Oriental Insurance Company Ltd. Vs Tara Devi

( 2025:HHC:41148 )

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 4091 of 2013 Reserved on: 27.11.2025 Date of decision: 02.12.2025

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________________________________________________ Oriental Insurance Co. Ltd. .....Appellant Versus Tara Devi & Ors. …..Respondents
________________________________________________ Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 _Whether approved for reporting? _
For the appellant: Mr. Deepak Gupta, Advocate.
For the respondents: Mr. Neeraj Gupta, Senior Advocate with Ms. Rinki Kashmiri, Advocate, for respondents No. 1, 2, 4(i) to 4(iii).
Name of respondent No. 3 stands deleted.

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Sushil Kukreja, Judge

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The instant appeal has been preferred by the appellant, who was respondent No. 2 before the learned Court below against award dated 15.06.2013, passed by learned Commissioner, Employee’s Compensation, LahaulSpiti at Kullu, H.P., (hereinafter referred to as “the learned Commissioner below”), in Case No. 22 of 2011 (5 of 2008), whereby the application filed by the applicants/claimants (respondents herein) under Section 22 of the Employee’s Compensation Act (hereinafter referred to as “the Act”) was

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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allowed and an amount of Rs. 2,44,605/- alongwith interest at the rate of 6% per annum was awarded in favour of the applicants, which was ordered to be paid by respondent No. 2/Insurance Company, from the date of filing of the application till its realization. The amount of compensation was apportioned amongst applicants, i.e. widow, daughter and mother to the extent of 50:25:25 each.

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The brief facts of the case are that Bhagat Singh (since deceased) was employed by respondent No. 1, Devi Singh Thakur, as driver in his vehicle bearing registration No. HP-34-A-1504. On 31.03.2006, around 12:30 A.M., at Tunga Dhar, Phati Jallugran, the aforesaid vehicle met with an accident, in which, Bhagat Singh sustained serious injuries and on the same day he succumbed to the injuries. As per the applicants, the deceased was employed with respondent No. 1, as driver, since 2004 in his vehicle on a salary of Rs. 3,000/- per month. Besides above, respondent No. 1 also used to pay Rs. 50/-, as diet money, to the deceased. As per the applicants, the deceased had died in an accident during the course of his employment with respondent No. 1. The deceased was 47 years of age and he also used to work in

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the fields at home and also used to earn about Rs. 4,000/per month as extra income. Hence, the present application.

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Respondent No. 1, by filing reply, contested the application by taking preliminary objections qua maintainability and limitation. On merits, it has been averred that respondent No. 1 was registered owner of the vehicle in question and the same was insured with respondent No. 2. It has been admitted that the deceased was employed with respondent No. 1 as driver on a monthly salary of Rs. 3,000/and Rs. 50/- per day as diet money. It has also been averred that respondent No. 1 has paid compensation to the applicants, who were dependent upon the deceased and SDM has also given compensation relief to the tune of Rs. 50,000/- to the family of the deceased.

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In reply filed on behalf of respondent No. 2 preliminary objections qua maintainability, collusion etc. were taken. On merits, it has been denied that the deceased was employed, as driver, with respondent No. 1 in vehicle No. HP-34A-1504 and the said vehicle had met with an accident on 31.03.2006, about 12:30 A.M. at Tunga Dhar. It has been stated that the deceased was the real brother of respondent

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No. 1 and the insurer has shown the deceased as his driver just to give undue benefits of compensation under the Act. It has also been denied that on 01.04.2007 the factum of accident was brought to the notice of Patwari Halqua. It is further submitted that if any accident had occurred on 31.03.2006, then why the applicants and respondent No. 1 did not lodge any FIR with the concerned police station and neither informed the Insurance Company about the accident

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nor they have lodged O.D. claim from the Insurance Company. The post mortem of the deceased was also not conducted, which is required to be done in case of accidental death.

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In rejoinders filed to the replies, contents of the application are reasserted and contents of the replies are denied.

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On pleadings of the parties, the following issues were framed on 24.03.2009:-

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“1. Whether the petitioners are the dependents of the deceased workman? OPP

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2. Whether the Insurance was valid as on the date of accident? OPP

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3. Whether the workman met with an accident during course of his employment? OPP

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4. Whether the deceased workman was having valid

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and effective licence at the time of the accident? OPP

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5. Whether the petitioners are entitled to compensation? If yes, to what extent, and to whom the compensation is to be paid? OPP

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6. Relief”

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After the parties led evidence and after hearing the learned Counsel for the parties, the application was allowed and the applicants were held entitled to compensation of Rs. 2,44,605/- alongwith interest @ 6% per annum, from the

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date of filing of the application till its realization, against respondent No. 2-Insurance Company.

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Feeling dissatisfied, respondent No. 2-Insurance Company preferred the instant appeal under Section 30 of the Act for quashing and setting aside the impugned award, which was admitted on 03.09.2013 on the following substantial questions of law:

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“(i) Whether the Commissioner below has wrongly gone with the presumption that the appellant had admitted the deceased to be a workman with the respondent No. 4 and what is the effect framing an issue to that effect?

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(ii) What is the effect of non-registration of the FIR and non-performance of the postmortem report of the deceased and whether it proves the manipulation of the accident?

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(iii) Whether the effect that the applicants got accidental claim from the Government was sufficient to hold that there was an accident and the deceased died in the said

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accident?”

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I have heard the learned counsel for the

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appellant, learned counsel for respondents No. 1, 2, 4(i) to 4(iii) and carefully examined the entire record.

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After perusal of material available on record, it is clear that case of the claimants is that deceased Bhagat Singh was employed by Devi Singh Thakur (since deceased), who was respondent No. 1 before the Court of learned Commissioner. The appellant/Insurance Company had disputed the relationship of employer and employee between the deceased and said Devi Singh Thakur. Therefore, onus was upon the claimants to prove the relationship of employer and employee between the deceased and respondent No. 1. However, the learned Commissioner below without framing the issue in this regard had wrongly placed the onus on the Insurance Company by observing as under:-

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“11. The onus is to be discharged by respondent No. 2 that deceased Bhagat Singh was not the employee of respondent No. 1 and during the course of employment of respondent No. 1 he had not died. But the respondent No. 2 did not lead any evidence in this behalf. The respondent No. 2 has not dared to step into witness box to state about the deceased Bhagat Singh had not died

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during the course of employment of respondent No. 1. Therefore, in the present case on the failure of the respondent No. 2 to step into the witness box to make a statement on oath in support of its pleadings and to subject itself to cross-examination an adverse inference will have to be drawn against it and it will have to be presumed that the deceased Bhagat Singh died during the course of his employment with respondent No. 1.”

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In the opinion of this Court, onus was upon the

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claimants to prove the relationship of employer and employee between the deceased and respondent No. 1. The learned Commissioner below should have framed the issue in this respect and the onus should have been placed upon the claimants to prove relationship of employer and employee between the deceased and respondent No. 1.

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The perusal of record further reveals that the appellant/Insurance Company had also taken preliminary objection in its reply that the petition is collusive one, which has been filed by the petitioners in connivance with respondent No. 1. However, learned Commissioner below has failed to frame issue on this aspect also.

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Therefore, in the opinion of this Court following additional issues have to be framed:-

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“(6) Whether there was relationship of employee and employer between the deceased and respondent No. 1,

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Devi Singh Thakur (since deceased)? If so, its effect. OPP

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(7) Whether the present petition has been filed by the petitioners in collusion with respondent No. 1 Devi Singh Thakur (since deceased)? OPP

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(8) Relief?”

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Hence, without adverting to the merits of the

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case, in view of the additional issues framed by this Court, the impugned award dated 15.06.2013, passed by learned

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Commissioner below is set aside and the present appeal is remanded back to the Court of learned Commissioner below for its disposal afresh in accordance with law.

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It is made clear that not more than two opportunities shall be granted to each of the parties to lead evidence on additional issues framed by this Court. Save and except the official witnesses, parties are directed to produce evidence on their own responsibility.

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Needless to state that since the petition pertains to the year 2008, learned Commissioner below is directed to decide the same as expeditiously as possible and in any event not later than 30.06.2026.

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