NEW INDIA INSURANCE COMPANY LIMITED Vs. SUMITRA DEVI

JUDGEMENT

(1.) This is an appeal by the Insurance Company challenging the order dated 4.4.2012 passed by the Commissioner Workmen's Compensation and Assistant Labour Commissioner, Allahabad. The appellant is an insurer of Tanker No. U.P.-65 H/2365.

(2.) The brief facts of the case are that deceased Kunj Bihari was the driver of Tanker N0. U.P.-65 H/2365. On 17.1.2011 when he was going from Etawah to Auraiya at Bakewar, near Bharthana Chouraha Highway, Police Station Bakewar at 7 O' clock some bad elements tried to loot the tanker and on the resistance by the driver, he was shot dead and Khalasi Balwant Singh was injured by knife. The deceased Kunj Bihari was admitted in the hospital of Etawah and during treatment, on the same day, he died. Smt. Sumitra Devi, wife of the deceased, filed claim petition under the Workmen's Compensation Act (hereinafter referred to as the "Act") claiming that the age of her husband was 45 years and he was getting Rs.7,000/- per month towards salary and Rs.100/- towards khoraki. The claim was made for Rs.11,86,080/-. In the claim petition, the owner of the vehicle Sri Anil Gupta and the appellant were made party. In the written statement, though the averments made in the claim petition have been denied, but in paragraph-17 it was stated that the deceased was the driver of the vehicle and had the driving licence no. K- 2898/A/78 and K-398/C/A/07 dated 26.6.2007 which was valid on the date of accident. The respondent no. 1 filed registration certificate, insurance policy note, permit, fitness certificate, driving licence, etc. The claimant filed copies of the postmortem report, site plan, chargesheet and First Information Report. Sri Ram Kishan independent witness was also produced. In the written statement, respondent no. 2 denied the averments made in the claim petition.

(3.) The Commissioner on the basis of the evidence has accepted the claim of the claimant that deceased Kunj Bihari was the driver of vehicle No. U.P.-65 H/2365 and was the employee of respondent no. 2. It has also been held that the deceased had the valid licence for the period 24.8.2007 to 6.9.2010 and further for the period 26.8.2010 to 6.9.2011. It has been held that Kunj Bihari died in the course of employment. However, in the absence of any cogent and reliable evidence relating to the salary of Rs.7,000/-, the minimum wages at Rs.4,998.03 p. of a driver of a private vehicle has been adopted. Since in the postmortem report, the age of the deceased was shown at 50 years, the same has been adopted and accordingly compensation has been assessed at Rs.3,82,572/-. Since the vehicle was insured, the appellant was directed to pay the amount of compensation.