationship of employer and employee in between M/s ANS Earthmovers and the deceased. On merits, it has been submitted that accident appears to be an act of God. The insurer is not liable to pay any compensation. The accident appears to be outside the employment. …6… (iii) FAO No.466 of 2003: 9. Ashok Kumar was employed as mechanic by employer ANS Earthmovers as driver on truck No.HP-12-9929, he allegedly received injuries during the course of his employment with the employer on the night intervening 29/30.3.2001. It has been alleged that at about 2 A.M. accident took place due to massive land slide in which big boulders fell on the residence of the workers. In the accident Ashok Kumar claimant received injuries, which rendered him 100% disable. At the time of accident, he was 32 years of age and was being paid Rs.4000/- per month wages. He has claimed statutory compensation, 18% interest and 50% penalty both from the employer as well as the insurer. 10. The employer M/s ANS Earthmovers contested the claim by filing a reply in which preliminary objections have been taken that injuries were not sustained during the course of employment by the workman. The employer is not at all liable to pay compensation to the claimant. The injuries were sustained by an act of God and not during the course of employment. In any case, liability to pay compensation is of M/s.New India Assurance with which truck No.HP-12-9929 was insured. On merits, employment of injured as helper on truck No.HP- 12-9929 with employer M/s.ANS Earthmovers was admitted. The accident took place due to land slide, which was triggered by rains. The claimants are not entitled to compensation. The petition is bad for misjoinder of necessary parties. …7… 11. The insurer contested the claim by filing reply in which preliminary objections that injuries were caused during the course of the employment of the injured. The petition is bad for misjoinder of insurer. There is collusion between claimants and employer. The insurer is not liable to pay any claim. The claim is not covered by the insurance policy. There was no relationship of employer and employee in between M/s ANS Earthmovers and the injured. On merits, it has been submitted that accident appears to be an act of God. The insurer is not liable to pay any compensation. The accident appears to be outside the employment. (iv) FAO No.467 of 2003: 12. Smt.Pammi Devi, widow, Kumari Indu Bala, Raju, Bhagu, daughter and sons of Yashpal Singh, filed claim petition on the grounds that Yashpal Singh, aged 38 years was employed with employer ANS Earthmovers as driver on truck No.HP-12-9919 on Rs.3750/- per month salary, he received fatal injuries on the night intervening 29/30.3.2001 during the course of his employment with the employer. It has been alleged that on 29.3.2001, work continued late, as such Yashpal Singh along with other drivers and conductors came to the residence, which was provided by the employer for staying/retiring. On the following day, the work was to start early. At about 2 A.M. accident took place due to massive land slide in which big boulders fell on the residence provided to workers by employer. In the accident, Yashpal Singh claimant received fatal injuries and he …8… died on the same day. It has been alleged that New India Assurance Company, being the insurer of the truck, is liable to pay the compensation. The claimants have claimed statutory compensation, 18% interest and 50% penalty both from the employer and the insurer. 13. The employer M/s ANS Earthmovers contested the claim by filing a reply in which preliminary objections have been taken that injuries were not sustained by deceased during the course of employment. The employer is not at all liable to pay compensation to the claimants. The injuries were sustained by an act of God and not during the course of employment. In any case, liability to pay compensation is of M/s New India Assurance with which truck No.HP- 12-9919 was insured. On merits, employment of deceased as driver on truck No.HP-12-9919 with employer M/s ANS Earthmovers was admitted. The accident took place due to land slide, which was triggered by rains. The claimants are not entitled to compensation. The petition is bad for misjoinder of necessary parties. 14. The insurer contested the claim by filing reply in which preliminary objections that injuries leading to the death of the deceased were not caused during the course of the employment of the deceased. The petition is bad for misjoinder of insurer. There is collusion between claimants and employer. The insurer is not liable to pay any claim. The claim is not covered by the insurance policy. There was no relationship of employer and employee in between M/s ANS Earthmovers and the deceased. On merits, it has been …9… submitted that accident appears to be an act of God. The insurer is not liable to pay any compensation. The accident appears to be outside the employment. (v) FAO No.468 of 2003: 15. Ashok Kumar was employed as helper by employer ANS Earthmovers on truck No.HP-12-9919, he allegedly received injuries during the course of his employment with the employer on the night intervening 29/30.3.2001. It has been alleged that at about 2 A.M. accident took place due to massive land slide in which big boulders fell on the residence provided to the workers. Ashok Kumar claimant suffered injuries in the accident, which rendered him 100% disable. At the time of accident, he was 20 years of age and was being paid Rs.1800/- per month wages. He has claimed statutory compensation, 18% interest and 50% penalty both from the employer as well as the insurer. 16. The employer M/s ANS Earthmovers contested the claim by filing a reply in which preliminary objections have been taken that injuries were not sustained during the course of employment by the workman. The employer is not at all liable to pay compensation to the claimant. The injuries were sustained by an act of God and not during the course of employment. In any case, liability to pay compensation is of M/s New India Assurance with which truck No.HP-12-9919 was insured. On merits, employment of injured as helper on truck No.HP- 12-9919 with employer M/s ANS Earthmovers was admitted. The …10… accident took place due to land slide, which was triggered by rains. The claimants are not entitled to compensation. The petition is bad for misjoinder of necessary parties. 17. The insurer contested the claim by filing reply in which preliminary objections that injuries were not caused during the course of the employment of the injured. The petition is bad for misjoinder of insurer. There is collusion between claimants and employer. The insurer is not liable to pay any claim. The claim is not covered by the insurance policy. There was no relationship of employer and employee in between M/s ANS Earthmovers and the injured. On merits, it has been submitted that accident appears to be an act of God. The insurer is not liable to pay any compensation. The accident appears to be outside the employment. (vi) FAO No.469 of 2003: 18. Hoshiar Singh Tyagi father and Smt.Tilotima Devi mother of Anil Tyagi, filed claim petition on the grounds that Anil Tyagi, aged 19 years was employed with employer ANS Earthmovers as Helper on truck No.HP-12-9939 on Rs.2400/- per month salary, he received fatal injuries on the night intervening 29/30.3.2001 during the course of his employment with the employer. It has been alleged that on 29.3.2001, work continued late, as such Anil Tyagi, along with other drivers and conductors came to the residence, which was provided by the employer for staying/retiring. On the following day, the work was to start early. At about 2 A.M. accident took place due to massive land …11… slide in which big boulders fell on the residence provided to workers by employer. In the accident, Anil Tyagi received fatal injuries and he died on the same day. It has been alleged that New India Assurance Company, being the insurer of the truck, is liable to pay the compensation. The claimants have claimed statutory compensation, 18% interest and 50% penalty both from the employer and the insurer. 19. The employer M/s ANS Earthmovers contested the claim by filing a reply in which preliminary objections have been taken that injuries were not sustained by the deceased during the course of employment. The employer is not at all liable to pay compensation to the claimants. The injuries were sustained by an act of God and not during the course of employment. In any case, liability to pay compensation is of M/s New India Assurance with which truck No.HP- 12-9939 was insured. On merits, employment of deceased as Helper on truck No.HP-12-9939 with employer M/s ANS Earthmovers was admitted. The accident took place due to land slide, which was triggered by rains. The claimants are not entitled to compensation. The petition is bad for misjoinder of necessary parties. 20. The insurer contested the claim by filing reply in which preliminary objections that injuries leading to the death of the deceased were not caused during the course of the employment of the deceased. The petition is bad for misjoinder of insurer. There is collusion between claimants and employer. The insurer is not liable to pay any claim. The claim is not covered by the insurance policy. …12… There was no relationship of employer and employee in between M/s ANS Earthmovers and the deceased. On merits, it has been submitted that accident appears to be an act of God. The insurer is not liable to pay any compensation. The accident appears to be outside the employment. 21. The Commissioner, vide order dated 9.7.2001, in FA Nos. 5, 3, 6, 4 of 2001, NFA No.28 and 29 of 2001, has allowed compensation along with interest as follows:- Sr. No. Case No. Compensation awarded Simple interest w.e.f. 1.5.2001 to the date of deposit @ 12% per annum. Total amount. 1. FA No.3 of 2001 Rs.3,36,245/- Rs.91,671/- Rs.4,27,916/- 2. FA No.4 of 2001 Rs.2,70,264/- Rs.73,682/- Rs.3,43,964/- 3. FA No.5 of 2001 Rs.3,74,682/- Rs.1,02,150/- Rs.4,76,832/- 4. FA No.6 of 2001 Rs.3,55,425/- Rs.96,900/- Rs.4,52,325/- 5. NFA No.28 of 2001 Rs.1,86,854/- Rs.50,942/- Rs.2,37,796/- 6. NFA No.29 of 2001 Rs.24,449/- Rs.6666/- Rs.31,115/- 22. The New India Assurance Company has filed above appeals against the impugned award. All appeals, have been admitted on following substantial questions of law:- (i) Whether in view of the admitted fact that the policies issued by the appellant were only Act Policies and the risk covered was under the Workmen Compensation Act of the persons engaged in driving the vehicle, the company …13… could be fastened with liability in case of mechanics and helpers also? (ii) Whether in view of the fact that Gian Chand driver, Anil Tyagi helper, Karam Chand driver, Yash Pal who died on the spot and Ashok Kumar mechanic, and Ashok Kumar helper who received injuries while sleeping in the tin- shed on which boulders fell as a result of heavy rains were entitled to compensation when the vehicles insured were not involved in the accident? (iii) Whether in the facts and circumstances of the case the accident occurred during the course of employment and the appellant could be fastened with the liability to pay compensation and interest as awarded? (iv) Whether the compensation awarded is not in accordance with the principles of Workmen’s Compensation Act? 23. I have heard the learned counsel for the parties and have also gone through the record. 24. The learned counsel for the insurer has submitted that the deceased or the injured did not receive the injuries when the trucks were in use. The insurance policies Ex. R-1 to Ex.R-6 of the trucks cover the risk under the Motor Vehicles Act, 1988 ( for short ‘MV Act’) and not under the WC Act. The insurer is not liable to pay any compensation. The learned …14… counsel for the respondents supported the impugned award, whereby New India Assurance Company has been directed to pay the compensation. Substantial Questions of Law No.1 to 4. 25. The substantial questions of law No.1 to 4 are being disposed of collectively as the same are interconnected. 26. The case of the claimants in substance is common in all cases, therefore, facts in FAO No.464 of 2003, are being referred to in order to appreciate the legal controversy. The pleaded case is that Karam Chand, driver was employed by employer ANS Earthmovers on truck No. HP-12- 9929. On 29.3.2001, the work continued late, as such, Karam Chand along with others returned to resting place, which was provided by the employer for staying/retiring. Karam Chand was to start the work early on the following day. When Karam Chand was sleeping or taking rest at the residence provided by the employer, at about 2.00 a.m. on 30.3.2001 all of a sudden a massive land slide took place, he received fatal injuries and died on the spot. The claimants have submitted that accident took place during the course of employment. 27. Counsel for the insurer has submitted that the policies of the trucks under MV Act cannot be used to cover the risk under the WC Act, except to the limited extent as provided under the MV Act. He has submitted that insurer has not covered the workman of employer by way of separate policy under the WC Act. The workman was sleeping, taking rest at the residence, he was not doing any work on the truck. In the facts and circumstances of the case, job, duty of the workman cannot be extended to the place of his rest. The workman did not receive injuries in an accident involving insured truck. …15… 28. PW 1 Jagdev brother of Karam Chand has stated that on 29.3.2001, his brother and other drivers slept in the godown of the employer. He came to know that due to rain boulders fell on the residence of the employer, as a result of which his brother and others died. In his statement, he nowhere stated that at the time of the accident, Karam Chand was discharging his duty on the truck. 29. PW 2 Ashok Kumar has stated that he was working as mechanic with the employer and he has stated that on 29.3.2001, he was repairing the truck when he was hit by the boulders and was injured. In his claim petition, he has nowhere pleaded that he was repairing the truck when he was hit by the boulders. On the contrary, he has pleaded that accident took place, when due to land slide massive boulders fell on the residence of the workers, in which he was injured. He has made improvement in his statement, therefore, he cannot be believed that deceased or injured workmen were discharging their duties on their trucks at the time of the accident. It is the pleaded case of the claimants that deceased and injured workmen received injuries when they were sleeping and taking rest in their residence provided by the employer. 30. RW 1 G.S. Mathur has deposed that he was manager in M/s ANS Construction since January 2000. M/s ANS Construction had taken work from Nathpa Jhakri Power Corporation for construction of road. M/s. ANS Construction for transportation had taken some trucks with drivers, conductors and mechanics for transportation of material. M/s ANS Earthmovers used to pay wags to those drivers and conductors etc. On 30.3.2001 he received telephonic message that some drivers and conductors were injured and others had died due to landslide. They were …16… staying at a distance of 2 Kilometers from the place of work. RW 2 Jitender Mohan, Manager M/s Earthmovers has stated that M/s ANS Earthmovers had given these trucks and machines to M/s ANS Construction along with drivers and conductors. M/s ANS Earthmovers used to pay the wages of these drivers and conductors. The trucks were insured with New India Assurance Company. The accident had not taken place during the course of employment rather it took when workers were sleeping. RW 3 Satish Kumar, Senior Assistant, New India Assurance Company has proved Insurance policies Exts. R 1 to 6 of the trucks. He has stated that insured vehicles at the time of accident were not at the place of accident. The insurer has no information regarding claim of vehicles. 31. In the present case, the admitted case of the claimants is that deceased or injured workmen were staying/ resting in the residence provided by the employer. There is no worth believing evidence on record that the deceased/injured workmen were working on the truck when they were hit by the boulders in the land slide. The statement of Ashok Kumar, Mechanic is contrary to his pleaded case and, therefore, cannot be believed. The accident involving the trucks in question has not at all been proved. 32. The learned counsel for the insurer has also submitted that Section 167 of the MV Act gives an option to the claimant to file a petition either under the M.V. Act or under the WC Act. Once an option has been exercised then proceedings will be governed by that Act under which the claim petition has been filed. The insurance policies Exts. P-1 to 6 are under