NATIONAL INSURANCE CO LTD Vs. SMT SITARA BANO

JUDGEMENT

(1.) This Civil Misc. Appeal under Section 30 of the Employee's Compensation Act, 1923 (hereafter 'the Act of 1923') impugns the judgment dated 13.9.2004 passed by the Employee's Compensation Commissioner, Jaipur City (Raj.) (hereafter 'the Commissioner') in Case No. WCC (F) 10/2002 - Smt. Sitara Bano and Ors. v. Faiyyaj Ahmed and Anr., whereby the appellant Insurance Co. (hereafter 'the appellant') has been directed to deposit a sum of Rs. 3,84,280/- payable as compensation to respondents no. 1 to 9, LRs of one Aalam Khan, driver of insured vehicle No RJ 14 T 0788 who died while driving the insured vehicle alongwith interest @ 9% p.a. for the period commencing 13.3.2002 till one month after the date of award i.e. 13.10.2004 and thereafter @ 12% p.a. Further penalty of Rs. 38,428/- has been visited on the appellant for default in payment of compensation to the LRs of the deceased Aalam Khan for 2 1/2 years.

(2.) The facts of the case are that respondent no. 1 Smt. Sitara Bano alongwith her children and mother in law (hereafter 'the claimants') - all of mother and LRs of late Aalam Khan instituted an application no. 10/2002 (hereafter 'the claim application') before the Commissioner for grant of compensation under the provisions of the Act of 1923. The claim was founded on the death of Aalam Khan, driver of the insured vehicle no. RJ 14 T 0788, presumed by resort to Section 108 of the Evidence Act, 1872 for reason of the fact that on 13.2.1995 since carrying passengers on the insured vehicle, a taxi, to Delhi, he was then not heard of over seven years. It was stated that on 11.3.1995 a FIR had been lodged with the jurisdictional police station with regard to Aalam Khan disappearing alongwith the insured taxi carrying passengers to Delhi. And despite investigation in respect thereto, no evidence of the missing Aalam Khan or the insured taxi was found and hence investigation closed. It was submitted that the owner of the insured taxi had lodged a claim with the appellant under the relevant insurance policy for the theft / loss of insured taxi and the said claim came to be settled on 8.1.1996. It was submitted in the facts of the case the husband / father / son of the nine claimants Aalam Khan, by resort to Section 108 of the Evidence Act be presumed to be dead and as his death related to his disappearance at the time of his driving the insured taxi, it be treated an outcome of an accident while driving and compensation of Rs. 4,15,960/- alongwith interest thereon as also penalty under the provisions of the Act of 1923 be granted.

(3.) The owner of the insured taxi one Faiyyaj Ahmed in his reply to the claim petition admitted to the factum of Aalam Khan being employed by him as a driver on the insured taxi and also stated that Aalam Khan had taken certain passengers in the insured taxi to Delhi on 13.2.1995 but had since thereafter not been heard of nor the taxi found. It was Faiyyaj Ahmed's case that Aalam Khan in the facts of the case appears to have been murdered and his taxi stolen. It was also stated as averred by the claimants that the appellant had honoured his claim under the insurance policy and compensated him for the theft of the insured taxi car.