FAO No.2314 of 2002 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2314 of 2002 Date of Decision.13.07.2010 New India Assurance Co. Ltd., through its Regional Manager, Sector 17-A, Chandigarh .........Appellant Versus Sewa Singh s/o Sh. Joginder Singh and another .......Respondents Present: Mr. Rahul Garg, Advocate for Mr. Ashwani Talwar, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The appeal is by the insurance company for amputation suffered by the driver of the insured's vehicle in the motor accident. The plea of the insurer was that the insured had committed a violation of terms of policy, in that despite a requirement of the owner/employer that he should keep accounts and allow for inspection of the records, the employer did not give access to any record to show that the driver had been employed. It was his further contention that the insurer had applied to the Commissioner for verification of the details of the driving licence but no order had been passed. According to learned counsel appearing for the FAO No.2314 of 2002 -2- insurance company there had been no proof of employer employee relationship. 2. I find every one of the contentions raised to be frivolous. The claim was at the instance of a person, who was admittedly driving the vehicle at the time of accident. The Workmen's Compensation Act that requires the proof of workman's status includes even a person employed on a casual basis. The degree of proof that is necessary for a person, who was actually on the job is indeed minimal and the fact that the injury occurred in a motor accident when he was driving was itself proof of the status of the claimant as a workman. The non-production of records for inspection in a case where the circumstance spoke for itself about the status of the claimant as a workman was no breach in the eye of law to cause an exclusion of liability for the insurer. 3. The contention that the driver did not have a valid driving licence is equally meaningless. If an insurance company could exclude the liability for a breach of term of contract, the burden shall be only on the insurer. A mere application before the Commissioner seeking for permission to secure the records from the transport authority for verification cannot be said to be sufficient to discharge the onus of proof. In a case where the employer has stayed away from the trial without letting in any evidence, it was imperative that the insurer serves a notice on the employer/owner calling upon him to cause a production of the driving licence of the driver. No such attempt was made by the insurer. The plea of want of driving licence also remains unsubstantiated. FAO No.2314 of 2002 -3- 4. For an amputation, which was assessed as resulting in permanent disability and assessed at 100% loss of earning capacity, the Commissioner has taken 50% of the salary and applied the appropriate factor commensurate with the age of the workman, which was taken to be 30 and arrived at an amount of Rs.1,03,990/- as the amount payable. The determination of liability is in conformity with law and there is no reason to set aside the award. 5. There exists no substantial question of law in the appeal and every one of the aspects considered by the Commissioner relating to the status of the claimant and the liability of the insurer are pure questions of fact, which have been considered appropriately. 6. The appeal is, therefore, dismissed. (K. KANNAN) JUDGE July 13, 2010 Pankaj*