( 2025:HHC:26224 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 515 of 2015. Reserved on: 24 th July, 2025. Decided on : 5 th August, 2025. New India Assurance Company Ltd. .... Appellant. Versus Bimla Devi & Ors. ....Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes. For the Appellant: Mr. Praneet Gupta, Advocate. For the respondents: Mr. Virender Sharma, Advocate, for respondents No.1 and 2. Respondents No.3(i) to 3(iii) and 4 are ex-parte. Mr. P.P. Chauhan, Advocate (through V.C.) and Ms. Tara Devi, Advocate for respondent No.5. Satyen Vaidya, Judge. This appeal has been filed by the insurer-New India Assurance Company Ltd., under Section 30 of the Employees Compensation Act, 1923 (for short “the Act”) against the Award dated 03.03.2014 passed by the learned Civil Judge (Sr. Division, (I) Shimla H.P. (Exercising the power of 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:26224 ) Commissioner, Employee’s Compensation, under the Employees Compensation Act)( for short, “the Commissioner”) in W.C. Petition No. 7/2 of 2011/06, whereby respondents No.1 and 2 (hereinafter referred to as the “claimants”) have been awarded compensation of Rs.8,42,420/- along with interest @ 12 % per annum. 2. The son of claimants, named Narinder, died on 08.07.2006 as a result of motor vehicle accident involving vehicle No. HP-01H-2774. Deceased Narinder himself was driving the vehicle at the time of accident. 3. The vehicle was registered in the name of original respondent No.3, Yashoda Devi, who is now succeeded by respondents No.3(i) to 3(iii) as she died during the pendency of these proceedings. 4. The claimants filed a claim petition under Section 22 of the Act before the Commissioner, Shimla, alleging inter alia that deceased Narinder was working as driver with Yashoda Devi, who further had engaged her vehicle with Tigaksha Pvt. Ltd. (hereinafter called Tigaksha for brevity). It was claimed that deceased Narinder had died as result of injuries suffered by him in an accident arising out of and in the course of his employment with Yashoda Devi and Tigaksha. As per claimants, the deceased was being paid 3 ( 2025:HHC:26224 ) monthly salary of Rs.5,000/- besides Rs.100/- per day as daily allowance. 5. The claimants further pleaded that they were completely dependent upon deceased Narinder and thus claimed compensation. 6. Yashoda Devi did not choose to contest the petition and she did not appear despite service of notice. Accordingly, the proceedings before Commissioner were taken ex-parte against Yashodha Devi. 7. Tigaksha, in its reply had taken an objection that the petition was bad for non-joinder of necessary parties as Deepak Kumar was the owner of vehicle No. HP-01H-2774 in terms of agreement dated 07.04.2006 executed between the Yashoda Devi and Deepak Kumar. It was further stated that in terms of another agreement dated 01.4.2006 executed by Tigaksha with Deepak Kumar, the vehicle (Tata Sumo) was to be provided by Deepak Kumar to Tigaksha for day-to-day work. It was further submitted that the driver of Tata Sumo vehicle was to be employed by Deepak Kumar and It was his responsibility to pay the salary of the driver and to keep the vehicle in running condition. In lieu of engagement of vehicle by Deepak Kumar with Tigaksha, he was to be paid Rs.24,000/- per month for distance of 3000 kilometers and 4 ( 2025:HHC:26224 ) thereafter Rs.6/- per kilometer was to be paid for running the vehicle in excess 3000 kilometers. Tigaksha specifically denied relationship of employer and employee with deceased Narinder. 8. On the application of claimants under Order 1 Rule 10 of the Code of Civil Procedure, respondent No.5 herein, Deepak Kumar was added as respondent No.4 in the original petition vide order dated 16.11.2007 passed by learned Commissioner. 9. As per the stand of the Tigaksha, deceased Narinder was the employee of Deepak Kumar. The factum of vehicle being insured with the insurer at the time of accident was also disclosed. 10. Deepak Kumar filed his separate reply. He submitted that at the time of accident, the vehicle was in the control of Tigaksha and was being driven by the driver, who had not been engaged by him. An allegation was levelled that Tigaksha had deputed deceased Narinder to drive the vehicle at its own. The factum of existence of agreement between the Tigaksha and Deepak Kumar for providing a Tata Sumo vehicle was not denied. 11. Deepak Kumar had categorically admitted that he had purchased the vehicle from Yashoda Devi vide agreement 5 ( 2025:HHC:26224 ) dated 07.04.2006 and he had provided the vehicle to Tigaksha. It was also stated by respondent Deepak Kumar that he had employed one Ashwani Kumar as driver to drive Tata Sumo vehicle provided to Tigaksha. He further submitted that as per the terms of the agreement, in case of non-availability of driver provided by Deepak Kumar, Tigaksha was required to call upon Deepak Kumar for making alternative arrangement. He alleged that Tigaksha had permitted the vehicle to be driven by deceased Narinder without his knowledge and consent and without verifying the driving licence of the deceased. In this manner, Deepak Kumar tried to absolve him from all liabilities. 12. The insurer filed its reply and raised objection that the vehicle at the time of accident was being driven by a person not having a valid and effective driving licence. It was stated that the claimants had not supplied the particulars of insurance policy. Rest of the averments made in the claim petition were also denied in generality. 13. Learned Commissioner framed the following issues:- “1) Whether the deceased workman died during the course of employment under the respondents dated 08.07.2006 while he was 6 ( 2025:HHC:26224 ) driving the vehicle No. HP-01H-2774, as alleged?OPP. 2) Whether the claimants are entitled for the claim as alleged and if the issue No.1 provided in affirmative, then from whom and what amount of compensation they are entitled for? OPP. 3) Whether the petition is not maintainable as alleged?OPR-2, 3 and 4. 4) Whether the petition is bad for non joinder of necessary parties and proper parties?OPR-3. 5) Whether the deceased was not holding valid and effective driving licence at the time of accident?OPR-2 6) Whether there are breach of terms and conditions of insurance policy?OPR-2. 7) Whether the deceased was travelling in vehicle as gratuitous passenger?OPR-2. 8) Whether the vehicle was under the control of respondent No.3 i.e. M/s Tigaksha Pvt. Ltd. And was being driven by the driver who was not engaged by the respondent No.4?OPR-4. 9) Relief.” 14. Issues No.1 to 3 were decided in affirmative and rest of the issues were answered in negative. Petition was allowed and compensation, as noticed above, was awarded in favour of the claimants. 15. I have heard the learned counsel for the parties and have also gone through the entire record carefully. 16. Learned counsel for the insurer would contend that since, the claimants had failed to produce and prove driving 7 ( 2025:HHC:26224 ) licence of deceased Narinder, thus, in absence of such material fact, learned Commissioner had erred in fastening the liability on the insurer. He further contended that insurer, in the instant case, could not have been held liable to satisfy the award as the vehicle stood transferred without its consent and in such circumstances, the insurer had no privity of contract either with Tigaksha or Deepak Kumar. 17. The claimants examined (PW-3) Claimant Sehaj Ram as one of their witnesses, who had tendered his examination-in-chief by way of affidavit. The contents of the claim petition were reiterated. He had stated that though registered owner of the vehicle was Yashoda Devi but it was under the control of Tigaksha and deceased was on duty as a driver in the said vehicle at the time of accident. He had further deposed that deceased Narinder also used to be called by respondent Deepak Kumar telephonically for plying the vehicle. He also disclosed that after the accident Yashoda Devi, Deepak Kumar and employee of Tigaksha had visited their house and assured that they would be suitably compensated. This witness further stated that deceased Narinder Kumar was having valid and effective driving licence at the time of accident but the same was not found after the accident and probably it was destroyed in the accident. As 8 ( 2025:HHC:26224 ) per this witness, deceased Narinder used to drive the vehicle of one Vinay Sharma for 2-3 years prior to his engagement on vehicle No. HP-01H-2774. 18. PW-3 was cross-examined by the insurer. In his cross-examination by insurer the witness had admitted that when the accident took place deceased Narinder was working for Tigaksha. A suggestion was also put to PW-3 by counsel for the insurer that after working hours, deceased used to park the vehicle in the compound of Tigaksha. Another specific suggestion was put to this witness that whenever deceased used to drive vehicle, it was on the instructions of the employees of Tigaksha. 19. This witness was also cross-examined by Tigaksha and it was suggested that the vehicle belonged to Yashoda Devi and deceased was driving the vehicle of Yashoda Devi. To another suggestion put on behalf of Tigaksha, the witness had feigned ignorance that Tigaksha had taken the vehicle on hire on monthly basis. 20. PW-3 was further cross-examined on behalf of Deepak Kumar. In cross-examination PW-3 stated that he could not tell whether the owner of the vehicle was Yashoda Devi or Deepak. He admitted a suggestion that the deceased used to drive the vehicle on the instructions of the company 9 ( 2025:HHC:26224 ) (Tigaksha) and on the date of accident also he was driving the vehicle at the instance of the company. 21. The claimants also examined one Vinay Sharma as PW-2. According to him, deceased had been employed by him to drive his taxi in the year 2004. He had further deposed that deceased was having valid and effective driving licence and the duration of employment of deceased with this witness was 4 to 5 years. 22. PW-6 Ramesh Kumar, Clerk from the office of Regional Transport Office, Hamirpur was examined by the claimants to prove that at the time of accident vehicle No. HP- 01H-2774 was registered in the name of Yashoda Devi. 23. Deepak Kumar examined himself as RW-1. He stated that he had purchased the vehicle from Yashoda Devi vide agreement Ex.RW1/A and he had further rented on hire the said vehicle to Tigaksha vide agreement dated 01.04.2006 marked as “Mark Rx”. He reiterated that one Ashwani Kumar was employed as driver to drive the vehicle and deceased Narinder Kumar was not his driver. He further stated that on the date of accident Narinder Kumar was not authorised by him to drive the vehicle and Tigaksha had allowed Narinder Kumar to drive the vehicle without his consent. In cross-examination, this witness stated that he 10 ( 2025:HHC:26224 ) had given the vehicle on hire to Tigaksha for one year. He had also admitted that he was the owner of the vehicle. 24. While being cross-examined by learned counsel for the insurer, he admitted that he had not produced the driving licence of Ashwani Kumar. 25. The witness was also cross-examined on behalf of the claimants. He stated that he did not remember that as to who was the driver of the vehicle when the same was purchased from Yashoda Devi. 26. The other respondents including insurer did not produce any evidence. 27. Consequently, the fact as has indubitably emerged on record is that the driving licence held by deceased Narinder Kumar could not see the light of the day. The claimants had shown their inability to produce the document for the reason that they could not find it after the accident and it was guessed that it might have been destroyed in the accident; as the vehicle had rolled down into gorge resulting in death of Narinder. 28. On the other hand, neither Tigaksha nor the insurer came forward to prove that they had made any attempt to explore as to whether the deceased was having any driving licence at the time of accident? 11 ( 2025:HHC:26224 ) 29. Other facts as have undeniably emerged are that vehicle at the time of accident was registered in the name of Yashoda Devi. Deepak Kumar had admitted to have purchased the vehicle vide agreement Ex.RW1/A from Yashodha Devi. Similarly, the vehicle at the time of accident was being used by Tigaksha has also been established. 30. The claimants had stated that deceased Narinder was employed by Yashoda Devi and the vehicle was further given on hire to Tigaksha. The claimants came to know about the involvement of Deepak Kumar when the reply was filed by Tigaksha taking a specific objection as to non impleadment of necessary party i.e. Deepak Kumar. Deepak Kumar had not only admitted to have purchased the vehicle from Yashodha Devi, he also had categorically maintained that he had given the vehicle on hire to Tigaksha. 31. Thus, the fact of the matter remains that the vehicle was on hire with Tigaksha and the Tigaksha had not denied having authorised deceased Narinder to drive the vehicle. Rather, their stand in reply was that deceased Narinder was the driver employed by Deepak Kumar. 32. As per the definition of “employee” in Section 2(dd) of the Act, a person recruited as driver falls within the scope of such definition. As per Section 2(e) of the Act, the 12 ( 2025:HHC:26224 ) employer included such person also to whom the services of an employee are temporarily lent or let on hire by the person with whom the employee has entered into a contract of service. 33. Thus, it can safely be held that since deceased Narinder was proved to be the driver of the vehicle at the time of accident and since, there was no dispute as to vehicle having been given on hire to Tigaksha, the deceased had died on account of injuries suffered by him in the course of his employment. It is immaterial whether he was employed by Yashoda Devi or Deepak Kumar or Tigaksha as the case might have been. It is case of none of the respondents that deceased Narinder had driven the vehicle unauthorizedly. 34. Further, noticeably neither in the pleadings nor by way of evidence, the insurer has been able to prove that the transfer of vehicle from Yashodha Devi to Deepak Kumar was without its consent or that it had no notice about the vehicle having been transferred. Similarly there was no apparent objection of insurer to vehicle being used by Tigaksha after being hired from the owner. Interestingly the insurer has lead no evidence whatsoever before the Commissioner. 35. The next question arises regarding the existence of driving licence of deceased. As noticed above, the licence, 13 ( 2025:HHC:26224 ) if any, had not seen the light of the day. In order to avoid the liability, the insurer had to establish that the owner had violated the terms of policy of insurance by not taking reasonable care in verifying the licence of the driver while employing him for such purpose. Again, neither such a defence has been raised in the pleadings nor any evidence has been produced. In such circumstances, the fact that the driving licence, if any, held by deceased had not seen the light of the day takes back seat, more particularly, in the peculiar facts of the case, where the claimants also cannot be said to have suppressed or withheld a fact within their knowledge. In normal circumstance, the claimants were not supposed to hold a copy of the driving licence held by their son. The possibility that driving licence might have been destroyed in the accident also cannot be ruled out. 36. Learned Commissioner has also drawn adverse inference against the insurer for not having taken any steps to discharge the burden of proving breach of conditions of the policy. 37. Interestingly, insurer has not even produced the copy of the insurance policy which governed its relation with the insured. The reasons are unexplained. It is not the case of the insurer that the vehicle was not insured at the time of 14 ( 2025:HHC:26224 ) accident. In such circumstances, the insurer cannot be allowed to say that terms of the policy were violated, when such terms had not been produced for perusal of the learned Commissioner. 38. Further, it cannot be ignored that the claim was laid by the claimants under the Workmen Employees Compensation Act. Section 3 of the Act deals with employer’s liability for compensation. The said Section provides for certain exceptions and one of such exception is in respect of any injury, not resulting in death, caused by an accident which is directly attributable to willful disobedience of the employee to an order expressly given or to a rule expressly framed for the purpose of securing the safety of employees. As a necessary corollary, no such exception is there where the injury results in death, as in the case in hand. Even otherwise, the statutory liability of insurer under Section 147 of the Motor Vehicles Act, 1988 extends to the liability under the Workmen Compensation Act in respect of death of an employee engaged in driving the vehicle. The expression “engagement to drive the vehicle” has different connotation that the employee specifically employed to drive the vehicle. It means that even if an employee is not specifically employed to drive the vehicle still would be entitled for 15 ( 2025:HHC:26224 ) coverage under the Employees Compensation Act in case he dies while engaged for driving the vehicle. 39. In light of above discussion, I do not find any question much less a substantial question of law requiring adjudication from this court in the given facts and circumstances. 40. In result, no interference with the impugned award passed by the learned Commissioner is required. Accordingly, the appeal fails and the same is dismissed with no order as to the costs. Pending applications, if any, also stand disposed of. 41. Records be sent back forthwith. (Satyen Vaidya) Judge 5th August, 2025. (jai)