V.K. Bist, J. -
(1.) THIS appeal, preferred under Section 30 of Workmen's Compensation Act, 1923 (hereinafter referred to as the Act) is directed against the judgment and award dated 24.09.2008 passed by the Workmen Compensation Commissioner, Tehri Garhwal, New Tehri (for brevity WCC) in Workman Compensation Case No. 14 of 2006, whereby the amount of Rs. 3,40,452/ - is awarded in favour of the claimants/respondent Nos. 1 to 4 and the liability of payment of compensation was fastened upon respondent No. 5 (owner of the vehicle) through the appellant (being the insurer of the vehicle). Brief facts of the case are that an application was moved by the claimants (respondent Nos. 1 to 4) before the WCC, alleging that son of claimant No. 1, namely, Baldeo Singh was employed as driver of vehicle Truck No. U.P. -08 -0744 and the respondent No. 5 was the owner of said vehicle. While performing his duties as such, on 23/24.02.2006 the said vehicle met with an accident at Kotigar Tok in Chamba -Dharasu motorway resulting the death of Baldeo Singh. Late Baldeo Singh was getting a sum of Rs. 5,000/ - per month as his salary and at the time of death he was aged about 24 years. Information was given to police station Chamba and postmortem of the body was conducted at combined hospital Bauradi, New Tehri. Owner of the vehicle also came to know about the accident. The owner of the vehicle declined to pay compensation for the untimely death of Baldeo Singh saying that his Truck was insured, therefore the claimants moved application for awarding compensation to the tune of Rs. 5,46,175/ - with interest @ 18 per cent from the date of filing the claim petition. A.W.C.A. Case No. 14 of 2006 was registered and the owner and the insurance company of the vehicle in question were summoned. Respondent No. 5/owner of the vehicle filed his written statement with the averments that the deceased was employed as driver in his Truck on the date, time and place. He declined that the deceased was being paid Rs. 5,000/ - rather submitted that the deceased was employed on daily wage on Rs. 60/ - per day. It was asserted that his Truck was duly insured with M/s. National Insurance Company Ltd., Chamba and at the time of the incident the Truck was having valid registration, fitness, permit and insurance, inasmuch as, the driver was having valid licence, therefore the liability, if any, is upon the Insurance Company/appellant. The insurance company/appellant also filed its written statement, in which the insurance company took plea that employment and salary of the deceased is not proved; demand of compensation has been exaggerated that too without any basis; there is no proof of the age of deceased as the claimants did not produce the injury report, postmortem and the details of insurance; no notice was given under Section 10 of the Act and the owner of the vehicle has violated the conditions contained in the policy, therefore the insurance company is not liable to pay the compensation awarded by the WCC. In support of their assertions the claimants and the owner of the Truck filed oral and documentary evidence before the WCC, however the insurance company filed no evidence, in any form. Upon hearing the parties, the WCC passed order dated 24.09.2008 whereby an amount of Rs. 3,40,452/ - was awarded in favour of the claimants/respondent Nos. 1 to 4 and the liability of payment of compensation was fastened upon the insurance company/appellant. The WCC held out that on the fateful date, time and accident, the deceased was employed in the vehicle in question owned by respondent No. 5, and he died, while performing his duties, in said accident on account of grievous injuries inflicted in his body; at the time of his death, the deceased was 28 years of age and was receiving a sum of Rs. 3,215/ - per month; the owner of the vehicle was having valid permit, fitness and insurance; although the driving licence was not renewed, however the insurance company did not produce any evidence supporting their version, the WCC held out that the driving licence was of the year 1997, which is sufficient to prove that the driver was plying vehicles quite long earlier and based upon substantially supported auxiliary evidence, the WCC passed the order dated 24.09.2008 which is impugned in the instant appeal.
(2.) I have heard Mr. Lalit Belwal, Advocate for the appellant, Mr. Pooran Singh Rawat and Ms. Joyce Irwin, Advocates for the claimants/respondent Nos. 1 to 4 and perused the record. Mr. Lalit Belwal, learned counsel for the appellant argued that the insurance company should be exonerated from paying any amount of compensation and interest thereon, as the driver of the offending Truck was not holding a valid and legal driving licence on the date of accident, whilst liability of paying compensation should be fastened upon the owner of the Truck that too for permitting a driver having no legal driving licence to drive his Truck on the date of accident. He contended that on one hand, the owner of the Truck admits that he kept the driver on duty on 22.02.2006 after having seen his driving licence, however the driving licence had been expired much before the date of accident, and in such view of the matter, the insurance company cannot be held liable to pay any amount of compensation. He further submits that the WCC has committed manifest error of law in reaching to the conclusion that the insurance company did not produce any evidence, irrespective of the availability of Form -54, issued under the provisions of Motor Vehicle Act, 1988, which is sufficient proof, and without being challenged its sanctity or prove otherwise the same should have been relied upon in its entirety and based on such findings, the judgment of the WCC is liable to be set -aside. Learned counsel for the appellant contended that driving licence remains valid only for 30 days from the date the driving licence expires, as such the deceased was not having a valid driving licence on the date of accident. Coupled with the fact that the owner of the Truck permitted a driver having no valid driving licence to drive a vehicle on the date of appointment and the accident as well, the insurance company cannot be held liable to pay the awarded compensation. He further submitted that the deceased cannot be said to be 'workman' of the owner on the Truck in existence of the averments made in the written statement by the owner in which he has asserted that the deceased was a daily wager appointed on payment of Rs. 60/ - per day. He submitted that the claimants cannot be said to be the dependants of the deceased. He contends that the WCC has awarded compensation on higher income. He contended that the WCC has committed error of law in not taking into account the fact that until and unless the driving licence is produced, no presumption can be drawn that the driver was having a valid driving licence on the date of accident. Learned counsel for the appellant by relying on the judgment of Apex Court, reported in : (2009) 5 SCC 136,, (2008) 17 SCC 208, : AIR 2007 SC 1445 and, 2008 AIR SCW 6512 submitted that since the driving licence of the driver of the vehicle expired much before the accident, the appellant cannot be asked to pay compensation to the claimants and recover from the owner. Liability of making payment, if any, is of the owner of the vehicle.
(3.) ON the other hand, learned counsel appearing for the respondents rescinded the entire submissions advanced by the learned counsel for the appellant and submitted that the finding of the WCC is based upon the evidence on record, as the claimants have amply proved their claim petition before the WCC by adducing oral as well as documentary evidence, which is cogent and unshaken, however the appellant has failed to produce any evidence in any form. He submitted that instant appeal is not maintainable on account of finding of fact is based on evidence on record. Learned counsel for respondents referred : AIR 2007 SC 1445 : [2007 ALL SCR 2335] 'Ishwar Chandra and ors. vs. The Oriental Insurance Co. Ltd.', : (2008) 7 SCC 416: [2008 (2) ALL MR 757 (S.C.)] 'The New India Insurance Co. vs. Darshana Devi and ors.' and : 2008 (3) SCALE 570 : [2008 ALL SCR 639] 'Sardari & others vs. Sushil Kumar and others' and submitted that there is no illegality in the order of WCC in fixing liability on the owner of the vehicle through the appellant.;