Oriental Insurance Company Vs Reema Devi

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Neutral Citation No. ( 2026:HHC:29470 )

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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FAO No. 48 of 2016

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Reserved on: 08.07.2026 Date of decision: 20.07.2026 Date of uploading on website: 20.07.2026

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________________________________________________ Oriental Insurance Company Ltd. …..Appellant. Versus Reema Devi & others. ……Respondents _______________________________________________ Coram_ The Hon'ble Mr. Justice Sushil Kukreja, Judge. 1 Whether approved for reporting? ________________________________________________ For the appellant: Dr. Lalit K. Sharma, Advocate. For respondents No. 1 to 4: Mr. Jagat Paul, Advocate. For respondents No. 5: Mr. Harish Kumar, Advocate, vice Mr. Naveen Thakur, Advocate. Sushil Kukreja, Judge.

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The present appeal is maintained by the appellant/Insurance Company, against award, dated 27.12.2014, passed by learned Commissioner under the Employee’s Compensation Act, 1923, Bilaspur, District Bilaspur, H.P. (hereinafter referred to as “the learned Commissioner”), in WC No. 21/2 of 2011/2007.

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The facts giving rise to the instant appeal are that

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

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Neutral Citation No. ( 2026:HHC:29470 )

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the petitioners/claimants (respondents No. 1 to 4 herein) preferred a petition under Section 22 of the Employee’s Compensation Act, 1923 (for short “the Act”) before the learned Commissioner below. As per the petitioners, petitioner No. 1-Smt. Reema Devi was wife and petitioners No. 2 to 4 were minor children of late Shri Prittam Chand (the deceased) and they were dependents of the deceased. 2(a). The petitioners averred in their petition that the deceased was employed as driver in truck, bearing registration No. HP-14-4254, which was owned by respondent No. 1-Smt. Savitri Devi. On 13.11.2006, near village Malothi, the aforesaid truck met with an accident and at that time it was being driven by the deceased. In the said accident the deceased sustained injuries and ultimately he died. The deceased was 29 years old at the time of the accident and he used to get Rs.5000/- monthly salary and Rs.1000/- per month as diet money. In addition to the above,

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the deceased used to earn Rs.1000/- per month from agriculture. Thus, the total income of the deceased was Rs.7000/- per month and he was only bread winner of the family. The petitioners were totally dependent upon the income of the deceased. The petitioners sought

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Neutral Citation No. ( 2026:HHC:29470 )

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compensation in the sum of Rs.10,00,000/- alongwith interest @ 15% per annum.

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On notice, the respondents contested the petition by filing different separate replies. Respondent No. 1-Smt. Savitri Devi, in her reply, admitted that the deceased was working as her driver on the aforesaid truck and he was being paid an amount of Rs.5000/- per month. She further averred that the vehicle in question was duly insured with respondent No. 2-Insurance Company.

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Respondent No. 2-Insurance Company in its reply raised preliminary objections of maintainability, cause of action, jurisdiction, respondent had not issued the insurance policy insuring or contracting to indemnify respondent No. 1 for any loss whatsoever and the vehicle was being driven by

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an unauthorized person and he was not having any valid and effective driving licence. The replying respondent averred that the vehicle in question was being plied without registration, fitness certificate and valid route permit. As per the replying respondent, the insurance policy specifically excluded the liability in the absence of above mentioned documents. It was further averred that the deceased was neither a workman covered in the Act, nor the accident took

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place during the course of employment, therefore, the replying respondent cannot be saddled with any liability.

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The petitioners filed rejoinder to the replies filed by the respondents, wherein they denied the stand of the respondents and reiterated the averments made in the petition.

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On the basis of the pleadings of the parties, the learned Commission below on 05.06.2008 and 02.04.2013

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framed the following issues:

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“1. Whether the deceased Prittam Chand was workman and died during the course of employment of respondent No. 1? OPP

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If issue No. 1 is proved in affirmative, whether petitioners are entitled for compensation if so to what amount and from whom? OPP

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Whether the deceased Prittam Chand was not having a valid driving license? OPR-2

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3-A Whether the vehicle in question was being driven by an authorized person not entitled to drive the vehicle as alleged? OPR-2

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3B Whether respondent No. 2 has not issued any policy of insurance contracting to indemnify respondent No. 1 as alleged? OPR-2

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3C Whether the deceased was not a

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workman under the ambit of Employee’s Compensation Act, 1923? OPR-2

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4. Relief.”

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After the parties led evidence and after hearing the

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learned Counsel for the parties, the petition was allowed and the petitioners were awarded compensation of Rs.4,30,360/alongwith interest of Rs.4,13,145/- (total Rs.8,43,505/-). The aforesaid compensation and the statutory interest thereupon was to be paid by respondent No. 2-Insurance Company with further interest upon compensation @ 12% per annum, if not deposited within 30 days, until deposited/realized.

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Feeling dissatisfied, respondent No. 2-Insurance

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Company preferred the instant appeal under Section 30(1) of the Act for quashing and setting aside the impugned award, which was admitted for final hearing on following substantial questions of law:-

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“1. Whether on account of misreading, misappreciation and misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgment and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable?

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2. Whether the commissioner under Employees Compensation Act is competent to invoke penal action by directing the insurance company to deposit the amount of compensation within 30 days and on the failure to do so to order the

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deposit thereof together with interest at the rate of 12% per annum till realization.”

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I have heard the learned Counsel for the

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appellant, learned counsel for respondents No. 1 to 4, learned vice counsel for respondent No. 5 and carefully examined the entire record.

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The learned Counsel appearing for the appellant/insurance company contended that the mother of the deceased was owner of the truck and the deceased was not employed by her and in absence of any evidence with regard to employment of the deceased with the respondent No.1, the Commissioner below had erroneously entertained the claim petition and awarded compensation. He further contended that the learned Commissioner below had gravely erred in holding that the claimants had been successful in establishing the relationship of employee and employer between the deceased and respondent No. 1, as no documentary proof had been placed on record to prove that the deceased was employed as driver by his mother (respondent No. 1). With these submissions, a prayer for setting aside the impugned award and acceptance of the instant appeal is made.

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Neutral Citation No. ( 2026:HHC:29470 )

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On the other hand, it is submitted by the learned Counsel appearing for respondents No. 1 to 4 that the deceased was employed by the owner of the vehicle, and, incidentally, he was also her son as such, it is submitted, that

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as the deceased was engaged as driver of the vehicle by its owner, and, he died during the course of employment, in that view of the matter, the learned Commissioner below has correctly appreciated the evidence on record, and, recorded its findings and the present appeal deserves to be dismissed.

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On 02.05.2016 this Court framed the following substantial questions of law:

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“1. Whether on account of misreading, misappreciation and misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgment and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable?

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Whether the commissioner under Employees Compensation Act is competent to invoke penal action by directing the insurance company to deposit the amount of compensation within 30 days and on the failure to do so to order the deposit thereof together with interest at the rate of 12% per annum till realization.”

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Now the question which arises for consideration

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before this Court is as to whether the claimants have established that there was relationship of employee and employer between deceased-Pritam Chand and respondent No. 1, Savitri Devi.

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The onus was upon the claimants to establish that there was a relationship of employee and employer between the deceased and respondent No. 1. Admittedly, deceased-Prittam Chand was son of respondent No. 1- Savitri Devi. The case of the claimants is that the deceased was employed by respondent No. 1, as driver, on her vehicle No. HP-14-4254, on monthly salary of Rs.5,000/- plus Rs.1000/- per month as diet money and while discharging his duties as driver, the vehicle met with an accident on 13.11.2006, as a result of which, deceased died.

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Petitioner No. 1-Reema Devi, while appearing in the witness box as PW-1, deposed that her husband Prittam Chand (since deceased) was employed as driver by Smt. Savitri Devi wife of Shri Mast Ram. On 13.11.2006, her husband died during the course of said employment. This witness, in her cross-examination, deposed that Smt. Savitri Devi was her mother-in-law and used to live separately. She further deposed that she had not produced any record qua

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Neutral Citation No. ( 2026:HHC:29470 )

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the employment and salary of the deceased.

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Smt. Savitri Devi, while appearing in the witness

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box as RW-2, deposed that there was a truck, bearing registration No. HP-14-4254, and it met with an accident as a result of which deceased Pritam Chand died in the accident. She further deposed that on the aforesaid truck she had employed her son (the deceased) as driver and she used to pay him Rs.5000/- per month as salary and in addition to this

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she also used to pay Rs.200/- per day to him as daily allowance. This witness, in her cross-examination, deposed that she had purchased the aforesaid vehicle for her son (the deceased).

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The Hon’ble Supreme Court in Gottumukkala Appala Narasimha Raju & others vs. National Insurance Company Limited & another, (2007) 13 Supreme Court Cases 446, has held as under:

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“24. No documentary proof to establish the contract of employment was produced. No independent witness was examined. Even as to for what purpose the tractor was being used had not been disclosed. How the accident had taken place is also known (sic not) bore out from the records of the case. If the deceased, with all intent and purport, was the owner of the tractor, the claim petition under the 1988 Act might not have been maintainable. A petition under the 1923 Act certainly would not lie. Only because Sections 143 and 167 of the 1988 Act refer to the provisions of the 1923 Act, the same by itself would not mean that the provisions of the 1988 Act, proprio vigore would apply in regard to a proceeding for payment under the 1923 Act. The limited applicability of the provisions of the1988 Act, in relation to the proceedings under the 1923 Act has been

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discussed by this Court in the aforementioned judgments. It is, thus, not possible to extend the scope and ambit of the provisions of the 1988 Act to the provisions of the 1923 Act save and except to the extent noticed hereinbefore.”

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In the case on hand, no cogent and satisfactory

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evidence, much less, documentary evidence has been

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placed on record by the claimants so as to prove that the deceased was employed, as driver, by his mother, respondent No. 1. It appears that a story has been concocted to claim compensation by alleging that deceased was a paid employee with his mother respondent No. 2 and was being paid monthly salary of Rs. 5,000/- plus Rs.1000/per month as diet money. In the opinion of this court, the oral testimonies of PW-1 and RW-2 cannot be relied upon in order to establish the relationship of employee and employer between the deceased and respondent No. 1.

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There may not be any express prohibition for such employment, but, having regard to the defence of the appellant/insurance company, if the compensation is claimed by resorting to the provisions under the Workmen's Compensation Act, 1923, the claimants have to establish that the deceased was employed by the respondent No.1. May

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be that unfortunate claimants are dependants of the deceased, but in absence of proving employment of the

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deceased with the owner of the vehicle, they are not entitled to claim any compensation. In the opinion of this court, the

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claim of employment put forth by the claimants is not bonafide and appears to have been put forth only for laying a claim against the insurance company. This Court is conscious of the fact that the scheme of the Act is a beneficial legislation. True, the technicalities and niceties cannot be allowed to be raised in order to defeat the purpose of the Act, but when the claim is not genuine, the claimants certainly have to cross the technicalities and niceties of the law, as the accident is not a bonanza for the claimants.

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In the instant case, apart from the self-serving statements of the interested witnesses, i.e. claimant Reema Devi (PW-1) as well as respondent No. 1 (RW-2), Savitri Devi, no cogent and satisfactory documentary evidence has been placed on record to the effect that the deceased was employed as driver by respondent No. 1. There is no independent evidence on record to prove the employment of the deceased, as such, it cannot be said that the deceased was employed by his own mother for the purpose of driving the vehicle. The learned Commissioner below, in absence of any independent evidence on record, recorded the finding

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with regard to employment, on a mere presumption. In that view of the matter, the impugned award of the Commissioner below is liable to be set aside. Substantial questions of law are answered accordingly.

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Accordingly, in view of my discussion aforesaid, appeal preferred by the appellant/Insurance Company is allowed and impugned order/award dated 27.12.2014 is quashed and set aside.

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The appeal, so also pending application(s), if any, stands disposed of.

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( Sushil Kukreja ) Judge

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20^th July, 2026 (virender)

Oriental Insurance Company v. Reema Devi

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