FAO No.5480 of 2005 & FAO No.5663 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH FAO No.5480 of 2005 Date of Decision :04.10.2010 National Insurance Company Ltd. ...........Appellant Versus Smt.Kamla and Ors. ..........Respondents Coram Hon'ble Mr. Justice K.Kannan, Present: Mr.Man Mohan, Advocate for Mr.Suman Jain, Advocate, for the appellant. Mr.Ajit Atri, Advocate, for the respondent Nos.1 to 5. Mr.Tara Chand Dhanwal, Advocate, for respondent Nos.6 & 7. FAO No.5663 of 2005 Date of Decision :04.10.2010 Smt.Kamla and Ors. ...........Appellants Versus Gazhia @ Gajender & Ors. ..........Respondents Coram Hon'ble Mr. Justice K.Kannan, Present: None for the appellant. Mr.Tara Chand Dhanwal, Advocate, for respondent Nos.1 & 2. Mr.Neeraj Khanna, Advocate, for Mr.Ravinder Arora, Advocate, for respondent No.3. *********** 1. The appeal FAO 5480 of 2005 is filed by the insurer pleading for exclusion of liability on the ground that the deceased was travelling on the roof of the truck and he was hit by the over hanging FAO No.5480 of 2005 & FAO No.5663 of 2005 2 branch of tree and he fell down on the truck and succumbed to injuries. 2. The Tribunal found that the accident has taken place by the use of motor vehicle and rejected the plea that he was a gratuitous passenger travelling in the goods carriage. It was evident that he was a labourer under the employer-owner and he was travelling in the goods carriage for the purpose of loading some goods. Evidently he was travelling in the truck as a workman in the course of his employment. The learned counsel appearing for the Insurance Company contended that there was already a cleaner going in the same vehicle and the deceased was clearly a gratuitous passenger. This plea has been rejected on appreciation of evidence by the Tribunal and I shall not upset the said finding. The learned counsel would still urge that the accident taking place by his own negligence of travelling on top of the truck and succumbed to injuries by hitting against over-hanging branches of the trees and therefore, no compensation will be payble. Even in case where the passenger is allowed to travel on the top of a bus at the instructions of the driver the Hon'ble Supreme Court has held in the case of National Insurance Company Ltd. Vs. Shanti Bai (1995) 2 SCC 539 that the insurer is still liable. In this case if the workman was negligent in his act, he would be entitled to compensation under the Workman Compensation Act against the employer and his insurer. The evidence was that he was earning Rs.2100/- but the Tribunal has made a deduction of Rs.700/- FAO No.5480 of 2005 & FAO No.5663 of 2005 3 for his personal expenses and took the salary to a sum of Rs.1400/- per month. 3. There is also an appeal filed by the representatives of the deceased in FAO No.5663 of 2005 claiming enhancement. In this case the compensation is claimed by a workman who has suffered injuries in the course of his employment. 4. If the status of the workman as such is allowed to be taken as established, the liability of the employer and the insurer will be cast even as per the provisions of the Workman Compensation Act since admittedly the death occurred as a result in his course of employment. Even a claim under the Workman Compensation Act would have been, therefore, maintainable. The insurer would have become liable even in a situation where the workman had been negligent and travelling on the roof of the truck. However, I do not want to re-examine the issue of compensation from the point of view of the application out of the provisions of the Workman Compensation Act, having regard to the expansive definition of the term 'use of the vehicle' that has come about through several decisions. 5. The application for compensation for death of the workman dying in the course of employment is certainly maintainable, if not under the Motor Vehicle Act, under the Workman Compensation Act. This Court is also the Court of appeal under Section 30 of Workman Compensation Act. The insurer would in any event become liable for compensation. The amount payable under FAO No.5480 of 2005 & FAO No.5663 of 2005 4 Workman Compensation Act however, is less than what the Tribunal has assessed. Hence, there is no scope for enhancement. 6. No interference with the judgment is called for. The appeal by the insurer is dismissed and so too, the appeal by the claimants for enhancement. (K.Kannan) 04.10.2010 Judge anil FAO No.5480 of 2005 & FAO No.5663 of 2005 5 IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH FAO No.5663 of 2005 Date of Decision :04.10.2010 Smt.Kamla and Ors. ...........Appellants Versus Gazhia @ Gajender & Ors. ..........Respondents Coram Hon'ble Mr. Justice K.Kannan, Present: None for the appellant. Mr.Tara Chand Dhanwal, Advocate, for respondent Nos.1 & 2. Sh.Neeraj Khanna, Advocate, for Sh.Ravinder Arora, Advocate, for respondent No.3. ************** For detailed order see order passed in FAO No.5480 of 2005 of the even date. (K.Kannan) 04.10.2010 Judge anil