IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.: 13 of 2009 Reserved on: 14.6.2011. Date of decision : 18.6.2011. Oriental Insurance Company …Appellant. Versus Narpartu and others …Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. G.C.Gupta, Sr. Advocate with Mr. Man Singh, Advocate. For the respondent No.1: Mr. G.R.Palsara, Advocate. Deepak Gupta, J. 1. This appeal under the Workmen’s Compensation Act was admitted on the following questions of law:- 1. Whether the appellant Insurance Company has been rightly held to be liable to pay the compensation to respondent No.4 in the absence of the compliance of Clause 6 of the terms and conditions of the Insurance Company Ext.RW-3/C? 2. Whether the Commissioner below has wrongly awarded the compensation without their being any evidence on the record to the effect that the contractor, predecessor-in- interest of the respondents No. 2 to 4 had 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 taken a policy of insurance in respect of deceased Shri Kabir Dass? 3. Whether the Commissioner below has wrongly held the appellant liable to pay the interest @ 12% per annum in view of the judgement of the Apex Court reported in 2004 ACJ P-452? 4. Whether the Commissioner below has rightly held the appellant to be liable to pay penalty upto 30% of the compensation? 2. Briefly stated the facts of the case are that the petitioner filed a petition under the Workmen’s Compensation Act alleging that her husband Kabir Dass was employed with Rehmat Ali as helper. Rahmat Ali had taken a contract for construction of a road. On 16.6.2003 Kabir Dass was on duty, a huge rock came down and hit him and he died at the spot itself. It was claimed that the deceased was getting Rs.80/- per day and used to earn Rs.1500/- per month from other work. The deceased was aged about 23 years, 2 months and 13 days at the time of the accident. The learned Commissioner assessed the income of the deceased at Rs.2400/- per month and by applying the formula of the Workmen’s Compensation assessed the compensation at Rs.2,63,940/-. In addition thereto the Insurance Company was held liable to pay interest of Rs.1,68,169.55/- and total 3 compensation of Rs.4,32109.55/- was ordered in favour of the claimant. 3. The first argument raised by Shri G.C.Gupta, learned senior counsel for the appellant is that this is a case of no evidence and the claimant has failed to show that the deceased was employed with Rahmat Ali. 4. I have gone through the records of the case and perused the evidence. PW-1 Daulat Ram is the nephew of the claimant and her power of attorney. He stated that the deceased was employed with Rahmat Ali (contractor) as a helper. He produced a number of documents including a copy of the muster roll showing Kabir Dass as a helper in the organization of R.A. Construction being run by Rahmat Ali but unfortunately, these documents were not exhibited and marked in evidence. He has been cross-examined at length but no question has been put to him that the deceased was not an employee of Rahmat Ali. PW- 3 is Dharam Pal, who states that he was on the spot and saw the accident. He in cross- examination could not give the names of other employees and it appears that he was not present at the spot. 4 5. RW-1 is the widow of Rahmat Ali who unfortunately died during the pendency of the proceedings. She stated that the deceased was engaged as a helper by her husband and she has produced on record certain documents including RW-1/A which is a communication addressed by Rahmat Ali on the letter pad of R.A. Construction addressed to the Insurance Company, Mandi in which he had informed that Kabir Dass, helper had expired while performing his duty and requested that a claim may be lodged under the Workmen’s Compensation Act. The only question asked to this witness is with regard to the number of employees working under Rahmat Ali but there is no suggestion put to him that the deceased was not an employee of Rahmat Ali. 6. RW-2 Fateh Ram was a supervisor and he has clearly stated that the deceased was a helper and died during the course of his duty. The Insurance Company only examined RW-3, its Administrative Officer, who was not present at the spot and the Insurance Company did not care to examine any other witness. 7. The learned Commissioner on appreciation of the evidence has come to the conclusion that the deceased died during the course of his duty. 5 This is a pure finding of fact which cannot be interfered with in an appeal under the Workmen’s Compensation Act which can only be entertained on substantial question of law. 8. In my view the question whether the deceased was employed as a workman or not, what was his salary, are questions of fact and not question of law, much less substantial question of law. In any event, there is more than sufficient material on record to show that the deceased was not only employed with Rahmat Ali but was also getting a salary of Rs.80/- per day or Rs.2400/- per month. 9. The next question raised is that the Insurance Company in view of condition No.6 is not bound to pay the compensation. The main argument is that Rahmat Ali had not given correct description of the number of employees and they were shown less in number. This argument in my opinion cannot be accepted in view of the fact that only one workman was died and even if the number of workman was not correctly stated no benefit can be derived by the Insurance Company. Furthermore, the Insurance Company has not led any evidence to show what was the exact number of workers engaged by Shri Rahmat Ali and what was the total coverage. Even RW-3 has admitted 6 that on the date of accident nine workers were covered under different policies. Therefore, the Insurance Company cannot escape its liability on this ground. Therefore, questions No. 1 and 2 are answered against the Insurance Company. 10. As far as question No.4 is concerned, the Insurance Company can never be held liable to pay penalty. The Apex Court time and again has held that the Insurance Company cannot be held liable to pay penalty. However, as far as question No.3 is concerned, the Insurance Company has failed to point out any clause in the policy whereby it had not agreed to indemnify the insured with regard to the payment of interest. This Court has repeatedly held that in case the Insurance Company wants to avoid payment of interest it must clearly show that there is clause in the policy whereby the Insurance Company has clearly stated that it shall not be liable to pay interest. The judgement of the Apex Court in P.J.Narayan vs. Union of India and others, 2004 ACT 452, is not at all applicable because in that case there was a specific clause in the policy that the Insurance Company would not be liable to pay interest. 7 11. In view of the above discussion, the appeal is dismissed. The award of the learned Commissioner is upheld but it is directed that the Insurance Company shall not be liable to pay any penalty. No costs. 18th June, 2011 ( Deepak Gupta ) ™ Judge.