# The Oriental Insurance Company Ltd v. Smt. Rajkali and another

- **Citation:** (2010) 2 ILRA 700
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-07-06
- **Case number:** First Appeal From Order No. 1845 of 2010
- **Bench:** S.P. Mehrotra, A.K. Roopanwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-oriental-insurance-company-ltd-v-smt-rajkali-and-another-41680
- **Pages:** 6

## Headnote

Compensation-section
30Appeal-Act
1923-Section
2(1)(e)-
Definition-'Workman'- includes a person
employed in any Capacity-without being
prejudice with nature of employment
may be either regular or temporary, or
casual
or
contractual-deceased
employed
with
Corporation
on
contractual basis-finding recorded by
workmen's compensation commissionerjustified based on record-can not be
interfered-under writ jurisdiction.

Held: Para 28 and 29

It has been established on record that
the
said
Devendra
Singh
sustained
injuries while driving the aforesaid Bus,
and he died on account of the said
injuries. Therefore, the death of the said
Devendra Singh took place on account of
the injuries sustained by him by accident
arising out of and in the course of his
employment with the respondent no.2.

In the circumstances, we are of the
opinion
that
the
Workmen's
Compensation
Commissioner
was
justified in awarding compensation to
the
claimant-respondent
no.
1
on
account
of
the
death
of
the
said
Devendra
Singh
in
the
aforesaid
accident.

## Text

700 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
therefore, can be a matter of contest before
the competent authority if the collection
charges are in violation of any procedure or
are being imposed excessively. In the
absence of any material or foundation to
that effect in the writ petition, this issue
cannot be made the basis for interference
with the discretion exercised by the learned
single Judge.

27. So far as the grant of concession is
concerned, we have examined the judgment
of the learned single Judge and we find that
the learned single Judge has, taking a
compassionate view of the matter, waived
off 50% of the recovery charges.

28. In such an event and in view of the
reasons given herein above, we are not
inclined to exercise our jurisdiction to
interfere with the impugned order. The
appeal, accordingly, fails and is hereby
dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.07.2010

BEFORE
THE HON'BLE S.P. MEHROTRA, J.
THE HON'BLE A.K. ROOPANWAL, J.

First Appeal From Order No. 1845 of 2010

The Oriental Insurance Company Ltd.

 ...Appellant
Versus
Smt. Rajkali and another ...Respondent

Counsel for the Appellant:
Sri S.K. Mehrotra

Workmen's
Compensation-section
30Appeal-Act
1923-Section
2(1)(e)-
Definition-'Workman'- includes a person
employed in any Capacity-without being
prejudice with nature of employment
may be either regular or temporary, or
casual
or
contractual-deceased
employed
with
Corporation
on
contractual basis-finding recorded by
workmen's compensation commissionerjustified based on record-can not be
interfered-under writ jurisdiction.

Held: Para 28 and 29

It has been established on record that
the
said
Devendra
Singh
sustained
injuries while driving the aforesaid Bus,
and he died on account of the said
injuries. Therefore, the death of the said
Devendra Singh took place on account of
the injuries sustained by him by accident
arising out of and in the course of his
employment with the respondent no.2.

In the circumstances, we are of the
opinion
that
the
Workmen's
Compensation
Commissioner
was
justified in awarding compensation to
the
claimant-respondent
no.
1
on
account
of
the
death
of
the
said
Devendra
Singh
in
the
aforesaid
accident.

(Delivered by Hon'ble Satya Poot
Mehrotra, J.)

1. The present Appeal has been filed
under Section 30 of the Workmen's
Compensation Act, 1923 against the
judgment and Order dated 30.3.2010
passed by the Workmen's Compensation
Commissioner,
Bulandshahr
whereby
compensation
amounting
to
Rs.
3,01,304/- with simple interest at the rate
of 6% per annum has been awarded to the
claimant-respondent no.1 on account of
the death of Devendra Singh, son of the
claimant-respondent no.1 in an accident,
which
took
place
at
9
A.M.
on
29.12.2005.

2. The claimant-respondent no.1
filed Claim Case being W.C.A. No. 07 of
2 All] The Oriental Insurance Company Ltd V. Smt. Rajkali and another
701
2006
before
the
Workmen's
Compensation
Commissioner,
Bulandshahr, inter-alia, stating that her
son Devendra Singh was employed on the
post of Driver at Sohrab Gate Depot,
Merrut of the respondent no. 2 for driving
Bus bearing Registration No. U.P. 15L/6738; and that on 29.12.2005, the said
Devendra Singh was taking the said Bus
from Meerut to Bareilly; and that at 9
A.M. on the said date, when the said Bus
reached village-Megha Nangla, Police
Station-Shahjadnagar
on
National
Highway, Bareilly, a Tractor bearing
Registration No. U.P. 22A 2567 coming
from the opposite direction and being
driven rashly and negligently collided
with the said Bus as a result of which the
said Devendra Singh was seriously
injured, and he died in the Government
Hospital, Rampur.

3.

The
Appellant-Insurance
Company as well as the respondent no. 2
(U.P. State Road Transport Corporation)
filed their respective Written Statements.

4. In the Written Statement filed on
behalf of the respondent no. 2, it was,
inter-alia,
stated
that
the
deceased
Devendra Singh was engaged as a
contract driver, and there was no
relationship
of
master
and
servant
between the respondent no.2 and the said
Devendra Singh; and that the said
Devendra Singh used to run Bus on
payment of 50 paise per kilometer; and
that the Bus was duly insured with the
Appellant-Insurance Company.

5. In the Written Statement filed on
behalf
of
the
Appellant-Insurance
Company, it was, inter-alia, stated that
there was collusion between the claimantrespondent no.1 and the respondent no.2
in order to make illegal gain.

6. The claimant-respondent no.1
filed documentary evidence in support of
her case. On behalf of the respondent
no.2, Insurance Policy was filed showing
that the Bus was insured with the
Appellant-Insurance Company for the
period with effect from 13.12.2005 to
12.12.2006.

7. The claimant-respondent no.1
(Smt. Rajkali) examined herself before
the
Workmen's
Compensation
Commissioner,
Bulandshahr.
In
her
statement, the claimant-respondent no.1
(Smt. Rajkali), inter-alia, reiterated the
averments made in her Claim Case. The
claimant-respondent no. 1 also examined
Harendra Singh who stated that he was
travelling in the Bus. He proved the
occurrence
of
accident,
the
Driver
Devendra Singh sustaining injuries in the
accident, and the death of Devendra Singh
in Rampur Hospital.

8. On behalf of the respondent no.2,
Phool Singh was examined as a witness.
The said Phool Singh, inter-alia, stated
that the deceased Devendra Singh was
engaged as a contract driver, and he was
paid at the rate of 50 paise per kilometer;
and that there was no fixation of salary to
be paid to the said Devendra Singh; and
that the contract with the said Devendra
Singh was made on 3rd July, 2003.

9. Santosh Kumar Sharma, who was
the conductor of the aforesaid Bus, was
also examined. The said Santosh Kumar
Sharma, inter-alia, stated that the accident
took place in his presence; and that at the
time of accident, the said Devendra Singh
was driving the Bus; and that the said
702 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Devendra Singh was driving the Bus
rashly. In his cross-examination, the said
Santosh Kumar Sharma admitted that in
the report lodged by him in regard to the
accident, it was stated that the accident
took place on account of fog, and there
was no mention of the negligent driving
by the said Devendra Singh in the said
Report.

10. On a consideration of the
evidence on record, the Workmen's
Compensation Commissioner held that
the
deceased
Devendra
Singh
was
engaged as contract driver by the
respondent no.2; and that the said
Devendra Singh died on account of
injuries sustained by him in the aforesaid
accident, which took place on 29.12.2005;
and that the case set-up by the respondent
no. 2 that the accident took place on
account of negligence of the said
Devendra Singh, was liable to be rejected;
and that as per the Post-Mortem Report
and the Driving Licence, the age of the
deceased was assessed as 35 years at the
time of his death; and that the deceased
Devendra Singh was paid Rs. 3058/- in
the month of November, 2005, and the
compensation to be awarded was to be
computed on the said basis.

11. The Workmen's Compensation
Commissioner further held that whatever
might be the category of the workman,
compensation was to be awarded under
the Workmen's Compensation Act, 1923,
in case, the death of such workman took
place by an accident arising out of and in
the course of his employment.

12. Accordingly, the Workmen's
Compensation Commissioner awarded
compensation amounting to Rs.3,01,304/-
. Further, simple interest at the rate of 6%
per annum was to be paid with effect from
the date of filing of the Claim Case till the
date of actual payment, in case, the
payment was not made within the
prescribed period.

13. Against the said Judgment and
Order dated 30.3.2010 passed by the
Workmen's Compensation Commissioner,
Bulandshahr, the present Appeal has been
filed
by
the
Appellant-Insurance
Company.

14. We have heard Shri S.K.
Mehrotra,
learned
counsel
for
the
Appellant-Insurance
Company,
and
perused the record.

15. Shri S.K. Mehrotra, learned
counsel
for
the
Appellant-Insurance
Company submits that in view of the
findings recorded by the Workmen's
Compensation Commissioner that the
deceased Devendra Singh was engaged as
a contract employee for driving the Bus,
he was not covered under the category of
"workman", and there was no relationship
of master and servant between the
respondent no.2 and the said Devendra
Singh.

16.

Having
considered
the
submissions made by Shri S.K. Mehrotra,
learned
counsel
for
the
AppellantInsurance Company, we find ourselves
unable to accept the same.

17. Sub-section (1) of Section 3 of
the Workmen's Compensation Act, 1923
(in short "the W.C. Act"), inter-alia,
provides that 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
2 All] The Oriental Insurance Company Ltd V. Smt. Rajkali and another
703
compensation in accordance with the
provisions of Chapter II of the said Act.

18. The word "employer" has been
defined in clause (e) of sub-section (1) of
Section 2 of the W.C. Act as under:

"(e) "employer" includes any body of
persons whether incorporated or not and
any managing agent of an employer and
the legal representative of a deceased
employer, and, when the services of a
workman are temporarily lent or let on
hire to another person by the person with
whom the workman has entered into a
contract of service or apprenticeship,
means such other person while the
workman is working for him;"

19. The word "workman" has been
defined in clause (n) of sub-section (1) of
Section 2 of the W.C. Act as under:

"(n) "workman" means any person
[***] who is-

(i) a railway servant as defined in
[clause (34) of section 2 of the Railway
Act, 1989 (24 of 1989)], 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 such 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,
include a reference to his dependants or
any of them."

20. Reading the definition of
"employer", as contained in clause (e) of
sub-section (1) of Section 2 of the W.C.
Act, with the definition of "workman", as
contained in clause (n) of sub-section (1)
of Section 2 of the said Act, it is evident
that in case a person is employed in any
such capacity as is specified in Schedule
II to the said Act, the person would be
covered
under
the
definition
of
"workman" whether the contract of
employment is expressed or implied, oral
or in writing.

21. Hence, it follows that for a
person to be covered under the definition
of the word "workman" under the W.C.
Act, he must be employed under a
contract of employment in any such
capacity as is specified in Schedule II to
the
said
Act.
Such
contract
of
employment may be expressed or implied,
oral or in writing. However, there is no
mention in the W.C. Act regarding nature
of employment which results from such
704 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
contract of employment, namely, as to
whether the nature of employment should
be permanent, temporary, casual or
contractual etc. In absence of any such
restriction in the W.C. Act, we are of the
opinion that irrespective of the nature of
employment, the person may be covered
under
the
category
of
"workman"
provided
various
requirements
as
contained in clause (n) of sub-section (1)
of Section 2 of the W.C. Act read with
Schedule II to the said Act are fulfilled.

22. It is pertinent to note that prior to
the amendment made by Act No. 46 of
2000 in clause (n) of sub-section (1) of
Section 2 of the W.C. Act, the words "any
person" occurring in clause (n) were
followed by the following brackets and
words: "(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)".

23. The said words were omitted by
Act No. 46 of 2000 with effect from
8.12.2000. This amendment further shows
that
the
definition
of
the
word
"workman", as contained in clause (n) of
sub-section (1) of Section 2 of the W.C.
Act, does not contemplate any particular
kind of employment, namely, permanent,
temporary, casual or contractual etc.
Whatever
may
be
the
nature
of
employment, the person may be covered
under
the
definition
of
"workman"
provided the requirements laid down in
clause (n) of sub-section (1) of Section 2
of the W.C. Act read with Schedule II to
the said Act are fulfilled.

24. In the present case, it is
established on record that the deceased
Devendra Singh was engaged as a driver
by the respondent no. 2 on contractual
basis. The factum of employment of the
deceased Devendra Singh with the
respondent no. 2 was thus established.

25. In view of the above discussion,
the fact that the deceased Devendra Singh
was engaged as a driver on contractual
basis was not relevant.

26. The said Devendra Singh was
thus employed under a contract of
employment in the capacity of driver.

27. Therefore, the said Devendra
Singh was covered within the definition
of "workman" as defined in clause (n) of
sub-section (1) of Section 2 of the W.C.
Act, read with Item (xxv) of Schedule II
to the said Act.

28. It has been established on record
that the said Devendra Singh sustained
injuries while driving the aforesaid Bus,
and he died on account of the said
injuries. Therefore, the death of the said
Devendra Singh took place on account of
the injuries sustained by him by accident
arising out of and in the course of his
employment with the respondent no.2.

29. In the circumstances, we are of
the
opinion
that
the
Workmen's
Compensation
Commissioner
was
justified in awarding compensation to the
claimant-respondent no. 1 on account of
the death of the said Devendra Singh in
the aforesaid accident.

30. As regards the findings recorded
by
the
Workmen's
Compensation
Commissioner, the same have been
recorded on a consideration of the
evidence on record. No illegality or
2 All] P.B.R. No. 1326/2006 Mahtab Khan V State of U.P. and others
705
perversity has been shown in the said
findings.

31. In view of the above discussion, we
are of the opinion that no substantial question
of law is involved in the present Appeal. The
Appeal is, therefore, liable to be dismissed,
and the same is accordingly dismissed.

32. However, on the facts and in the
circumstances of the case, there will be no
order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2010

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 1882 of 2007

P.B.R. No. 1326/2006 Mahtab Khan

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Sudhakar Pandey

Counsel for the Respondents:
Sri Vijendra Singh
C.S.C.

Constitution of India Art.-226-Cancellation
of Candidature- Petitioner fairly disclosed in
his application regarding pendency of
Criminal Case-appointment on post of
constable-on verification due to criminal
cases
candidature
cancelled-subsequent
fair acquitted-shall be presumed never
involved any criminal case-entitled for fresh
consideration for appointment-accordingly
direction issued.

Held: Para 12

However, in view of the subsequent
development
which
indicates
an
advantage in favour of the petitioner, in
my opinion, requires the matter to be
reconsidered in the light of the order of
acquittal. The petitioner after having
been acquitted will be presumed to have
never been involved in any criminal case.
A perusal of the judgement indicates
that it was a clean acquittal. The stain
having been erased on a judicial verdict
by the competent court washes out the
effect of involvement. This has to be
viewed from another angle. A person if
falsely implicated runs the risk of losing
the opportunity to get a job and it is here
that injustice should not be allowed to
dislodge an otherwise valid claim.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard learned counsel for the
petitioner Sri Sudhakar Pandey and the
learned Standing Counsel.

2. Affidavits have been exchanged
between the parties and therefore the matter
is being disposed of finally at this stage.

3. The petitioner having been selected
as a constable for being appointed in the
Uttar Pradesh Police Services was subjected
to police verification. His verification report
was received to the effect that the petitioner
was involved in a criminal case prior to his
selection and therefore such involvement
does not entitle him to seek employment in
the police services. Accordingly, his
candidature was cancelled. The petitioner
made a representation which was not being
considered as a result whereof he filed writ
petition No. 69759 of 2006 which was
disposed of on 20th December, 2006 to
examine the claim of the petitioner and pass
an appropriate order.

4. In compliance of the aforesaid
direction the impugned order dated 5th