NATIONAL INSURANCE CO.LTD. Vs. ANITA AND OTHERS

JUDGEMENT

(1.) This appeal, preferred under Section 30 of Workmen's Compensation Act, 1923 (hereinafter referred to as the Act) is directed against the judgment and award dated 20.09.2007 passed by the Workmen Compensation Commissioner/ Deputy Labour Commissioner, Haldwani, Nainital in Workman Compensation Case (for brevity W.C.C.) No. 75 of 2002, whereby the amount of Rs. 2,75,401/- is awarded in favour of the claimant/respondent No. 1.

(2.) Brief facts of the case are that an application was moved by the claimant-Smt. Anita (present respondent No. 1) widow of the deceased before the Commissioner, Workmen Compensation, alleging that her husband late Rajkumar was employed as driver in the establishment of M/s Vishwakarma Paper & Boarders Ltd., Kashipur, District Udham Singh Nagar. While performing his duties he died on 05.08.2002. Late Rajkumar was getting a sum of Rs. 4,500/- per month as his salary and at the time of death he was aged about 32 years. It was further alleged in the application that Rajkumar died while he was under the employment of respondent Nos. 2 & 3. As the respondents 2 and 3 did not pay compensation for the untimely death of her husband, therefore widow of the deceased moved application for awarding compensation to the tune of Rs. 7 lacs with interest as well as penalty. A W.C.A. Case No. 75 of 2002 was registered and the respondents 2 and 3 were summoned. Lateron appellant was also impleaded as defendant No. 3. The respondent Nos. 2 & 3 filed one written statement dated 24.03.2003 in which the factum of employment given by them was not denied, rather it was asserted that the concerned vehicle was duly insured with M/s National Insurance Company Ltd., Kashipur and deceased workman was also insured with the vehicle under the Act and the liability, if any, is upon the Insurance Company/appellant. The respondent Nos. 2 & 3 further stated that the cause/time of death of the deceased can be verified only after the observation of the medical report but no such report was annexed with the claim petition. These respondents further stated that the salary of the deceased was Rs. 2,702/- per month and as per the record of the factory, the deceased had completed 33 years 5 months 4 days at the time of his death. Respondent Nos. 2 and 3 further stated that on 05.08.2002, the deceased was absent from duty. The respondent Nos. 2 & 3 also filed another written statement on 18.01.2005 and stated that the deceased was in their employment in the capacity of workman (unskilled) from 01.11.2000 to 05.08.2002 and expired during the course of medical treatment in Civil Hospital, (U.S. Nagar) on 05.08.2002. In this written statement, it has also been pleaded that deceased workman was in their employment on 05.08.2002. It has been further stated that respondent Nos. 2 & 3 have given cover to their employees by adopting the group policy for the workmen. It was declined that being a driver, the deceased workman was not covered under the group policy. It was further stated in the written statement that the deceased was insured alongwith other employees, and the Insurance Company will alone be liable for payment of compensation, if any, to the applicant as per the Act, as concerned W.C. Policy was renewed up-to-date and premium was also duly paid.

(3.) The appellant/defendant No. 3 (National Insurance Company Ltd.) also filed written statement with the averments that the deceased was not a workman and he was not insured under Workmen Compensation Act, 1923. It has been stated that the case of the claimant is not covered under the policy of Motor Vehicle Act, 1988 because the accident of motor vehicle did not occur during the course of employment and the deceased was not a workman. Since particulars of insurance policy of deceased was not disclosed in the claim petition, in the absence of documentary evidence the claimant is not entitled to any compensation from the Insurance Company. It has been further stated that the claimant has to submit verified copy of the medical report of Govt. Hospital, Kashipur and memo of Kotwali Kashipur about suspected poisoning case. No accident was occurred and the case is suspected poisoning case. The Insurance Company will not indemnify to the insured, because the deceased was not insured. The claim petition is not maintainable under the terms and conditions of the policy.