# Reliance General Insurance Co. Ltd v. Smt. Warishan & Ors

- **Citation:** (2020) 1 ILRA 906
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-04
- **Case number:** FAFO No. 3397 of 2013
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/reliance-general-insurance-co-ltd-v-smt-warishan-ors-45297
- **Pages:** 10

## Headnote

A. Employee's Compensation Act, 1923 -
Claim - Liability of Employer - Necessity of
proving negligence - Employer shall be
liable to pay compensation for personal
injuries caused to the employee by an
accident arising out of and in the course of
his employment - To hold the liability, it is
not necessary to prove negligence on the
part of employer - It is to be established
only
that
the
injured
or
deceased
employee, at the time of accident was in
the employment and was engaged in
employer's work - Liability of the employer
to pay compensation is absolute subject to
those three exceptions viz. first employee
was under the influence of drinks or drugs,
second he has wilfully disobeyed an order
given and third where the workman has
willfully removed a safety guard or other
devices provided for his safety - (Para 12 &
17)

B. Employee's Compensation Act, 1923 -
Section 2 (n) and 3 - Determination of
'course of employment' - The words in the
course of employment mean in the course
of the work which the workman is
employed to do and which is incidental to it
- The words arising out of employment are
understood to mean that during the course
of employment, injury has resulted from
some risk incidental to the duties of the
service, which, unless engaged in the duty
owing to the master, it is reasonable to
believe the workman would not otherwise
have suffered. (Para 12)

First Appeal From Order dismissed. (E-1)

List of cases cited :-

## Text

906 INDIAN LAW REPORTS ALLAHABAD SERIES
has been caused to the appellant by nonframing of issues and this argument has no
force.

24. On the basis of above discussion, I
find that the learned Commissioner has given
finding on the basis of evidence that at the time
of accident, the deceased was performing his
duties and was in the course of his
employment. He was employed on the vehicle
as cleaner/conductor on payment of 4000/-
rupees
monthly
wages.
The
learned
Commissioner has rightly calculated the
compensation after applying multiplier and
making due deduction against personal
expences. The issues raised as substantial
question of law relate to facts and they have
been duly considered disposed in the
impugned judgement on the basis of facts
evidence and after applying correct law. There
is no perversity or illegality in the impugned
judgement and award nor any substantial
question of law is involved in this appeal. The
appeal lacks merit and is liable to be dismissed.

25. Accordingly, the first appeal
from order is dismissed.
----------
(2020)1ILR 906

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

FAFO No. 3397 of 2013

Reliance General Insurance Co. Ltd.
 ...Appellant
Versus
Smt. Warishan & Ors. ...Respondents

Counsel for the Appellant:
Sri Rahul Sahai
Counsel for the Respondents:
Sri Ved Mani Sharma

A. Employee's Compensation Act, 1923 -
Claim - Liability of Employer - Necessity of
proving negligence - Employer shall be
liable to pay compensation for personal
injuries caused to the employee by an
accident arising out of and in the course of
his employment - To hold the liability, it is
not necessary to prove negligence on the
part of employer - It is to be established
only
that
the
injured
or
deceased
employee, at the time of accident was in
the employment and was engaged in
employer's work - Liability of the employer
to pay compensation is absolute subject to
those three exceptions viz. first employee
was under the influence of drinks or drugs,
second he has wilfully disobeyed an order
given and third where the workman has
willfully removed a safety guard or other
devices provided for his safety - (Para 12 &
17)

B. Employee's Compensation Act, 1923 -
Section 2 (n) and 3 - Determination of
'course of employment' - The words in the
course of employment mean in the course
of the work which the workman is
employed to do and which is incidental to it
- The words arising out of employment are
understood to mean that during the course
of employment, injury has resulted from
some risk incidental to the duties of the
service, which, unless engaged in the duty
owing to the master, it is reasonable to
believe the workman would not otherwise
have suffered. (Para 12)

First Appeal From Order dismissed. (E-1)

List of cases cited :-
1. Mackinnon Mackenzie & Co.(P). Ltd v
Ibrahim Mahammad Issak, AIR 1970 SC 1906

2. Talcher Thermal Station v Bijuli Naik, 76
(1993) CLT 699 (Orrisa)

3.
Shakuntala
Chandrakant
Shreshti
v
Prabhakar Maruti Garvali AIR 2007 SC 248
1 All. Reliance General Insurance Co. Ltd. Vs. Smt. Warishan & Ors.
907
4. Mamtajbi Bapusab Nadaf v United India
Insurance Co, 2010(10) SCC 536

5. S.D. Manager, National Insurance Company
v Shaibarani Mohanta, 2019 (2) TAC 115

6. S.D. Manager, National Insurance Company
v Suresh Kumar Behera, 2019 (2) TAC 461

7. Municipal Corporation of Greater Bombay v
Kisan Gangaram Hire, (2009) 16 SCC 259

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Shri. Rahul Sahai, learned
counsel for the appellant and Shri Ved
Mani Sharma, learned counsel for the
respondents.

2. This first appeal has been filed
against award dated 30.10.2013 passed by
Workmen'sCompensationCommissioner/Assi
stant Commissioner, Bareilly, in Case No.
16/E.C.A/12 (Smt. Warishan and others Vs.
Reliance General Insurance Co. Ltd. and
another) by which the learned Commissioner
has awarded compensation of Rs. 5,19,154/-
along-with 8% simple interest per annum
from the date of award.

3. Before the learned Commissioner
an application was filed under Employees
Compensation Act, 1923 as amended in
the year 2010 for award of compensation.
In the application it was alleged that the
husband of the claimant Shakeel Shah
alias Shakir Shah was driver of defendant
no. 2 in his private car bearing registration
no. U.P 25-E/4065 on payment of Rs.
6,000/- per month with other expenses. On
15.09.2011, the deceased was coming
from Pilibhit to Bareilly by that car, at
about 7 p.m, on the turn of village Gotiya
the car suddenly became out of order and
stopped. The deceased came out of the car
and standing on the road side, he started
giving information on phone to the car
owner. While he was giving information,
some
unknown
vehicle
dashed
the
deceased because of which he sustained
serious and fatal injuries. He was taken to
Mahajan Hospital, Bareilly for treatment from
where he was referred to Lucknow Medical
College where he was admitted and died on
22.09.2011. FIR was lodged in respect of the
accident and offence was registered as crime
no. 962/2011 under Section 279, 338, 304-A
I.P.C. The car owner gave Rs. 25,000/- for the
treatment of the deceased and nothing more
was provided despite the demand raised by
the claimant. The car owner said that the
compensation can be claimed from the
Insurance Company and relevant papers was
given by him to the claimant. The said car
was insured with the Insurance Company at
the time of accident. Therefore, the petition
was filed for compensation.

4. Notices were sent and despite
service the car owner did not appear and
the case was proceeded against him exparte on 1.09.2012. Insurance Company
filed
written
statement
denying
the
allegations of the application and stating
that the deceased was not an employee
with the car owner nor any accident took
place by that car nor at the time of
accident, the deceased was in the course of
employment of the car owner. The age and
salary was also denied. The petition has
been filed by framing false story and the
petitioners are not dependant of the
deceased. The said car was being driven in
violation of the Insurance policy.

5. The following issues (translated in
English) were framed on the basis of
pleadings of the parties:

1. Whether the deceased Shakeel
Shah alias Shakir Shah was employed as
908 INDIAN LAW REPORTS ALLAHABAD SERIES
driver of defendant no. 2 for his car
bearing registration no. U.P 25-E/4065
and in the course of employment on
15.09.2011, the accident took place and
because of sustained injuries during
treatment he died on 22.09.2011?

2. Whether the car U.P 25E/4065 of defendant no. 2 was insured on
the date of accident and was been driven
by driver having valid and effective
driving licence?

3. Whether the claimants are
dependants of the deceased at the time of
accident?

4. Whether the defendant no. 2,
the car owner was giving monthly salary
of Rs. 6,000/- to the deceased and what
was the age of the deceased at the time of
accident?

5. Whether the claimants are
entitled for compensation, if yes, how
much and from which defendant.

6. From the side of claimant the
mother of the deceased was examined and
as documentary evidence registration
certificate of the car, insurance policy,
driving licence of the deceased, the copy
of FIR, site map, final report, post-mortem
report, inquest report, papers relating to
treatment of the deceased, written report
given in respect of accident, X-Ray and
Ultrasound report of the deceased, bills of
purchase of medicines, information given
by Lucknow Medical College regarding
death of deceased to police and other
papers have been filed.

7. After hearing both the sides the
learned
Commissioner
passed
the
impugned award and aggrieved by that this
appeal has been filed.

8. The appellant has challenged the
impugned award on the ground that the
award is arbitrary, illegal and against the
evidence on record. There was no
evidence regarding the deceased being in
the employment of the car owner.
Following substantial questions of law was
raised on the basis of which it was
requested that the impugned award is
liable to be set aside:

1. Whether in the facts and
circumstances of the case, as well as
evidence on record, in the absence of there
being any cogent material to determine the
employment of the deceased as a driver
with
the
owner
respondent,
the
Commissioner
below
recorded
an
erroneous and a perverse finding holding
him to be employed as a driver with the
owner respondent?

2. Whether in the absence of
records of employment being produce (as
required to be maintained under clause
28(3) of Indian Motor Tariff Section 13A
of the Payment of Wages Act, 1936 and
Section 18 if the Minimum Wages Act,
1948 adverse inference was liable to be
drawn against the claimant and the
Commissioner below erred in placing
reliance
upon
wholly
irrelevant
consideration, while determining issue no.
1?

3. Whether in the facts and
circumstances of the case and in light of
the fact that at the time of the accident, the
deceased was not seated in the insured
vehicle in question, which in turn did not
meet with any accident, the Commissioner
below was unjustified in holding the
Insurance Co./Appellant as liable to pay
the amount under the award?

4.
Whether
in
the
facts,
circumstances as well as evidence brought
on record, the Commissioner below erred
in discarding the contents of the inquest
report and erred in placing reliance upon
1 All. Reliance General Insurance Co. Ltd. Vs. Smt. Warishan & Ors.
909
highly belated First Information Report in
concluding that the death of the deceased
had arisen arising out of the course of his
employment?

5. Because the Commissioner
below
erred
in
law
in
assessing
compensation even beyond what was
claimed by the claimant?

9. The first ground of attack has been
that the deceased was not employee of the
car owner and he was not even driving the
car at the time of incident. Section 2 (n) of
the Employee's Compensation Act, 1923
defines 'employee' as below:

"(n)
"workman"
means
any
person (other than a person whose
employment is of a casual nature and who
is employed otherwise than for the
purposes of the employer's trade or
business) who is -

(i) a railway servant as defined
in Section 3 of the Indian Railways Act
1890 (9 of 1890) not permanently
employed in any administrative district or
sub-divisional office of a railway and not
employed in any such capacity as is
specified in Schedule II or

(ia)(a) a master seaman or other
member of the crew of a ship.

(b) a captain or other member of
the crew of an aircraft

(c) a person recruited as driver
helper mechanic cleaner or in any other
capacity in connection with a motor
vehicle

(d) a person recruited for work
abroad by a company and who is
employed outside India in any such
capacity as is specified in Schedule II and
the ship aircraft or motor vehicle or
company as the case may be is registered
in India or;

(ii)
employed
in
any
such
capacity as is specified in Schedule II
whether the contract of employment was
made before or after the passing of this
Act and whether the contract is expressed
or implied oral or in writing; but does not
include any person working in the capacity
of a member of the Armed Forces of the
Union; and any reference to a workman
who has been injured shall where the
workman is dead includes a reference to
his dependants or any of them."

10. Item XXV of Schedule II
includes driver within the definition of the
employee. Section 3 of the Act deals with
the Employer's liability for compensation
and provides as below:

(1) If personal injury is caused
to a workman by accident arising out of
and in the course of his employment his
employer
shall
be
liable
to
pay
compensation in accordance with the
provisions of this Chapter :

Provided that the employer shall
not be so liable -

(a) in respect of any injury which
does not result in the total or partial
disablement of the workman for a period
exceeding three days;

(b) in respect of any injury not
resulting in death or permanent total
disablement caused by an accident which
is directly attributable to -

the workman having been at the
time thereof under the influence of drink
or drugs or the wilful disobedience of the
workman to an order expressly given or to
a rule expressly framed for the purpose of
securing the safety of workmen or the
wilful removal or disregard by the
workman of any safety guard or other
device he knew to have been provided for
the purpose of securing the safety of
910 INDIAN LAW REPORTS ALLAHABAD SERIES
workman. (2) If a workman employed in
any employment specified in Part A of
Schedule
III
contracts
any
disease
specified therein as an occupational
disease peculiar to that employment or if a
workman whilst in the service of an
employer in whose service he has been
employed for a continuous period of not
less than six months (which period shall
not include a period of service under any
other employer in the same kind of
employment) in any employment specified
in Part B of Schedule III contracts any
disease
specified
therein
as
an
occupational disease peculiar to that
employment or if a workman whilst in the
service of one or more employers in any
employment specified in Part C of
Schedule III for such continuous period as
the Central Government may specify in
respect of each such employment contracts
any disease specified therein as an
occupational disease peculiar to that
employment the contracting of the disease
shall be deemed to be as injury by accident
within the meaning of this section and
unless the contrary is proved the accident
shall be deemed to have arisen out of and
in the course of the employment :

Provided that if it proved -

that a workman whilst in the
service of one or more employers in any
employment specified in Part C of
Schedule III has contracted a disease
specified therein as an occupational
disease peculiar to that employment
during a continuous period which is less
than the period specified under this subsection for that employment; and that the
disease has arisen out of and in the course
of the employment the contracting of such
disease shall be deemed to be an injury by
accident within the meaning of this section
: Provided further that if it is proved that a
workman who having served under any
employer in any employment specified in
Part B of Schedule III or who having
served under one or more employers in
any employment specified in Part C of that
Schedule for a continuous period specified
under this sub-section for that employment
and he has after the cessation of such
service contracted any disease specified in
the said Part B or the said Part C as the
case may be as an occupational disease
peculiar to the employment and that such
disease arose out of the employment the
contracting of the disease shall be deemed
to be injury by accident within the
meaning of this section.

(2A) If a workman employed in
any employment specified in Part C of
Schedule III contracts any occupational
disease peculiar to that employment the
contracting whereof is deemed to be an
injury by accident within the meaning of
this section and such employment was
under more than one employer all such
employers shall be liable for the payment
of the compensation in such proportion as
the
Commissioner
may
in
the
circumstances deem just.

(3) The Central Government or
the State Government after giving by
notification in the Official Gazette not less
than three months' notice of its intention
so to do may by a like notification add any
description
of
employment
to
the
employments specified in Schedule III and
shall specify in the case of employments so
added the diseases which shall be deemed
for the purposes of this section to be
occupational diseases peculiar to those
employments respectively and thereupon
the provisions of sub-section (2) shall
apply in the case of a notification by the
Central Government within the territories
to which this Act extends or in case of and
notification by the State Government
within the State as if such diseases had
1 All. Reliance General Insurance Co. Ltd. Vs. Smt. Warishan & Ors.
911
been
declared
by
this
Act
to
be
occupational diseases peculiar to those
employments.

Save as provided by sub-sections
(2), (2A) and (3) no compensation shall be
payable to a workman in respect of any
disease unless the disease is directly
attributable to a specific injury by accident
arising out of and in the course of his
employment. Nothing herein contained
shall be deemed to confer any right to
compensation on a workman in respect of
any injury if he has instituted in a civil
court a suit for damages in respect of the
injury against the employer or any other
person; and no suit for damages shall be
maintainable by a workman in any court
of law in respect of any injury - (a) if he
has instituted a claim to compensation in
respect
of
the
injury
before
a
Commissioner; or

(b) if an agreement has been
come to between the workman and his
employer providing for the payment of
compensation in respect of the injury in
accordance with the provisions of this Act.

11. Thus, section 3 incorporates that
the employer shall be liable to pay
compensation for personal injuries caused
to the employee by an accident arising out
of and in the course of his employment. To
hold the liability, it is not necessary to
prove negligence on the part of employer
and as such, the liability of the employer
to pay compensation is absolute subject to
those three exceptions which have been
carved out in the section itself. The
employer is absolved from the liability of
paying compensation if the employee at
the relevant time was under the influence
of drinks or drugs or who has wilfully
disobeyed an order given or rule framed
for the safety of workman, or in cases
where the workman has wilfully removed
a safety guard or other devices provided
for his safety. In this case, there is nothing
on record to show that the case is covered
under any of the exceptions.

12. Now, the next question is with
regard to the determination of 'course of
employment' and whether the deceased
employee
was
in
the
course
of
employment when the accident took place.
In Mackinnon Mackenzie & Co.(P). Ltd
v Ibrahim Mahammad Issak, AIR 1970
SC 1906, the Supreme Court held:

"The words in the course of
employment mean in the course of the work
which the workman is employed to do and
which is incidental to it. The words arising
out of employment are understood to mean
that during the course of employment, injury
has resulted from some risk incidental to the
duties of the service, which, unless engaged
in the duty owing to the master, it is
reasonable to believe the workman would
not otherwise have suffered. In other words
there must be a causal relationship between
the accident and the employment. The
expression arising out of employment is again
not confined to the mere nature of the
employment. The expression applies as such
to its nature, its obligations and its incidents.
If by reason of any of those factors the
workman is brought within the zone of special
danger the injury would be one which arises
out of employment. To put it differently if the
accident had occurred on account of a risk
which is an incident of the employment, the
claim for compensation must succeed, unless
of course the workman has exposed himself to
an added peril by his own imprudent act."

13. In Talcher Thermal Station v
Bijuli Naik, 76 (1993) CLT 699 (Orrisa),
the Court has observed:
912 INDIAN LAW REPORTS ALLAHABAD SERIES

"The
pre-conditions
for
attracting the provisions of section 3(1) of
the Act are that death or injury must be
caused to a employee; the said injury must
have been caused by accident; and the
accident must have arisen out of and in
course of his employment. A casual
connection between the employment and
the injury caused by the accident must
exist. If after looking the at the entire facts,
a fair inference can be drawn that the
employment caused the injury, then the
employer would be liable to pay the
compensation. The liability under section
3(1) of the Act would accrue, if it is
established that an injury has been caused
to an employee and the accident arose out
of and in the course of his employment."

The Court further laid down
following principles to determine the
course of employment and arising out of
employment:

"(i) there must be a causal
connection between the injury and the
accident and the accident and the work
done in the course of employment; (ii) the
onus is upon the appellant to show that it
was the work and the resulting strain
which contributed to or aggravated the
injury; (iii) it is not necessary that the
workman must be actually working at the
time of his death or that death must occur
while he was working or had just ceased to
work; and (iv) where the evidence is
balanced, if the evidence shows a greater
probability which satisfies a reasonable
man that the work contributed to the
causing of personal injury, it would be
enough for the workman to succeed. But
where the accident involved a risk
common to all humanity and did not
involve any peculiar or exceptional danger
resulting
from
the
nature
of
the
employment, or where the accident was
the result of an added peril to which the
workman, by his own conduct, exposed
himself and which peril was not in the
normal performance of the duties of his
employment, then the employer will not be
liable under section 3 of the Act."

14. In Shakuntala Chandrakant
Shreshti v Prabhakar Maruti Garvali
AIR 2007 SC 248, it has been reiterated
by the Court that there has to be a
proximate nexus between cause of death
and employment instead of a stray mention
that death took place during the course of
employment.
The
Court
laid
down
following principles to determine the
course of employment:

"1.There must be a causal
connection between the injury and the
accident and the accident and the work
done in the course of employment.

2. The onus is upon the appellant
to show that it was the work and the
resulting strain which contributed to or
aggravated the injury.

3. If the evidence brought on
records establishes a greater probability
which satisfies a reasonable man that the
work contributed to the causing of the
personal injury, it would be enough for the
workman to succeed, but the same would
depend upon the fact of each case."

15. Section 30 of the Act provides
for appeal against order of Commissioner.
It lays down as follows:

"(1) An appeal shall lie to the
High Court from the following orders of a
Commissioner namely :-

(a) an order as awarding as
compensation a lump sum whether by way
of redemption of a half-monthly payment
or otherwise or disallowing a claim in full
or in part for a lump sum;
1 All. Reliance General Insurance Co. Ltd. Vs. Smt. Warishan & Ors.
913

(a) an order awarding interest
or penalty under section 4A;

(b) an order refusing to allow
redemption of a half-monthly payment;

(c) an order providing for the
distribution of compensation among the
dependants of a deceased workman or
disallowing any claim of a person alleging
himself to be such dependant;

(d)
an
order
allowing
or
disallowing any claim for the amount of an
indemnity under the provisions of subsection (2) of section 12; or

(e) an order refusing to register
a
memorandum
of
agreement
or
registering the same or providing for the
registration of the same subject to
conditions :

Provided that no appeal shall lie
against any order unless a substantial
question of law is involved in the appeal
and in the case of an order other than an
order such as is referred to in clause (b)
unless the amount in dispute in the appeal
is not less than three hundred rupees :

Provided further that no appeal
shall lie in any case in which the parties
have agreed to abide by the decision of the
Commissioner or in which the order of the
Commissioner gives effect to an agreement
come to by the parties :

Provided further that no appeal
by an employer under clause (a) shall lie
unless the memorandum of appeal is
accompanied by a certificate by the
Commissioner to the effect that the
appellant has deposited with him the
amount payable under the order appealed
against.

The period of limitation for an
appeal under this section shall be sixty
days.

(3) The provisions of section 5 of
the Limitation Act 1963 (36 of 1963) shall
be applicable to appeals under this
section."

16. In Shakuntala Chandrakant
Shreshti (supra), the Supreme Court has
explained the expression 'question of law'
which
is
inherently
required
for
maintaining an appeal against the order of
compensation passed under the Act. The
Court laid down as follows:

"A question of law would arise
when the same is not dependent upon
examination of evidence, which may not
require any fresh investigation of fact. A
question of law would, however, arise
when the finding is perverse in the sense
that no legal evidence was brought on
record or jurisdictional facts were not
brought on record."

17. It is clear from the scheme of the
Act that for extending the benefit of the
beneficial provision, the contract of
employment may be express, implied,
written or oral and to succeed in the claim
for compensation, it is to be established
only
that
the
injured
or
deceased
employee, at the time of accident was in
the employment and was engaged in
employer's work or for the furtherance of
the employer's work and was not doing
something
for
his
own
benefit
or
accommodation. It was found established
by the learned Commissioner that, in
absence of any otherwise evidence on
record, the the accident took place in the
course
of
employment
and
the
probabilities are more in the favour of the
deceased to infer that the accident arose
out of and in the course of employment.
The learned counsel to the appellant has
taken reference of the judgement in
Mamtajbi Bapusab Nadaf v United
India Insurance Co, 2010(10) SCC 536
914 INDIAN LAW REPORTS ALLAHABAD SERIES
where the deceased was a workman
engaged in uploading and unloading foodgrains from a tractor. While unloading to
underground storage, he climbed up to the
grocery pit to clean the same and fell into
the pit and died because of suffocation.
His claim was rejected on facts of the case
finding that the vehicle was not involved
in the accident. It is evident that the facts
of this case is very different and is based
on the non involvement of the vehicle and
the accident took place when the deceased
was engaged in entirely different work to
that of his employment. Hence, the
referred judgement cannot be applied in
the factual matrix of this case.

18. On the other hand, the learned
counsel to the respondent-claimant has
referred to two judgements, both of Orissa
High Court, namely, S.D. Manager,
National
Insurance
Company
v
Shaibarani Mohanta, 2019 (2) TAC 115
and S.D. Manager, National Insurance
Company v Suresh Kumar Behera,
2019 (2) TAC 461 to show that in both the
cases, driver of the truck died when he
stopped the truck and stepped down to
take food and was dashed by another truck
and the Court applying the doctrine of
notional extension and held that there was
casual
connection
between
the
employment of the deceased and his
accidental death and the accident took
place in the course of employment.

19. Clearly, at the time of accident,
the driver was talking on phone giving
information about the car going out of
order. As the driver of the car, he was
coming back driving the car from Pilibhit
and on the way, when the car went out of
order and stopped, he came down from the
car to inform the car owner. This fact has
been nowhere rebutted by any evidence
from the side of Insurance Company. The
insurance company neither gave any
evidence nor made any effort to summon
and produce the car owner in evidence.
The fact that the deceased was not inside
the car will not make any difference as the
deceased would certainly continue to be in
course of employment unless he returned
to the car owner. There was no occasion
for him to be at the place of occurrence
unless he was returning from Pilibhit to his
destination driving the car of the car
owner.

20. The next question raised from the
side of the appellant is in respect of delay
in FIR and stipulation in respect of cause
of death in inquest report and also
submission of FR in the matter by police
after investigation. It appears that the
accident
took
place
on
15.9.2011,
deceased died on 22.9.2011 and FIR was
lodged on 12.11.2011. The FIR itself
contains that the FIR was lodged after the
religious ritual which takes place after 40
days from the date of death amongst
Muslims. The explanation is convincing
for the purpose of compensation claim. So
far as the stipulation in inquest report is
concerned, the purpose of preparing
inquest report is to despatch the dead body
for post-mortem and it has been correctly
pointed out by the learned Commissioner
that the Insurance Company, by any
evidence, has not been able to show that
the witnesses were eyewitnesses of the
accident nor anyone of them have been
examined. The learned Commissioner has
also mentioned that, though, FR has been
submitted by police after investigation, the
case is pending before the court of
A.C.J.M and moreover, in the FR, the fact
of accident has been mentioned and
because no witness of accident was found
due to lapse of time, FR has been
1 All. Smt. Heema Gill @ Hema Gill & Anr. Vs. Ashish Kumar & Ors.
915
submitted. It has been also rightly
concluded by the learned Commissioner
that no evidence was given by the
Insurance Company and even a surveyor
was not deputed to bring facts as alleged
by the Insurance Company.

21. The further submission is that the
claim petition was filed for Rupees five
lacs and the learned Commissioner has
awarded Rs. 519154/- with 8%interest and
as such the impugned judgement suffers
from illegality as it goes beyond what was
claimed by the claimants. The award
amount has been calculated on the basis of
legally permissible yardsticks and what is
expected
is
that
the
amount
of
compensation
should
be
just
and
reasonable. In Municipal Corporation of
Greater Bombay v Kisan Gangaram
Hire, (2009) 16 SCC 259, compensation
claim for Rs. 75000/- was filed but the
Tribunal awarded Rs 105000/- finding the
same to be just and the same was upheld.
As such, there is no illegality in it.

22. On the basis of above discussion,
I find that the learned Commissioner has
given finding on the basis of evidence that
at the time of accident, the deceased was
performing his duties and was in the
course of his employment. He was
employed on the vehicle as driver on
payment of 6000/- rupees monthly wages.
The learned Commissioner has rightly
calculated the compensation after applying
multiplier and making due deduction
against personal expenses. The issues
raised as substantial question of law relate
to facts and they have been duly
considered disposed in the impugned
judgement on the basis of facts evidence
and after applying correct law. there is no
perversity or illegality in the impugned
judgement and award nor any substantial
question of law is involved in this appeal.
The appeal lacks merit and is liable to be
dismissed.

23. Accordingly, the first appeal
from order is dismissed.
----------
(2020)1ILR 915

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2019

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

FAFO No. 4130 of 2017

Smt. Heema Gill @ Hema Gill & Anr.
 ...Appellants
Versus
Ashish Kumar & Ors. ...Respondents

Counsel for the Appellants:
Sri Devendra Gupta

Counsel for the Respondents:
Sri Pawan Kumar Singh

A.
Motor
Accident
Act,
1988
-
Compensation - Calculation of loss of
dependency - Tribunal erred in taking into
consideration the deceased's income from
the agricultural property despite of his
noticing that the deceased was earning
from business or profession - While
calculating the loss of dependency, the
income from business or profession ought
to have been made the basis. (Para 10)

B. Motor Accident Act, 1988 - Compensation
- Future Prospect - Its relevance while
determining the income of deceased -
Addition of 25% of the established income
should be made where the deceased is aged
between 40 to 50 years - Held, Tribunal
failed to award any amount towards the
future prospect, though the deceased was
aged about 42 years. (Para 10)