IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 457 of 2019 Date of decision: 20.11.2025. National Insurance Co. Ltd. …Appellant versus Alka Devi & others …Respondents. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the appellant : Mr. Deepak Bhasin, Sr. Advocate with Mr. Sambhav Bhasin, Advocate. For the respondents : Mr. Nitin Thakur, Advocate, for respondents No. 1 to 4. Ms. Shalini Thakur, Advocate, for respondent No.5. Satyen Vaidya, Judge (oral): This instant appeal has been filed under Section 30 of the Employees Compensation Act, 1923 (for short the ‘Act’) against the award dated 26.4.2019, passed by the learned Commissioner, (Employees Compensation), Nadaun, District Hamirpur, H.P. in Case No. 01 of 2015. 2. The appellant/insurer has been directed to satisfy the award by payment of compensation to the tune 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- of Rs. 6,72,490/- along with interest at the rate of 12% from 13.4.2015 and Rs. 5000/- towards funeral charges. In addition, the appellant/insurer has also been fastened with liability to pay penalty of Rs. 67,249/-. 3. A claim petition was filed under Section 22 of the Act by respondents No. 1 to 4 (hereinafter referred to as the claimants) for grant of compensation on account of death of Ajay Kumar, who was stated to be an employee of respondent No.5. It was alleged that Ajay Kumar was employed to drive Tractor No. HP-55A-1202, owned by respondent No.5. On 13.3.2015, the said tractor had met with an accident and at the time of accident, the tractor was being driven by Ajay Kumar, during the course of his employment with respondent No.5. 4. Respondent No.5 (owner of the vehicle) filed his reply. The averments, as made in para-11 of the claim petition, wherein the deceased was alleged to be the driver of the tractor, owned by respondent No.1, were admitted. As regards the reply to other averments in the petition, respondent No.5 had maintained a vague and cryptic stand. -3- 5. The appellant/insurer filed its separate reply. Objection as to the maintainability of the petition was raised. The existence of policy of insurance in respect of the tractor No. HP-55A-1202 was also disputed. It was alleged that the deceased was not employed with respondent No.5. Plea as to esttopel and collusion was also raised. In this manner, the appellant/insurer had pleaded to absolve itself from liability to indemnify the owner of the vehicle. 6. Learned Commissioner had framed the following issues:- “1. Whether the respondent No.2 is liable to indemnify the petitioners being insurer of the vehicle of the respondent No.1? OPA. 2. Whether deceased has no valid and effective driving license to drive the accidental tractor? OPR- 2. 3. Whether this petition is not maintainable, as alleged? OPR-2. 4. Relief?” Issue No.1 was answered in affirmative, whereas all other issues were answered in negative. The claim -4- petition was allowed and compensation, as noticed above, was awarded. 7. The instant appeal was admitted by this Court on 18.10.2019 on the following substantial questions of law:- “1. Whether the award of the Commissioner suffers from illegality and is unsustainable in the absence of necessary issues and findings? 2. Whether the Commissioner has erred while adjudicating the claim in absence of any pleadings, evidence and material brought on record qua employer-employee relationship and accident occurring during the course of employment? 3. Whether the Insurance Company is still liable to pay compensation when the vehicle was being permitted to be plied by its employer in utter violation to the terms and conditions of the Insurance Policy? 4. Whether the Ld. Commissioner was justified in awarding the penalty in the absence of any contract or statutory provision empowering him to do so?” 8. I have heard learned counsel for the parties and have also gone through the record carefully. 9. Mr. Deepak Bhasin, learned Senior Counsel representing the appellant/insurer has contended on the basis of substantial questions No. 1 and 2, as noticed -5- above, that the relationship of employee and employer was not established between the deceased and respondent No.5 herein. He also pointed out that the learned Commissioner had omitted to frame a specific issue in this regard and hence the impugned award is vitiated. 10. Having gone through the record, I do not find any substance in the contention, so raised by the appellant /insurer. The owner of the vehicle, impleaded as respondent No.1 before the learned Commissioner, in his reply had not made a specific denial as regards his relationship with the deceased to be that of employee and employer. Rather, as noticed above, in its reply to para-11, the said respondent had unambiguously written “admitted”. It is also not revealed from the record that at any stage of the proceedings before the learned Commissioner, the respondents had pressed their claim to frame an issue as to relationship of employee and employer between owner of the vehicle and the deceased. Further, no evidence has been led by the respondents to that effect. Thus, the appellant/insurer cannot be allowed to raise the issue at the stage of appeal. The substantial questions of -6- law No. 1 and 2 are accordingly answered against the appellant/insurer. 11. As regards substantial question No.3, again the appellant/insurer has not led any evidence and thus, the findings returned by the learned Commissioner cannot be faulted. 12. Lastly, Mr. Bhasin, learned Senior Counsel has argued that the liability to pay the penalty, as imposed by the learned Commissioner could not be imposed on the appellant/insurer, as it would be the liability of the owner. The contention so raised deserves to be sustained in terms of settled legal position. Reference can be made to the judgment passed by the Hon’ble Supreme Court in Ved Prakash Garg vs. Premi Devi & others, 1997 (8) SCC-1. In such view of the matter, substantial question No.4 is answered in favour of the appellant/insurer. 13. In result, the appeal is partly allowed. The appellant/insurer is absolved from liability to pay the amount of penalty. The rest of the award remains undisturbed. The amount of penalty, as imposed by the -7- learned Commissioner shall be paid by the owner of the vehicle to the claimants. 14. The appeal is disposed of accordingly. Pending applications, if any, also stand disposed of. Record be sent back forthwith. (Satyen Vaidya) 20th November, 2025 Judge (kck)