ORIENTAL INSURANCE COMPANY LTD. Vs. SHANKAR

JUDGEMENT

(1.) The Insurance Company has appealed against the judgment of the Workmen Compensation Commissioner under the Workmen's Compensation Act (hereinafter Commissioner) allowing the claim of the appellants claiming compensation for the death of Raj Kumar. The Commissioner awarded a sum of Rs. 3,32,055/- along with interest @ 12% per annum to be paid from 27.9.2002 to 29.3.2005 by the employer. The claim petition avers that late Raj Kumar was the son of the first two applicants, namely, Shankar and Berfi and brother of Ravi, who is the third claimant. He was employed by Hakam Singh as a driver who, on 26.9.2002 sent him alongwith passengers in Jeep No. DL-7 CA-8979 to Jaipur in Rajasthan. He received grievous injuries in the accident arising out of and in the course of the employment which resulted in his death. It was pleaded that Raj Kumar had died when he met with an accident in the Jeep which he was employed to drive. His monthly wages were pleaded to be Rs. 4,000/- and his age as 22 years. A claim of Rs. 5,00,000/- in all was instituted. These pleadings were denied by the employer Sh. Hakam Singh, who pleaded that the deceased died because he was murdered and not during the course of his employment as pleaded. It was stated that some "miscreants" committed this murder when Jeep No. DL-7 CA-8979 was stolen and F.I.R. No. 453 dated 27.9.2002 was lodged by the respondent owner. The relationship of employer and employee is admitted. It was denied that the deceased had been sent to Rajasthan by his employer with some passengers. There was no accident as pleaded. The vehicle in question was the personal vehicle of the 1st respondent which was never used for any commercial purpose whatsoever. It was pleaded that the deceased used to spend the night at Vasundhara taxi-stand since he did not have any accommodation to live in. On the night of 25th September, 2002 when the deceased was sleeping there, some 'miscreants' contacted him and engaged him to drop them at Jaipur where he was supposed to remain for three days. No permission etc. was granted by the respondent to carry any passengers. The Insurance Company took the usual pleas of denying its liability in toto.

(2.) The Commissioner, on consideration of the entire evidence, allowed the claim holding that the deceased was a workman within the meaning of the Act. The second settled issue was as to whether the deceased was authorized or asked by the employer to use the vehicle in the manner as pleaded. No permission was sought for to ply the vehicle in the manner as pleaded and it was an act committed by the deceased of his own volition and without the consent of the employer. The Commissioner relying upon the judgment of the High Court of Kerla in United India Insurance Company Ltd. v. Philo, 1997 1 LLJ 76 held that the killing of a workman during the course of the employment by an unknown person can be considered as death and proceeded to award the compensation. Insurance Company is now in appeal.

(3.) Learned Counsel appearing for the Company relies upon the decision of the Supreme Court in Shakuntla Chandrakant Shreshti v. Prabhakar Maruti Garvali and another, 2007 ACJ 1967 to urge that the death was not the result of the normal consequence of employment and in these circumstances, no claim could be allowed. In particular, he relies upon the decision of the Supreme Court holding: