SANGITA Vs. GANESH

JUDGEMENT

(1.) THIS is an appeal filed by the claimants under section 30 of the workmen's Compensation Act (for short called 'the Act') against an award dated 10. 4. 2003 passed by the Commissioner, workmen's Compensation (Labour Court, indore) in W. C. F. No. 20 of 2001. By the impugned award, the Commissioner partly allowed the application made by the claimants under section 10 of the Act and awarded a total compensation of Rs. 3,25,365 for the death of one Prakash. However, while passing an award, the Commissioner fastened the entire liability on R1/na1, i. e. , owner/employer of the deceased and exonerated R2/na2, i. e. , insurance company from the liability. In other words, the application was allowed only against the na1/r1 but was dismissed as against the insurance company, NA2/r2. It is against this partial dismissal as against the insurance company, the claimants have filed this appeal under section 30 ibid. So far as r1/na1 is concerned, though he has suffered the award but has not chosen to challenge the same by filing any appeal. In this view of the matter, the impugned award insofar as it relates to fastening upon the liability on the R1/na1, i. e. , employer/ owner of the offending vehicle is concerned, has become final qua him. The only question, therefore, that remains to be considered in this appeal is whether the commissioner, Workmen's Compensation was justified in exonerating the insurance company, NA2/r2, from the liability?

(2.) FACTS in brief are these: prakash, aged around 25 years was employed as driver of Tempo bearing No. CPU 635. This Tempo was insured with r2 (NA2 ). On 17. 3. 2001 when Prakash was going from a place called Vijay Nagar to a place called Lasudia in Indore town in this Tempo, it met with an accident. It is in this accident, Tempo in question was damaged extensively so also Prakash who sustained injuries. He, however, later succumbed to the injuries. The legal representatives then filed an application before the commissioner, Workmen's Compensation under section 10 of the Act out of which this appeal arises seeking compensation for his (Prakash) death. It was alleged that prakash died during the course of employment as also death occurred arising out of the employment. It was alleged that he was getting Rs. 3,000 by way of monthly salary from his employment and hence applying the proper factor as defined in the act, the compensation should be determined by passing an award in claimant's favour and against both, i. e. , employer of deceased (Prakash), NA1/r1, as also the insurance company, NA2/r2, jointly and severally. The case was contested only by r2, i. e. , insurance company whereas Rl (NA1) remained ex pane. The claimant filed copy of policy (cover note) in support of their case. As observed supra by impugned award, the Commissioner allowed the application and awarded compensation. It was held that the deceased was earning rs. 3,000 per month by way of salary. It was also held that since driver's risk was not covered in the policy in question and hence, insurance company was not liable to indemnify the risk of driver. In this view of the matter, the insurance company was exonerated from liability. It is this award, which is impugned in this appeal. This appeal was admitted for final hearing on following two substantial questions of law:

(3.) HEARD Mr. Sameer Verma, Advocate for the appellants and Mr. V. P. Khare, advocate for respondent No. 2.