Court No. - 3
Case :- FIRST APPEAL FROM ORDER No. - 2648 of 2004 Appellant :- New India Insurance Company Limited Respondent :- Tasleem And Another Counsel for Appellant :- Rahul Sahai Counsel for Respondent :- Nigmendra Shukla
Hon'ble Dr. Kaushal Jayendra Thaker,J.
1. Heard Sri Rahul Sahai, learned counsel for appellant and Sri Nigmendra Shukla, learned counsel for respondent.
2. This First Appeal From Order has been filed under section 30(1)(aa) of Workmen's Compensation Act, 1923 (hereinafter referred to 'Act, 1923') by New India Insurance Company Ltd.- appellant, being aggrieved by award dated 9.8.2004 passed by Workmen Compensation Commissioner and Assistant Labour Commissioner, Meerut in Workmen's Compensation Application No.276 of 2003.
3. It is submitted that the mother could not have been the employer. The Commissioner has held that the claimant was a cleaner on the truck which was owned by his mother driven by his father and this is question of fact. It is submitted by Sri Rahul Sahai that a mother could not have employed her son and therefore there is a perversity in the finding recorded by the Tribunal that the injured was a workman. As against this Sri Nigmendra Shukla, learned counsel for respondent has submitted that it has been proved by cogent evidence that the injured was in employment and was working with his father on the said truck and that he was covered by the Insurance policy therefore the contention that he was not a labourer and that a son cannot work for his mother, cannot be sustained. As against this Sri Nigmendra Shukla, learned counsel for respondent has heavily relied on the decision of Supreme Court and this High Court in T.S. Shylaja Versus Oriental Insurance Company Limited and another, (2014) 2 SCC 587 and First Appeal From Order No. 1861 of 2009 ( M/s ICICI Lombard General Insurance Company Limited Versus Smt. Sanju Pal and others) decided by this High Court on 23.10.2017.
4. Sri Rahul Sahai, learned counsel for appellant has relied on the decision of Supreme Court in Gottumukkala Appala Narasimha Raju and others Versus National Insurance Company Limited and others and has contended that the finding of Tribunal is bad in eye of law and cannot be sustained and it is submitted that they are not liable as the deceased cannot be said to be a workman as he had not proved by any cogent reasons, the contract of employment.
5. This is a question of fact that which cannot be agitated in an appeal under Section 30 of the Act.
6. The insurance company has not come up against the quantum and has challenged the relation between the deceased and owner of the vehicle. The decisions cited by counsel for the appellant cannot be applied as the father and son are the driver and helper. The father has deposed on oath that he is driver of the vehicle. The vehicle is registered in the name of his wife (Naseem Bano) and he states that his son did not stay with them and has been employed. The Insurance Company has also paid the own damage claim and in this case the insurance company unfortunately has not examined any person so as to bring home their contention that the deceased was not an employee of the insured. In absence of any evidence in rebuttal can it be said that the insured not was in the vehicle even if we consider the case of injury. He was in the vehicle. The question of law framed by the Division Bench on 111.10.2004 is no longer res intigra in view of the order of undersigned in First Appeal From Order No.1343 of 2002 (The New India Assurance Company Limited Versus Smt. Suman Mishra and others) decided on 15.3.2019 and the judgment in the case of North East Karnataka Road Transport Corporation Vs. Smt. Sujatha, AIR 2018 SC 5593 will apply to the facts of this case. Hence the question of law framed by this Court is also answered against the appellant.
7. It is rightly pointed out by Sri Nigmendra Shukla, counsel for claimant that the rate of interest has to be 12% rate of interest from the date the amount became due as it would be the statutory rate of interest as per the Act. Hence, grant of 10% rate of interest by the Commissioner requires to be disturbed so as to grant just compensation. The Insurance Company shall deposit the difference of interest within 12 weeks from today.
8. The appeal sans merit and is dismissed. The oral cross objections raised by the counsel for claimant is allowed.
Order Date :- 30.4.2019/Mukesh