HIGH COURT OF UTTARANKHAND AT NAINITAL A.O. NO. 51/2006 Ashok Kumar & another ….. Appellants Vs. Commissioner, Workmen’s Compensation & others …Respondents 16.4.2008 Hon’ble Rajesh Tandon, J. Heard Shri I.P. Kohli, counsel for the appellant and Shri D.S. Patni, counsel for the respondent no. 4 i.e. National Insurance Company Limited. 2. By the present appeal, filed under Section 30 of the Workmen Compensation Act, 1923, the appellants have prayed for setting aside the judgment and award dated 30.11.2005 passed by the Commissioner, Workmen’s Compensation, Tehri Garhwal. 3. Briefly stated, claimants Shri Budhi Singh and Smt. Chhanchari Devi have filed a claim petition for the grant of compensation on account of the death of his son Sri Rajendra Singh in a motor vehicle accident occurred on 12.10.004 at 2.00 PM near Maniya, District Dhaulpur, Rajasthan. Late Shri Rajendra Singh was employed as 2 Cleaner on Tanker No. HR 38-B-0795 and was getting a sum of Rs. 2,000/- per month towards salary. It has been stated that the accident in question had taken place due to rash and negligent driving of the Tanker by its driver. The claimants towards compensation have claimed a sum of Rs. 2,27,710/- along with interest at the rate of 12 per cent. 4. Opposite party Shri Ashok Kumar and Shri Rajendra Singh have filed their written statement stating therein that the deceased was getting Rs. 1,600/- per month as wages. He died in the accident. The truck was insured with the National Insurance Company i.e. the opposite party no. 2 and, therefore, the insurance company is liable to indemnify the compensation. 5. The National Insurance Company i.e. opposite party no. 2 has filed a written statement. It has been submitted that no notice under Section 10 of the Workmen’s Compensation Act has been given to the insurance company. The driver of the truck had no valid driving license at the time of accident and the truck has no valid registration and fitness certificate. 6. The claimants have filed copy of F.I.R., post mortem report and insurance cover note towards documentary evidence. The claimants have examined Budhi Singh as P.W. 1. The opposite parties have not adduced any evidence, either oral or documentary. 3 7. On the pleadings of the parties, the Commissioner, Workmen’s Compensation has framed the following issues:- “1- D;k nq?kZVuk dh frfFk dks e`rd jktsUnz flag nq?kZVukxzLr okgu ij Dyhuj ds :Ik esa fu;ksftr Fkk\ 2- D;k iz’uxr okgu ,p0vkj038 ch@0795 dh nq?kZVuk ds QyLo:Ik jktsUnz flag dh e`R;q gqbZ\ 3- e`R;q ds le; e`rd Dyhuj dh osru o vk;q fdruh Fkh \ 4- D;k oknhx.k foi{khx.k ls {kfriwfrZ ds vf/kdkjh gSa\ ;fn gkWa rks {kfriwfrZ ds Hkqxrku dk nkf;Ro fdldk gS\ 5- nq?kZVuk ds le; okgu o pkyd ds dkxtkr iwjs Fks vFkok ugha rFkk nksuks fLFkfr esa bldk izHkko\ 6- D;k okn izLrqr U;k;ky; ds {ks=kf/kdkj esa gS\ 8. While deciding as to whether the deceased Rajendra Singh was employed as Cleaner on the vehicle in question, the Commissioner, Workmen’s Compensation has taken into consideration the paragraph 1 of the written statement filed by the opposite party no. 1 and has come to the conclusion that the deceased was employed as Cleaner on the said Tanker. 9. While deciding as to whether the deceased Rajendra Singh died due to accident of vehicle no. HR 38 B/0795, the Commissioner, Workmen’s Compensation has taken into consideration paragraph no. 11 of the written statement filed by the opposite party no. 1 and has come to the conclusion that the deceased Rajendra Singh died due to accident taken place by vehicle no. HR 38 B/0795. 4 10. While deciding with regard to salary and age of the deceased, the Commissioner, Workmen’s Compensation has come to the conclusion that the deceased was getting a sum of Rs. 2,000/- per month towards salary and he was aged about 21 years at the time of accident. 11. While deciding with regard to liability to indemnify the claim and further as to whether the documents of the vehicle were in order or not, the Commissioner, Workmen’s Compensation has recorded the finding that the owners of the Tanker have failed to prove that the driver of the Tanker had valid driving licence, the Tanker was overloaded at the time of accident and, as such, the owners of the tanker have violated the terms and conditions of the insurance policy. The Commissioner, Workmen’s Compensation has held that the opposite party no. 1 is liable to indemnify the compensation. Further, the Commissioner, Workmen’s Compensation has selected the relevant factor as 221.71 and calculated the compensation as 50 x 221.71 x 2000/100 = 2,22,710/- and the owners of the Tanker were directed to indemnify the compensation to the claimants. 12. Counsel for the appellants have submitted that there was no overloading or breach of policy and it is an admitted fact that the sitting capacity of the tanker involved in the accident was three i.e. one driver and two cleaners. It has further been submitted that since the vehicle in question was insured with the insurance company, the liability for indemnifying the compensation cannot be imposed on the owners of the Tanker. Counsel for the appellants have 5 further submitted that the Commissioner, Workmen’s Compensation has held the income of the deceased to the extent of Rs. 2,000/- per month on the basis of surmises. 13. On perusal of the record, I find that the copy of the charge sheet, copy of the driving license of the driver of vehicle in question and copy of the registration Certificate of the Tanker No. H.R. 38 B/0795 have been produced as Annexure nos. 1, 2 and 3 respectively along with the application no. 14688 of 2006. On perusal of these documents, I find it a fit case to remand the appeal to the Commissioner, Workmen’s Compensation for deciding the same afresh. Parties have the liberty to lead the evidence in support of their submissions, if they so advised. 14. However, so far as quantum of compensation is concerned, the same is confirmed. However, it is made clear that the amount deposited by the appellants shall be subject to the final award of the Workmen’s Compensation Commissioner. 15. Subject to the aforesaid, appeal is allowed and remanded to the Commissioner, Workmen’s Compensation for deciding afresh in the light of the observations made above. No order as to costs. (Rajesh Tandon, J. ) 16.4.2008 Avneet 6