JAIN, J. - (1.) THIS appeal has been filed against the order of the Workmen's Compensation Commissioner, Bhilwara dated April 12, 1989 by which he has granted Rs. 87,980/- as compensation and Rs. 8,798/- as penalty, interest and costs, total Rs. 96,778/ -. The facts of the case giving rise to this appeal may be summarised thus.
(2.) KHAKLA (wheat fooder) was loaded in the Truck No. RSE 3693 for being transported from Kota to Keria Keda (Bhilwara ). The truck belonged to Mohd. Farooq non-petitioner-respondent No. 6 and was insured with the Oriental Insurance Company Ltd. (appellant ). On the way, the truck came in contact with an electric wire and KHAKLA caught fire. The case of the petitioner-respondents is that the truck was being driven by the deceased Talim Hussain at the time of the accident, he was in the employment of Mohd. Farooq (owner of the truck) as a driver on monthly salary of Rs. 1,200/- besides other allowances, in the said fire he died and the petitioner respondents are his father, mother, brothers and sister and they were dependent upon him. The case of the owner and insurer of the truck is that the deceased was not in the employment of the owner of the truck, the truck-owner left it for a while at Mandal crossing, he went to his village Baneda and in his absence the deceased Talim Hussain drove away the truck. After framing necessary issues and recording the evidence of the parties, the Workmen's Compensation Commissioner passed the said order. It is contended by the learned counsel for the appellant that the said award has been passed without any pleading and evidence on record, the petitioners were not dependent either wholly or partly upon the deceased, the deceased drove the truck without the permission of its owner Mohd. Farooq, the liability of the Insurance Company is limited under Section 95 (1) (c) of the Motor Vehicles Act, 1939 (hereinafter called 'the Act') and award can only be passed against the Insurance Company if the owner has become insolvent and the Insurance Company is not liable to pay the amount of penalty. The learned counsel for the claimant-respondents duly supported the order under challenge. The first question for consideration is whether the deceased Talim Hussain was in the employment of the owner of the truck Mohd. Farooq. Sahabnoor P. W. 1 and Gyasuddin P. W. 2 have deposed that their son was in the employment of Mohd. Farooq as a driver of his truck. Mohd. Farooq D. W. I has denied this fact. He has deposed that he stopped his truck at Mandal crossing, he himself left for Baneda, after some time there he learnt that his truck had been taken away by the deceased Talim Hussain and it has caught fire. He further stated that he took it without his permission. Admittedly, he did not lodged any report in the Police Station against Talim Hussain. It is not clear how the deceased Talim Hussain obtained the key of the truck. It is, therefore, every difficult to believe the statement of Mohd. Farooq D. W. 1 when he says the deceased was not in his employment as a driver. The Workmens' Compensation Commissioner has rightly held that the deceased Talim Hussain was in the employment of the owner of the said truck. There is no force in the contention of the learned counsel for the appellant that the deceased Talim Hussain was not having any driving licence. A photostat copy, paper No. 26-27, of the driving licence of Talim Hussain has been filed by the petitioners. Sahabnoor P. W. 1 has stated that her son was driving the vehicle for last 5 years. His father Gyasuddin has deposed that his son was having driving licence since 1982. The owner of the truck Mohd. Farooq D. W. 1 has deposed that the deceased Talim Hussain used to drive vehicle as a substitute driver. In the cross-examination, he disclosed that the appellant Insurance Company paid him amount of compensation after ascertaining the particulars of the driving licence of the deceased Talim Hussain. Thus it is well proved from the material on record that the deceased was having a driving licence.
(3.) THERE is no force in the contention of the learned counsel for the appellant-Insurance Company that the Insurance Company would be liable if the insured Mohd. Farooq becomes insolvent as provided in Section 14 of the Act. Section 14 of the Act does not provide so. According to it, the insurer would be liable to pay the entire amount if the insured becomes insolvent. Rule 41, Workmen's Compensation Rules, 1924 runs as under : - "41. Certain provisions of Code of Civil Procedure, 1908 to apply - Save as otherwise expressly provided an the Act or these rules, the following provisions of the First Schedule to the Code of Civil Procedure, 1908, namely, those contained in Order V, Rules 9 to 13 and 15 to 30, Order IX, Order XIII, Rules 3 to 10, Order XVI Rules 2 to 21; Order XVII and Order XXIII, Rules 1 and 2, shall apply to proceedings before Commissioners, in so far fas they may be applicable thereto. " It is clear from the above quoted provisions that Orders VI, VII and VIII of the Code of Civil Procedure have not been made applicable. The proceedings under the Act cannot be treated as proceedings of a regular suit in which the parties are held to be limited to the allegations contained in the pleadings. It is not in dispute that the deceased Talim Hussain was the son of the petitioner No. l Gyasuddin and petitioner No. 2 Sahabnoor (wife of Gyasuddin) and brother of the petitioner No. 3 Pappu, petitioner No. 4 Munna and Petitioner No. 5 Semuna. The deceased's mother Sahabnoor P. W. 1 has deposed that her son Talim Hussain was getting Rs. 1,200/- per month as salary, every month he used to give the entire amount of salary to her and there was no source of their livelihood except the income of Talim Hussain. Similar is the statement of Gyasuddin P. W. 2, father of the deceased. Nothing damaging could be elicited out in their cross- examination. The owner of the truck Mohd. Farooq has not said anything about the income of the deceased Talim Hussain and the dependency of his parents, brothers and sister on his income. It is thus well proved that the petitioners were dependent upon the deceased Talim Hussain within the meaning of Section 2 (d) of the Act. It is clear from the provisions of Section 95 (2) (a) of the Motor Vehicles Act that the liability of the Insurance Company was to the extent of Rs. 1,50,000/- as admittedly the accident took place on May 6,1986. The amount of compensation awarded is below this limit. As such the appellant Insurance Company is liable to pay the entire amount of compensation and interest. ;