ALOK SHARMA, J. - (1.) This is a Section 30 of the Workman's (now Employee's) Compensation Act, 1923 (hereinafter 'the Act of 1923') appeal. The appellant-Insurance Company is aggrieved by the judgment dated 30.04.2004, passed by the Workman's (now Employee's) Compensation Commissioner, Dholpur (hereinafter 'the Commissioner') where under the respondents-claimants Nos.1 to 4 (hereinafter 'the claimants') have been awarded a sum of Rs. 2,62,158/- along with interest @ 12% p.a. from the date of accident i.e. 16.04.2003 till the date of payment for the death of one Munni alleged to be an employee of Lembar Singh, respondent-owner of the insured tractor No.UP-82/B1580 insured with the appellant-Insurance Company.
(2.) The case of the appellant-Insurance Company is that it could not have been held liable to pay the aforesaid compensation for the reason that the deceased Munni was admittedly not the driver of the tractor insured with it. Counsel submitted that in terms of insurance policy dated 21.09.2002 (Ex-NA/1) issued in favour of Lembar Singh, owner of the tractor, the sitting capacity of the tractor was zero. Counsel also drew the attention of this Court to Ex-5 which was the registration certificate of the tractor insured. Thereunder also the column of sitting capacity was left out blank indicating that the tractor had no sitting capacity. Counsel submitted that in this view of the matter, the deceased Munni even if a helper as alleged on the tractor in issue at the time of accident of 16.04.2003 was not its liability to cover under the Act of 1923 in the event of dying in a mishap assuming the involvement of the tractor. It was further submitted that no premium for covering the risk of any employee other than driver was taken by the appellant-Insurance Company from the insured-owner, Lembar Singh. Counsel submitted that in the facts obtaining, the following questions of law arise for the consideration of this Court in this appeal: (i) Whether the learned Commissioner misdirected himself on the evidence on the record and did not appreciate the evidence legally, properly and in accordance with law, and came to a perverse finding that the risk of any other person in addition to the driver was covered under the policy?
(3.) Mr. Abhi Goyal, appearing for the owner of the tractor No.UP-82/B1580 insured with the appellant-Insurance Company, submitted that the insurance policy dated 21.09.2002 (Ex-NA/1) provided that it covered the risk of an employee under workmen's Compensation Act, 1923. It was submitted that the employee of the insured would also include a helper / assistant on the tractor as the deceased Munni was. He however hastened to submit that it was denied before the Commissioner that the deceased Munni was an employee of the insured Lebmar Singh and therefore one way or the other the insured-owner Lembar Singh was not liable to pay compensation for the death of Munni. Further, alternatively in the event of the insured being liable, the liability was to be discharged by the appellant-Insurance Company as the insurer of the tractor No.UP-82/B1580 at the time relevant to the accident of 16.04.2003.;