2025:HHC:35601 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 41 of 2023 Reserved on: 19th June, 2025 Date of decision: 28th October, 2025 ICICI Lombard General Insurance Co. …Appellant Versus Raj Kumari and others …Respondents Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? For the Appellant: Mr. Jagdish Thakur, Advocate. For the Respondents: Mr. Surinder Saklani, Advocate, for respondents No.1 to 3. Mr. Vikrant Chandel, Advocate for respondent No.4. Mr. Ajay Chandel, Advocate, for respondents No.5 and 6. Vivek Singh Thakur, Judge The appellant-Insurance company, invoking Section 30 of the Employee’s Compensation Act (in short ‘EC Act’), by filing present appeal, has assailed Award dated 31.8.2022, passed by the Senior Civil Judge, Sarkaghat, District Mandi, exercising the powers of the Commissioner under EC Act, in Claim Petition No. 5/2015 titled Raj Kumari & others vs. Gur singh and others, whereby the appellant- Insurance Company has been directed to pay compensation of Rs.7,68,560/- to the claimants (respondents No.1 to 3 herein) with 2 2025:HHC:35601 interest at the rate of 12% per annum w.e.f. 17.2.2014 (one month after occurrence of accident) till deposit of the same and also to pay Rs.1 lac as penalty under EC Act. 2 Parties to this appeal shall be referred as per their status in claim petition, for convenience. 3 I have heard learned counsel for parties and have gone through the record. 4 Claimants are wife and children of deceased Pawan Kumar who died on account of multiple injuries suffered in motor accident while he was driving vehicle/car No. HP-33C-0528 on 18.1.2014. 5 As per claimants, deceased Pawan Kumar was employee of respondent No.3 M/s Jyoti Abhushan Bhandar whereas car involved in accident was owned by respondent No.1 Gur Singh. Respondent No.2 Ajay Kumar was friend/relative of respondent No.1 Gur Singh and relative of proprietor of respondent No.3 M/s Jyoti Abhushan Bhandar (Gold and Silver Jewellers). Deceased Pawan Kumar was employed with respondent No.3 as driver-cum-Karigar (skilled worker). 6 From the material on record, it transpires that according to claimants, on 18.1.2014, respondent No.2 Ajay Kumar Incharge of car HP-33C-0528 borrowed by him from respondent No.1 Gur Singh and services of deceased Pawan Kumar were lent by respondent No.3 to respondent No.2 Ajay Kumar for visiting Marhi, and in return 3 2025:HHC:35601 journey at about 7.30 PM, when they reached near Shiv Temple Bardana, the car met with accident due to sudden mechanical fault resulting into the death of deceased Pawan Kumar on the spot. 7 After the accident, FIR No. 15 dated 18.1.2014 Mark X was registered in Police Station Sarkaghat. Postmortem of deceased Pawan Kumar was conducted. Postmortem report Ext.AW1/B, is on record wherein head injury has been mentioned as cause of death of deceased. 8 Deceased Pawan Kumar was having valid driving licence to drive Light Motor Vehicles CAB w.e.f. 13.7.1999. PSVBUS w.e.f. 17.6.2002 and the driving licence to drive transport vehicle was valid upto 19.8.2014, photocopy whereof has been proved on record as Ext.AW2/A. Vehicle/car involved in the accident was insured with respondent No. 4 Insurance Company i.e. ICICI Lombard General Insurance vide Private Car Package Policy, Certificate-cum-Policy Schedule whereof is Ext.R1/RW1 which was valid from 12.11.2013 to 11.11.2014. Car involved in accident was duly registered vide Valid Registration Certificate Ext.R3/RW1 which was valid upto 26.10.2026. 9 Claim petition has been preferred with aforesaid facts for claiming compensation amounting to Rs. 10 lacs with assertion that 37 years old deceased Pawan Kumar was getting monthly wages at the rate of Rs.9000/- per month, and he was having valid driving licence, and he expired in the accident arising out of and in the course of employment as respondent No.2 Ajay Kumar, at the time of 4 2025:HHC:35601 accident for borrowing vehicle from respondent No.1 Gur Singh and services of deceased Pawan Kumar from respondent No.3 Jyoti Abhushan Bhandar, was acting as and on behalf of owner of the vehicle as well as and on behalf of employer of deceased Pawan Kumar. 10 Claim petition preferred by respondents was contested by respondents by filing reply . After completion of pleadings issues were framed on 16.4.2018. Thereafter, parties were given opportunity to lead evidence. 11 Claimants examined two witnesses. Claimant Raj Kumari (wife of deceased Pawan Kumar) was examined as AW1 who filed her examination-in-chief in evidence by way of affidavit Ext.AW1/A. She has proved on record the postmortem report Ext.AW1/B, and copy of death certificate Ext.AW1/C, and has placed on record the copy of FIR Mark X and copy of driving licence of deceased Pawan Kumar Mark Y. 12 Amit Kumar Licence Clerk of RLA Sarkaghat, was examined as AW2, who, on the basis of record related to driving licence, produced by him, has proved driving licence Ext.AW2/A (Mark Y) on record. 13 Respondent No.2 Ajay Kumar examined himself as RW1. Respondent No.1 Gur Singh examined himself as RW2 by filing his examination-in-chief on affidavit Ext.R1/Ext.RW2/A. He proved on record the copy of Insurance Policy/Insurance Schedule 5 2025:HHC:35601 Ext.R2/Ext.RW1 and copy of Registration Certificate of car Ext.R3/Ext.RW1. 14 No evidence has been led on behalf of respondent No.3 M/s Jyoti Abhushan Bhandar or its proprietor or even on behalf of respondent No.4 Insurance Company. 15 After considering the material on record, Commissioner Employee’s Compensation has allowed the petition, awarded the compensation and imposed penalty as referred supra. 16 Present appeal, preferred by Insurance Company, was admitted on 1st March, 2023 on the following substantial questions of law:- “1. Whether the learned Commissioner below has erred in directing the appellant to pay compensation in the absence of employee and employer relationship between the deceased and respondent No.4? 2. Whether the learned Commissioner below has erred in taking income of deceased as Rs.8000/- per month despite of having admitted by respondent No.6 as Rs.6000/- per month in his reply to claim petition and whether income/wages fixed by Central Government vide notification dated 31.5.2010 is to be taken as base/minimum income of the deceased? 3. Whether learned Commissioner below has misinterpreted and misconstrued the evidence led by parties? 4. Whether appellant being insurer is liable to pay penalty as per law laid down by this Hon’ble Court as well as by the Hon’ble Apex Court?” 6 2025:HHC:35601 5. Whether the award passed by the learned Commissioner is legal in the absence of any notice as provided under section 21 of the Employee’s Compensation Act? 17 Registered owner of car Gur Singh appearing as witness (RW2) in his examination-in-chief by way of affidavit Ext.R1/RW2/A, has admitted the ownership of vehicle with assertion that at the time of accident vehicle was being driven by the driver having a valid driving licence, and all essential and required documents, to ply the vehicle, were valid on the date of accident and he was not liable to pay any compensation and in any case, if any compensation would be payable, the Insurance Company would be liable to pay the same. Apart from proving the Insurance Policy and Registration Certificate of vehicle, he, in his cross-examination, has admitted that 2/3 days prior to the accident his relative/respondent No.2 Ajay Kumar had borrowed the vehicle from him with further deposition that vehicle was normally used by respondent No.2 Ajay Kumar and he had been driving the said vehicle but respondent No.2 was not engaged/employed as driver by him. Vehicle was handed over to respondent No.2 by him because respondent No.2 was his relative, and respondent No.2 was also having driving licence. He has stated that he was not acquainted with deceased Pawan Kumar nor he had employed him as driver nor he had been paying salary to deceased Pawan Kumar. However, he has admitted that at the time of 7 2025:HHC:35601 accident, Pawan Kumar was driving the vehicle who was having driving licence to drive the same. 18 Respondent No.2 Ajay Kumar in reply has admitted the ownership of vehicle with respondent No.1 Gur Singh, occurrence of accident on 18.1.2014 and injuries suffered by Pawan Kumar in said accident. However, he has denied the claim that accident was arisen out of/in the course of employment of deceased Pawan Kumar with him. He has also admitted that at the time of occurrence of accident, he along with deceased Pawan Kumar was travelling in vehicle/car in reference. Though in reply he has denied the relationship with respondent No.1 and user of vehicle by him as representative of respondent No.1, however, while appearing as RW1 in evidence, he has admitted that on the day of accident, he was using the vehicle of respondent No.1 by borrowing it from him (respondent No.1) and he (respondent No.2) was incharge of vehicle on the day of accident and on arriving at Sarkaghat he had hired services of deceased Pawan Kumar to visit Marhi and come back from his relative who was proprietor of respondent No.3 and Pawan Kumar was employed as driver with respondent No.3 and he took services of Pawan Kumar driver and while they were returning, the accident took place near Shiv Temple Bardana. In cross-examination he has disclosed that proprietor of respondent No.3 was his cousin being son of sister of his father. Though he has also stated that deceased Pawan Kumar was not his employee and he was not having personal acquittance with 8 2025:HHC:35601 Pawan Kumar but he has self stated that Pawan Kumar was employee of respondent No.3. He has further deposed that he was using the vehicle; with consent of owner of vehicle, respondent No.3 is in business of gold having 5-7 vehicles; and he has denied the suggestion that deceased Pawan Kumar was not driver by profession and was not having valid driving licence. He has also deposed that he had gone to Marhi on account of his personal work. Though he has admitted that he had filed reply by putting his signatures thereon but has expressed his ignorance that his deposition in Court as witness was contrary to stand taken in reply. He has denied that his deposition in Court was incorrect. 19 Reply has also been filed on behalf of respondent No.3 wherein driving of vehicle on the day of accident by deceased Pawan Kumar and ownership of said vehicle with respondent No.1 has been admitted but it has been denied that accident occurred arising out of in the course of employment of deceased, and it was claimed in reply that on 18.1.2014 deceased Pawan Kumar was on half day leave sanctioned by respondent No.3. It was also admitted that deceased was employee of respondent No.3 with submission that he was getting Rs.6000/- per month as monthly salary. However, no evidence has been led on behalf of respondent No.3. 20 Respondent No.4 Insurance Company has taken all usual defences to refute the claim petition by stating that there was no relationship of employee and employer between the deceased and 9 2025:HHC:35601 respondent No.1, including objection that no mandatory notice under EC Act was served, and documents of vehicle were required to be verified and on the day of accident, vehicle was driven by a person not having valid and effective driving licence and, therefore, for breach/violation of terms of policy qua driving licence there was no liability of respondent No.4 Insurance Company to pay the compensation, if any. Claim of claimants with respect to income of deceased was also denied for want of proof. 21 Like respondent No.3, respondent No.4 Insurance Company has also not led any evidence to substantiate the plea taken in reply. 22 It is settled law that admissions are not required to be proved by opposite party by leading evidence whereas pleadings without evidence as well as evidence for want of pleadings is of no help to the party in default or otherwise either for want of pleadings or for want of leading evidence in support of each other. Respondent No.4 has not led any evidence to substantiate its objections for denying the compensation and, therefore, pleadings of respondent No.4 in reply are of no help to respondent No.4. 23 Respondent No.3 in reply has admitted that deceased Pawan Kumar was employee of respondent No.3 by making statement that on the day of occurrence he was on half day leave and also accepting that he was getting monthly salary from respondent No.3, though with claim that it was Rs.6000/- instead of 10 2025:HHC:35601 Rs.9000/- per month. Therefore, relationship of employment of respondent No.3 as claimed in claim petition has been admitted by respondent No.3. This relationship has also been admitted by respondent No.2 in his deposition in the Court with further admission that services of deceased Pawan Kumar were hired by him and lent by respondent No.3 to him, on the day of accident, for driving the vehicle involved in the accident and this fact has not been controverted by respondent No.4 by leading any evidence. Therefore, the employment of deceased Pawan Kumar with respondent No.3 and lending of his services by respondent No.3 to respondent No.2 have been duly proved on record. Therefore, at the time of accident, respondent No.2 had entered in the shoes of respondent No.3 as an employer of deceased Pawan Kumar on behalf of respondent No.3. The claim of employment of deceased Pawan Kumar as driver-cum- worker with respondent No.3 also stands duly proved and at the time of accident, he was driving the vehicle in reference under control of respondent No.3 but through respondent No.2. Therefore, relationship of employee and employer with respondent No.2 at the time of occurrence of accident in furtherance to the employment of deceased with respondent No. 3 has been duly established on record. 24 Vehicle involved in accident was owned by respondent No.1 Gur Singh. From the pleadings of claim petition, evidence led by claimants and also stand taken in reply of respondents No.1 and 2 and deposition of these respondents in Court as RW1 and RW2 it 11 2025:HHC:35601 stands duly established on record that vehicle involved in accident owned by respondent No.1 Gur Singh was being used by respondent No.2 by borrowing the same from respondent No.1 and therefore, respondent No. 2 had entered in the shoes of respondent No.1 as owner of vehicle and at the time of accident, he was incharge of vehicle acting on behalf of and in the capacity of registered owner of vehicle. Therefore, respondent No.2 had acquired the status of owner of vehicle involved in accident at the relevant point of time. The services of Pawan Kumar were lent to him on his request by employer of Pawan Kumar and, therefore, Pawan Kumar was performing his duty as driver being an employee of respondent No.3 but by providing services to respondent No.2 under instructions and control of respondent No.3. Nothing contrary has been established on record to refute the aforesaid facts pleaded in plaint, proved from the pleadings as well as evidence led on record. 25 Claimant Raj Kumari was subjected to cross-examination on behalf of respondents but nothing material could be elucidated in her cross-examination to demolish her claim preferred in claim petition, rather, it stands substantiated that deceased Pawan Kumar was serving as driver-cum-worker with respondent No.3 and he was getting salary of Rs.9000/- per month and he was not on leave on the day of occurrence on account of personal work. The record produced by AW2 Amit Kumar and proving the driving licence Ext.AW2/A of deceased Pawan Kumar has not been disputed by any of respondents 12 2025:HHC:35601 as this witness was not cross-examined despite granting opportunities. 26 Claimants have pleaded the income of deceased Pawan Kumar as Rs.9000/- per month as driver-cum-worker of respondent No.3. In response thereto, in reply of respondents No.1, 2 and 4, though there is denial of this fact for want of knowledge, but nothing contrary has been proved on record. Though respondent No.3 owner has stated in reply that deceased Pawan Kumar was getting Rs.6000/- per month, however, no-one has come forward to appear on behalf of respondent No.3 to substantiate this claim nor any documentary evidence has been placed on record to prove this fact. There is neither oral deposition nor any documentary evidence to rebut the claim of claimants about earning Rs.9000/- as driver-cum-worker of respondent No.3 much less to substantiate the plea taken in reply that he was getting only Rs.6000/- per month. In cross-examination conducted on behalf of respondent No.2, AW1 Raj Kumari has categorically stated that her husband was earning Rs.9000/- per month as driver and worker. She has denied that her husband had availed leave for his personal work on the day of occurrence of accident. No convincing material has been placed on record either in her cross-examination or even otherwise to rebut the earning of deceased Pawan Kumar as Rs.9000/- per month. Therefore, claim of appellant that it was duly proved on record that deceased Pawan Kumar was getting Rs.6000/- per month but not Rs.9000/- per month 13 2025:HHC:35601 salary from respondent No.3 is without any force. Though it has been claimed that respondent No.3 had admitted that deceased Pawan Kumar was getting Rs.6000/- per month salary however the plea of appellant in this regard is misconceived as the admission is always of the fact stated by opposite party and here the claimants are claiming earning at the rate of Rs.9000/- per month and respondent No.3 in evidence has stated it as Rs.6000/- per month. Therefore, it is not admission but is an assertion to rebut the claim of claimants but for want of cogent and reliable evidence to substantiate this plea, this plea is of no help to appellant. It is not a case where claimants claimed monthly income at the rate of Rs.6000/- which was admitted by employer but it was a counter claim of employer which remains unproved for want of evidence and reliable material in this regard. 27 In cross-examination, RW2 Gur Singh has admitted that he had received own damage claim from respondent No.4 Insurance Company with respect to damages caused to his vehicle in the accident and at the time of accident, vehicle was being driven by deceased Pawan Kumar who was having valid driving licence. 28 The aforesaid facts clearly depict that respondent No. 4 Insurance Company was well aware about the occurrence of accident because owner of vehicle had received own damage claim from respondent No.4 Insurance Company by supplying the documents including the FIR, Registration Certificate, Insurance and driving licence etc. and it is an admitted fact that at the time of accident 14 2025:HHC:35601 Pawan Kumar was driving the vehicle and his driving licence was also required to be submitted to the Insurance Company for getting own damage claim. Therefore, there was no necessity to issue notice to Insurance Company or other respondents before filing claim petition under EC Act. All respondents were well aware about occurrence of accident as well as about the fact that deceased Pawan Kumar, having the valid driving liucence to drive the vehicle, was driving the vehicle in reference and had died in accident during the course of his employment. 29 In Ved Prakash Garg vs. Premi Devi reported in 1998 ACJ 1; and Chief Manager, Rajasthan State Road Transport Corporation vs. Durga Ram and others reported in 2009 ACJ 2732, it has been held by the Court that Insurance Company is not liable to pay penalty in claim petition filed under WC/EC Act. Therefore, plea of Insurance Company on this issue has force and accordingly, Insurance Company is held not liable to pay the penalty and accordingly, the said liability deserves to be set aside. 30 In view of aforesaid discussion, the substantial questions of law No.1, 2, 3 and 5 are decided against the appellant-Insurance Company whereas substantial question of law No.4 is decided in favour of appellant-Insurance Company. 31 Accordingly, impugned award directing the Insurance Company to pay Rs.7,68,560/- along with interest @ 12% interest per annum from the date after one month from the date of accident is 15 2025:HHC:35601 upheld. However, direction to Insurance Company to pay penalty Rs.1 lac along with interest at the rate of 12% is set aside. The entitlement for funeral expenses to the tune of Rs.5000/- payable by respondent No.1 Gur Singh is also not interfered with as it has not been challenged. 32 The entitlement to receive the compensation as apportioned by Commissioner i.e. 40% to claimant Raj Kumari and 30% each to children of deceased Pawan Kumar is also not interfered with. 33 Accordingly, award stands modified. Appeal is partly allowed and disposed of in aforesaid terms. (Vivek Singh Thakur), Judge. 28th October, 2025(MS)