2026:JHHC:24297 1 M.A. No. 134 of 2018 With C.O. No. 09 of 2022 IN THE HIGH COURT OF JHARKHAND AT RANCHI Miscellaneous Appeal No. 134 of 2018 ------ Divisional Manager, National Insurance Company, Dhanbad Division, having its office at B.P. Agarwala Building, P.O. and P.S. Dhansar, District Dhanbad .... .... …. Appellant Versus 1. Uma Devi, wife of Late Kedar Vishwakarma 2. Munna Vishwakarma, son of Late Kedar Vishwakarma 3. Deepu Vishwakarma, son of Late Kedar Vishwakarma 4. Gautam Vishwakarma, son of Late Kedar Vishwakarma 5. Soni Vishwakarma, daughter of Late Kedar Vishwakarma 6. Pritam Vishwakarma, son of Late Kedar Vishwakarma All residents of Village Jarmune (Mahtotand), P.O. Daludih, P.S. Rajganj, District Dhanbad 7. Santosh Kumar, son of Brij Lal Agarwal, resident of Rajganj, P.O. and P.S. Rajganj, District Dhanbad .... .... .... Respondents With Cross Objection No. 09 of 2022 ------ Mr. Santosh Kumar, aged about 44 years, son of Birju Lal Agarwal, resident of Rajganj, P.O. and P.S. Rajganj, District Dhanbad .... .... …. Petitioner Versus 1. Uma Devi, wife of Late Kedar Vishwakarma 2. Munna Vishwakarma, son of Late Kedar Vishwakarma 3. Deepu Vishwakarma, son of Late Kedar Vishwakarma 4. Gautam Vishwakarma, son of Late Kedar Vishwakarma 5. Soni Vishwakarma, daughter of Late Kedar Vishwakarma 6. Pritam Vishwakarma, son of Late Kedar Vishwakarma All residents of Village Jarmune (Mahotand), P.O. Daludih, P.S. Rajganj, District Dhanbad 7. Divisional Manager, National Insurance Company, Dhanbad Division, having its office at B.P. Agarwala Building, P.O. and P.S. Dhansar, District Dhanbad .... .... .... Opp. Parties CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI In M.A. No.134 of 2018 For the Appellant : Mr. Alok Lal, Advocate For the Res. Nos.1-6 : Mr. Shekhar Prasad Sinha, Advocate Mr. Satyam Kumar, Advocate For the Res. No.7 : Mr. Sabi Uddin, Advocate Mr. Abhishek Abhi, Advocate In C.O. No.09 of 2022 For the Petitioner : Mr. Sabi Uddin, Advocate Mr. Abhishek Abhi, Advocate For the O.P. Nos.1-6 : Mr. Shekhar Prasad Sinha, Advocate Mr. Satyam Kumar, Advocate For the O.P. No.7 : Mr. Alok Lal, Advocate 2026:JHHC:24297 2 M.A. No. 134 of 2018 With C.O. No. 09 of 2022 07/13.08.2026 Heard Mr. Alok Lal, learned counsel appearing for the appellant in M.A. No.134 of 2018 and Mr. Shekhar Prasad Sinha, learned counsel for the claimants/respondent nos.1 to 6 and Mr. Sabi Uddin, learned counsel appearing for the owner/respondent no.7 in appeal and petitioner in cross objection being C.O. No.09 of 2022. 2. This miscellaneous appeal has been preferred under Section 30(1)(a) read with Section 30(1)(aa) of the Workmen’s Compensation Act, 1923 being aggrieved and dissatisfied with the judgment/award dated 31.10.2017 passed by learned Presiding Officer, Labour Court, Dhanbad- cum-Employee Compensation Commissioner in W.C. Case No.33 of 2013. 3. Mr. Alok Lal, learned counsel appearing on behalf of the appellant submits that the compensation was sought by way of filing the petition before the learned Commissioner under the said Act stating that Kedar Vishwakarma was employee of opposite party no.1, who is respondent no.7 in the appeal. The said Kedar Vishwarkarma was working as driver of employer’s vehicle Tata 407 bearing registration no.JH 10A 7541 which was insured with the National Insurance Company Limited and on 04.10.2005, while Kedar Vishwakarma was on duty and driving the said vehicle and was coming from Hazaribag to Rajganj (Dhanbad), at about 5:00 a.m. and when he reached near village Rolla under the jurisdiction of Hazaribagh Sadar Police Station then all of a sudden, the said truck was dashed with trailer no.HR 38F 5217 which was coming from opposite side with high speed and being drove rashly and negligently. As a result, driver of vehicle no.JH 10A 7541, Kedar Vishwakarma got grievous injury and consequently died on spot. In this background, the widow and the children of the deceased Kedar Vishwakarma filed compensation case before the learned Presiding Officer, Labour Court, Dhanbad-cum-Employee Compensation Commissioner. 4. Mr. Alok Lal, learned counsel appearing on behalf of the appellant submits that initially the claimants moved an application under Section 140 of the Motor Vehicle Act, 1988 before the Motor Accident Claim Tribunal, Dhanbad and in the light of provision contained in the said Section, they are able to obtain interim compensation of Rs.50,000/-. He next submits that thereafter they filed another petition under Section 166 of the Motor Vehicle 2026:JHHC:24297 3 M.A. No. 134 of 2018 With C.O. No. 09 of 2022 Act which was disposed of with liberty to file a fresh case before the Workmen’s Compensation Commissioner, Dhanbad. He submits that once a forum has been chosen by the claimants, the Workmen’s Compensation Commissioner has wrongly entertained the petition. He next submits that there is substantial question of law to decide the said appeal. He also submits that in the written agreement, the owner has admitted that only for last four days, the deceased was employed as a driver and in view of that he was a casual employee and in the light of the definition of employee, casual employee is not entitle for compensation under the Employee’s Compensation Act, 1923. He submits that this is substantial question of law to entertain the present appeal. Lastly, he submits that the liability is fastened under the Act upon the owner to pay the compensation within 30 days and if the owner has not paid, the interest is also not be fastened upon the Insurance Company. On these grounds, he submits that this appeal may kindly be entertained and the award may kindly be reversed. 5. On the other hand, Mr. Shekhar Prasad Sinha, learned counsel appearing for the claimants submits that once an application under the Motor Vehicle Act was not simpliciter withdrawal, liberty was obtained by the court to file the compensation case under the Workmen’s Compensation Act and thereafter, it has been entertained. He submits that the matter was not decided on merit and answer to that effect has been rightly given in the award by the Commissioner in para 15 of the impugned award. He also submits that very meagre amount has been awarded to the tune of Rs.2,29,576/- with simple interest @ 6% per annum from filing of the case i.e. 08.08.2013 till the date of actual payment. He submits that in view of that also there is no substantial law point to entertain this appeal and as such this appeal may kindly be dismissed. 6. Learned counsel appearing on behalf of respondent no.7, who is owner of the offending vehicle submits that since the employee was casual employee and only four days prior of the accident was engaged and in view of that finding of learned Commissioner is not correct. He submits that the liability has been also fastened upon the owner which is not in accordance with the law and in view of that, that part of the award may kindly be 2026:JHHC:24297 4 M.A. No. 134 of 2018 With C.O. No. 09 of 2022 modified. 7. So far Cross Objection No.09 of 2022 is concerned, Mr. Alok Lal submits that that is not maintainable as there is no provision of cross objection under the Employee’s Compensation Act, 1923 and to buttress this argument, he relied in the case of Reliance General Insurance Company Limited Vs. Nanhki Devi & Others reported in 2022:JHHC:31556. He submits that co-ordinate Bench of this court has held that in the cases arising out of Employee’s Compensation Act, cross objections are not maintainable. He refers to para 10 and 14 which are as under: 10. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here by now it is a settled principle of law as has been held in the case of National Insurance Co. Ltd. Vs. Tulna Devi & Ors. reported in (2009) ACJ 581, paragraph nos.5 and 21 of which reads as under:- 5. In our view, the case is fully covered by a decision of this Court in the case of National Insurance Co. Ltd. v. Swaran Singh, rendered by a three-Judge Bench of this court reported in 2004 ACJ 1 (SC), wherein this court in para 102 (iii) at page 33 has held as under: “(iii) the breach of policy conditions, e.g. disqualification of driver of invalid driving licence of the driver, as contained in sub-section (2) (a) (ii) of section 149, has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. 21. Having hard the submissions made at the bar and after going through the records, I find force in the submission of learned counsel for the respondent that in view of the ratio of the case of Swarna Singh (supra), in order to absolve itself from the liability of the insurance policies that besides the evidence to establish that the driving licence of the driver of the offending vehicle was fake, it was incumbent upon the Insurance Company to further plead and prove that the insured owner of the offending vehicle was having knowledge of the fact that the driver did not have valid driving licence and even after knowing that the insured owner of the offending vehicle handed over the vehicle for 2026:JHHC:24297 5 M.A. No. 134 of 2018 With C.O. No. 09 of 2022 being driven and in the absence of such evidence, I do not find any force in the submission of the learned counsel for the appellant so far as first ground is concerned. Hence the insurance company is liable to pay the entire amount of the award.” 14. Otherwise also it is a settled principle of law that appeal is a creation of the statute and cross objection has all the trappings of an appeal. As the provisions of the Code of Civil Procedure are not applicable to the appeals or proceedings under the Workmen's Compensation Act, 1923 and there is no provision in the Workmen's Compensation Act, 1923 for filing any cross objection pari materia to the provision in Order XLI, rule-22 of the Code of Civil Procedure, 1908, hence in the considered view of this Court, to cross objection is not maintainable in an appeal filed under Section 30 of Workmen’s Compensation Act, 1923 which reads as under: 30. Appeals.- (1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-- (a) an order 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; (aa) 1 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 sub- section (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. (Emphasis supplied) Relying on the above judgment, Mr. Alok Lal, learned counsel for the appellant submits that cross objection may kindly be dismissed. 8. Learned counsel for the respondent no.7 submits that considering to that fact, cross objection is not maintainable however, if law point is 2026:JHHC:24297 6 M.A. No. 134 of 2018 With C.O. No. 09 of 2022 there, cross objection can be converted into appeal and to buttress his argument, he relied in the case of United India Insurance Company Limited Vs. Narinder Kour & Others reported in 2020 SCC OnLine J&K 418. Relying on the above judgment, he submits that cross objection may kindly be entertained treating it an appeal under the Act. 9. Mr. Shekhar Prasad Sinha, learned counsel appearing on behalf of the claimants submits the claimants are entitle for compensation even if the cross objection is not maintainable in the cases arising out of the Employee’s Compensation Act. 10. In view of the above submission of learned counsel appearing for the parties, the court has gone through the materials on record. It is an admitted position that accident has taken place and on the basis of the fardbeyan, Hazaribag P.S. Case No.447 of 2005 was registered under Sections 279, 304A and 427 of the Indian Penal Code. Post-mortem of the deceased driver was held, investigation conducted and it concluded in the charge sheet against the driver of the trailer. Certified copy of the FIR, charge sheet and death certificate have been marked as Exhibit A1, A2 and A5 respectively and that has been considered by the learned Commissioner in para 10 of the award. Thus, the accident and death has been proved. 11. Contention has been made by the learned counsel appearing for the appellant the application filed under Section 166 of the Motor Vehicle Act, was withdrawn and in view of that second forum was wrongly chosen by the claimants, is not maintainable in view of the fact that the said application under Section 166 of the Motor Vehicle Act was not decided on merit and prior to that, liberty was taken by the learned Commissioner to withdraw and file petition under the Workmen’s Compensation Act. Section 167 of the Motor Vehicle Act clearly stipulates as under: 167. Option regarding claims for compensation in certain cases. - Notwithstanding anything contained in the Workmens Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmens Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both. 12. In view of above Section, it is crystal clear that unless an action 2026:JHHC:24297 7 M.A. No. 134 of 2018 With C.O. No. 09 of 2022 was exercised and award was passed under a particular Act, then only it can be restricted in the light of said Section. The Section 167 of the Motor Vehicle Act stipulates to take relief in either of the Act, this provision is there to the claimants to claim the compensation either in the Motor Vehicle Act, 1988 or in the Workmen’s Compensation Act, 1923. Admittedly, the case was not decided on merit and in view of the above discussion, this point argued by Mr. Alok Lal in filing the case under the Employee’s Compensation Act, is also not being accepted by the court and it is held that the said application was maintainable. 13. Mr. Alok Lal has argued that casual employee are not coming within the definition of employee and to buttress this argument, he relied in the case of Central Mine Planning and Design Institute Ltd. Vs. Ramu Pasi & Another reported in 2005 Supreme (SC) 1581. On the same line, he further relied in the case of Om Prakash Batish Vs. Ranjit @ Ranbir Kaur & Others reported in 2008 (3) Supreme 327 and lastly he relied in the case of New India Assurance Company Ltd. Vs. Jaso Devi reported in 2003 Supreme (Jhk) 594. Relying on the above judgments, learned counsel, Mr. Alok Lal submits that in the written statement, owner has admitted that four days prior of the accident, the deceased was engaged and in view of that he was the casual employee and as such the appeal was not maintainable. Generally, the High Court is not expected to deal with the factual position, but in this case, the conclusion has arrived by the learned Presiding Officer, Labour Court with respect to oral and documentary evidence of the claimants regarding the employment and the alleged accident. Even if it is accepted that only four days prior to the accident, the driver was engaged, it is crystal clear that he was engaged for trade and business by the employer. The definition of ‘employee’ is described in Section 2(dd) of the Employee’s Compensation Act. Looking into the said definition, it is crystal clear that Section laid down in order to exclude a person from the category of workmen, two ingredients must be present. Those ingredients are that the employment of such a person should not only be of casual nature, but also for a purpose otherwise then a purposes of employer’s trade or business. Both these qualification must be 2026:JHHC:24297 8 M.A. No. 134 of 2018 With C.O. No. 09 of 2022 satisfied in order to exclude the person from the category of workman under the Act. Further, a plain reading of the definition of 'workman' in the Act shows that the word used as conjunction is "and" and therefore, it will have to be held that both the ingredients mentioned above would have to be satisfied in order to exclude a person from the category of the said definition. Thus, if a person is employed for the purpose of a trade or business, the employer is liable even if the work is of a casual nature. Similarly, if a person is employed in a work which is not of casual nature, the employer is liable even if the work is not for the purpose of a trade or business of the employer. 14. So far the judgments relied by Mr. Alok Lal in the aforesaid cases on the issue are concerned, in those cases, it has not been proved that the employee was also employed for trade and business of the employer. Those cases were clearly on the point of casual employment. As such those cases on which Mr. Alok Lal relied, is not helping the appellant herein. 15. The Division Bench of the Madras High Court in the case of K. Kamalaveni & Others Versus The Managing Director, Subbathal Spinning Mills (P) Limited, Erode & Others, reported in 2004 0 Supreme (Mad) 809 in para-18, has held as under:- “18. The above said definition clearly lays down that in order to exclude a person from the category of "workman", two ingredients must be present. Those ingredients are that the employment of such a person should not only be of casual in nature but also for a purpose otherwise than for the purposes of employer's trade or business. Both these qualifications must be satisfied in order to exclude a person from the category of "workman" under the Act. There is a catena of decisions bearing on this point. All the decisions have taken note of a similar provision in Workmen's Compensation Act, 1906 in England. This Court has laid down the said proposition in Arumugam v. Nagammal, (1948)2 M.L.J. 639: A.I.R. 1949 Mad. 462; Vinayak Mudaliar v. Mundala Pottiamma, (1952)2 M.L.J. 774: A.I.R. 1953 Mad. 432 and T.N.Sitharama Reddiar v. A.Ayyaswami Gounder, (1955)2 M.L.J. 768: A.I.R. 1956 Mad. 212. A plain reading of the definition of 'workman' in the Act shows that the word used as conjunction is "and" and therefore it will have to be held that both the ingredients mentioned above would have to be satisfied in order to exclude a person from the category of the said definition. Thus if a person is employed for the purpose of a trade or business, the employer is liable even if the work is of a casual nature. Similarly, if a person is employed in a work which is not of casual nature, the employer is liable even if 2026:JHHC:24297 9 M.A. No. 134 of 2018 With C.O. No. 09 of 2022 the work is not for the purpose of a trade or business of the employer.” 16. So far the interest part is concerned, the Employee’s Compensation Act is a beneficial piece of legislation and duty is cast upon the employer to pay the adequate compensation within one month from the date it fell due. The accident took place on 04.10.2005 and the employer has not paid the compensation within 30 days. Section 4A of the Employee’s Compensation Act prescribes the situation where the interest has to be calculated and even penalty has to be given with a consideration of the justification for withholding the compensation and interest. 17. This aspect has been dealt by this court in the case of Smt. Sudama Devi Vs. Amjad Nabib Khan and Others in M.A. No.81 of 2015 and as such the argument of Mr. Alok Lal with regard to interest is not being accepted by the court. 18. In the light of the above facts, discussions and reasons, the court finds that there is no illegality in the judgment/award dated 31.10.2017 passed by learned Presiding Officer, Labour Court, Dhanbad-cum-Employee Compensation Commissioner in W.C. Case No.33 of 2013 and as such the appeal is hereby, dismissed. 19. So far Cross Objection No.09 of 2022 is concerned, co-ordinate Bench of this court clearly held in the case of Reliance General Insurance Company Limited Vs. Nanhki Devi & Others (supra) that cross objection is not maintainable in the cases arising out of Workmen’s Compensation Act and that point has also been conceded by the learned counsel appearing for the owner, who has preferred the cross objection. However, reliance has been placed by the learned counsel appearing for the owner in the case of United India Insurance Company Limited Vs. Narinder Kour & Other (supra). Even if the contention is accepted, there is no substantial law point involved to convert the cross objection into the appeal and as such, the Cross Objection No.09 of 2022 is also dismissed. 20. The awarded amount along with interest in terms of the said award shall be released in favour of the claimants by learned Presiding Officer, Labour Court, Dhanbad-cum-Employee Compensation Commissioner and the same will be paid within eight weeks from the date of receipt/production 2026:JHHC:24297 10 M.A. No. 134 of 2018 With C.O. No. 09 of 2022 of copy of this order to the claimants on proper verification. It is also made clear that if the interest part is not deposited by the Insurance Company, that will be recovered by the Commissioner along with the deposited amount, the interest in terms of the award shall also be paid. 21. Pending interlocutory application, if any, stands disposed of. Let the Lower Court Records facts be sent back to the court concerned. (Sanjay Kumar Dwivedi, J.) Dated 13.08.2026 Anit A.F.R. Uploaded 19.08.2026