GIRIYA DEVI Vs. HARENDER KUMAR

JUDGEMENT

(1.) Dayanand, son of appellant herein was engaged as a driver on a motor vehicle described as three wheeler scooter (TSR) bearing registration no. DL 1RE 7076. On 26.06.2008, at about 5.00 a.m., he suffered injuries while driving the said TSR, it having met with an accident at Khajuri Pusta road, and died in the consequence. A claim case no. CWC-D/ED/10/08/3656 was instituted by the appellant (she being the mother) and her husband Ganesh Yadav (he being the father), the prayer being for compensation under the Employees' Compensation Act, 1923 on the averments that TSR was owned by the respondent, the second respondent (insurer) also being impleaded in the said proceedings on the plea that there was an insurance contract taken out by the former (first respondent). During the pendency of the inquiry into the said claim case before the Commissioner, Employees' Compensation, Ganesh Yadav (first claimant) died on 05.08.2009. His name stood deleted from the array by order dated 12.10.2011. The claim case was then prosecuted further by the appellant alone.

(2.) The claim case was contested by the first respondent primarily on the ground that he was not the owner of the TSR, the TSR having been given "on contract basis" through some acquaintance. The second respondent (insurer) took the preliminary objection that it was impermissible under the law, and in terms of permit, for a driver to be employed on the TSR, there being violation of the terms and conditions of the insurance policy.

(3.) The claim case was decided by the Commissioner, Employees' Compensation, by judgment dated 09.11.2015, an award of Rs. 8,31,920/- having been granted with interest @ 12 % per annum in favour of the appellant, the interest being leviable from 26.06.2008 till realization. The Commissioner, Employees' Compensation fastened the liability against the first respondent absolving the insurer on the ground that the vehicle had been given on contract to the deceased, the terms of the insurance policy clearly stipulating that there would be no liability against the insurer in respect of "any claim arising out of any contractual liability".