Court No. - 24
Case :- FIRST APPEAL FROM ORDER No. - 439 of 2010 Appellant :- The New India Assurance Company Ltd.
Respondent :- Smt. Poonam And Others Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- Devendra Saini,Ankit Saran
Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the parties.
2. The present appeal arises out of judgment and order passed by Commissioner, Saharanpur, under the Workmen Compensation Act, 1923, whereby the Commissioner has awarded Rs.4,11,900/- as compensation to the respondent.
3. It is alleged that one Ravindra Kumar was employed as driver on Maruti Car No. DL 8C 3189 and was getting salary of Rs.4000/- per month. It is further alleged that on 27th January, 2009, Ravindra Kumar was driving the maruti car on the instructions of owner and about 11.30 P.M. he met with an accident with tractor, in the said accident Ravindra Kumar suffered injuries and died. Claimant- respondents instituted a claim petition praying for a compensation for the death of Ravindra Kumar.
4. The claim petition was contested by the owner, who supported the case of the claimant and admitted the accident.
5. The insurance company filed a statement denying its liability to paying compensation.
6. The learned counsel for the appellant has urged that the maruti car was used at the time of accident in breach of insurance policy, inasmuch as, maruti car was insured for the purpose of private vehicle whereas it was used at the time of accident as commercial vehicle. To support the aforesaid contention, learned counsel for the appellant has submitted that the wife of deceased before the Commissioner in the cross-examination by the insurance company has stated that his husband was on duty on the fateful day on the booking of the maruti car. Relying upon this piece of statement, learned counsel for the appellant submitted that it is the case of the claimant that the vehicle was used for hire and as such it was breach of the policy and even if the insurance company has not set up the specific case that the ill fated vehicle was used at the time of accident as taxi, facts from record established that the owner had committed breach of policy as the maruti car was used for commercial purpose.
7. I have heard learned counsel for the parties.
8. The Insurance Company in the written statement enclosed as Annexure-2 has made averments in the paragraphs 13 and 14 with regard to policy which reads as under :-
^^13. ;g fd nq/kZVuk eas fyIr okgu vxj chek ikfylh dh 'krkZs ds foifjr lapkfyr fd;k tk jgk Fkk rks ,slh fLFkfr eas foi{kh mRrjnkrk dks dksbZk nkf;Ro {kfriwfr vnk djuxs dk mRrjnkf;Ro foi{kh la[;k &1 okgu Lokeh dk gksxk vkSj okn foi{kh la[;k &2 chek dEiuh ds fo:) [kf.Mr gksus ;ksX; gSA^^ ^^14. ;g fd chek vf/kfu;e dh /kkjk 64 oh0 oh0 dk vuqikyu gksuk vfr vko';d gSA fcuk vuqikyu gq, foi{kh mRrjnkrk dk dksbZ {kfriwfrZ vnk djus dk ugh gSA^^
9. Besides the above, there is no specific pleadings in the written statement that the maruti car was used on hire as taxi. The owner of the maruti car had appeared before the Commissioner and stated that the maruti car was used for private purpose and it was not used as taxi at the time of accident. The insurance company did not give any evidence to rebut the testimony of owner of the maruti car. Further the testimony of the wife of the deceased cannot be relied upon inasmuch as, it can only be said to be hearsay evidence, as the wife of the deceased did not have any personal knowledge about the fact that the maruti car was being used as taxi.
10. Thus, in the fact of the present case, and in the absence of the any specific case by the insurance company that the vehicle was used for commercial purpose at the time of accident, the finding of the tribunal is a finding of the fact.
11. The appeal is under Section 30 of Employees Compensation Act, 1923, which can only be filed on the substantive question of law. In the instant case, no substantial question arises which needs to be answered by this Court.
12. For the reasons given above, this appeal lacks merit and is, accordingly, dismissed.
Order Date :- 17.9.2018 Ashutosh Pandey