1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL No. 416 OF 2010 1. Ajinath Kashinath Nande, Age 48 years, Occu. Agril., R/o Ropla (K), Tq. Madha, Dist.Solapur 2. Kashibai W/o Ajinath Nande, Age 45 years, Occu. Household, R/o as above .. APPELLANTS VERSUS 1. Shashikant Vishnu Mali, Age Major, Occu. Transport Business, R/o Ropla (K), Tq. Madha, Dist. Solapur. 2. The Divisional Manager, National Insurance Co. Ltd. Shubhray Towers, Datta Chowk, Solapur. .. RESPONDENTS ... Shri A.S. More, Advocate for appellants Shri S.V. Kulkarni, Advocate for respondent No. 2 CORAM :- S.V. GANGAPURWALA, J. DATE : 30th AUGUST, 2010. ORAL JUDGMENT :- 1. Heard learned counsels for the parties. 2 2. The appellants assail the order, dated 18th November, 2009 passed by the Commissioner for Workmen’s Compensation and Civil Judge Senior Division, at Osmanabad in W.C.A. No. 8 of 2000, whereby the application of the appellants claiming compensation under Section 4 of the Workmaen’s Compensation Act, on account of the death of their son Ravindra is dismissed. 3. The appellants are the parents of the deceased Ravindra, who was in employment with respondent No. 1. He was earning monthly salary of Rs. 2,000/-, the tempo in question was owned by respondent No. 1 and insured with the respondent No. 2. 4. On 27th January, 2000, the tempo met with an accident at Osmanabad-Yeshdi road. The deceased Ravindra was driving the said vehicle. It is alleged, that at the time of said accident, permanent driver of said tempo was sitting besides driver’s seat. It is alleged, in the petition that the deceased Ravindra was employed as driver-cum-cleaner with the respondent No1. 3 The employer / respondent No. 1 though served did not contest the matter. The respondent No. 2 Insurance Company contested the matter by filing written statement, and averred that the deceased Ravindra was employed as a cleaner, and he was not authorised to drive the said vehicle and as such, it cannot be said that the deceased Ravindra died out of employment and the during the course of employment. 5. The Commissioner for Workmen’s compensation, while dismissing the application of the appellants observed that Ravindra was employed with the respondent No. 1, as a cleaner. Though the accident is caused during the course of employment, it cannot be said that the accident is caused out of employment. Shri More, learned Counsel appearing for the appellants, strenuously urged that the pleadings in the application that the deceased Ravindra was appointed Driver-cum-clearner are not traversed by the employer. In view of the, principle of non-traverse, the said pleadings deserve to be accepted and if it is accepted that the deceased 4 Ravindra was appointed driver-cum-cleaner then the finding that the accident is not caused out of employment is erroneous. The learned Counsel further submitted that the deceased Ravindra had valid driving license, as observed by the Court below. So also the Commissioner has come to the conclusion that there is no breach of any of terms and conditions of insurance policy, in such circumstances prayed that the appeal be allowed. 6. Shri Kulkarni, learned counsel appearing for the respondent No. 2 /Insurance Company, contended that the Commissioner on taking into account totality of the evidence has categorically come to the conclusion that deceased Ravindra was appointed as a cleaner and there cannot be two drivers on the said vehicle. The said vehicle being light motor vehicle and the policy also covers the risk of one driver only. On this count, Shri Kulkarni submits that no error is committed by the Commissioner, while dismissing the application, and as such, prayed for dismissal of the appeal. 5 7. With the assistance of learned Counsels, I have gone through the record, the Commissioner has specifically come to the conclusion that the accident has occurred, during the course of employment of deceased Ravindra. The Commissioner was of the opinion, that deceased Ravindra was appointed as cleaner and not authorised to drive the vehicle, on the basis of spot panchanama, the copies of F.I.R., inquest panchanama. 8. The spot panchanama and inquest panchanma are not public documents, they are to be proved. The Commissioner has wrongly observed that these are public documents. 9. There is no evidence putforth that the deceased Ravindra was appointed only as a cleaner. The employer who was the best person to deny the claim of the appellants, that the deceased Ravindra was appointed as a driver-cum- cleaner, has not disputed the said fact. The Insurance Company had no personal knowledge about the engagement of Ravindra by the respondent No. 6 1. When the pleadings of the appellants have not been traversed by the original respondent No. 1, there is nothing on record to disbelieve the case of the appellants that deceased Ravindra was appointed as driver-cum-cleaner. In such circumstances, he would be entitled to drive the vehicle. The observations of the Commissioner, that the accident occurred during the course of employment is not assailed by any of the parties, as such, when the Commissioner has come to the conclusion that the accident has occurred during the course of employment, then in such circumstances, it will have to be held that accident occurred out of the employment also. It is also not disputed that deceased Ravindra possessed driving licence, and he is competent to drive the said vehicle. This circumstance also substantiates, the case of the appellants that the deceased Ravindra was engaged as a driver- cum-cleaner by the respondent No. 1. 10. In the light of the above, I hold that the appellants are entitled for the compensation, on the count of deceased Ravindra. The 7 appellants have claimed an amount of Rs. 2,21,370/-,(Rs. Two lakh twenty one thousand three hundred seventy) as per the schedule given in the Workmen’s Compensation Act. Shri Kulkarni, learned counsel for the respondent No. 2, does not dispute as far as the quantum of compensation is concerned, his contention is to the extent that the appellants are not entitled for the compensation. Shri More, learned Counsel for the appellants, also claims that the appellants should be entitled for the interest and the penalty. Shri Kulkarni learned Counsel for the respondent NO. 2 submits that bonafide dispute existed between the parties. In such circumstances, it should not be saddled with interest and penalty. It is found that bonafide dispute existed and even the Commissioner ruled in favour of the respondents. In the light of the same, I am not inclined to award penalty. In the result, I pass the following order. ORDER A. Appeal is allowed. B. The impugned order passed by the Commissioner for Workmen’s Compensation & Civil 8 Judge Senior Division, at Osmanabad in W.C.A. No. 8 of 2000 is quashed and set aside and the respondents are directed jointly and severally to pay an amount of Rs. 2,21,370/- (Rs. Two lakh twenty one thousand three hundred seventy only) to the appellants with interest @ 7.5% per annum from the date of application till realization. Shri Kulkarni, learned counsel, for the respondent No. 2 states that an amount of Rs. 50,000/- is already deposited, during the pendency of the application, the said amount be adjusted from the amount of compensation. There shall be be no order as to costs. [S.V. GANGAPURWALA,J] SDM*416.10FA.