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Judgment
Sanjay Dhar, J
1) By this common judgment, the appeal filed by the appellant-Insurance Company against the impugned award dated 31.08.2017 passed by the Commissioner under the Employees Compensation Act, 1923 (Assistant Labour Commissioner), Jammu (hereinafter to be referred to as the Commissioner) and another appeal filed by the claimants seeking enhancement of the compensation awarded in favour of the claimants in terms of the aforesaid award, are proposed to be disposed of.
2) It appears that one Ajay Kumar, who happens to be the predecessor-in-interest of the claimants, suffered an accident while he was driving a commercial vehicle bearing registration No. JK21A 3297. The accident took place at village Balinda, District Fatehpur, Utter Pradesh. As a result of the accident, said Ajay Kumar along with two other persons died and three more persons suffered injuries. As per the case of the claimants, the deceased, Ajay Kumar was a driver by profession and the accident had taken place during the course of his employment with respondent No. 5, Sunilata Kumari.
3) The dependants of deceased Ajay Kumar filed a claim petition before the Commissioner claiming compensation on account of the death of the deceased. The claimants happen to be the widow, mother and sons of the deceased.
4) Before the Commissioner, the appellant- Insurance Company contested the claim petition by filing a reply thereto, in which it was claimed that the deceased was not holding a valid driving licence at the time of the alleged incident. The appellant-Insurance Company denied the occurrence of the accident and also denied that the deceased was in the employment of respondent, Sunilata Kumari.
5) Respondent, Sunilata Kumari also filed her reply to the claim petition, in which she denied that the deceased was under her employment. She further contended that the accident did not take place during the course of employment of the deceased with her. Respondent, Sunilata Kumari, however, stopped appearing in the case and she was proceeded ex parte.
6) On the basis of the pleadings of the parties, the following issues came be to framed:
“1. Whether the deceased “Ajay Kumar” falls under the definition of employee as prescribed under the provisions of Employees Compensation Act, 1923? OPP.
Whether the accident in which deceased died arose out of and during the course of his employment for respondent No. 2? OPP
What was the age and wages of the deceased at the time of accident? OPP.
Whether the vehicle in question was driven in violation of terms and conditions of insurance policy at the time of accident? OPR-1
Relief? O P Parties.”
7) After recording the evidence, the learned Commissioner came to the conclusion that the death of the deceased had taken place as a result of the vehicular accident and that the said accident had taken place during the course of his employment with respondent, Sunilata Kumari. The learned Commissioner by taking the income of the deceased as Rs. 7000/- per month assessed the compensation of Rs. 6,97,900/- alongwtih an interest of Rs. 2,16,350/- and a sum of Rs. 5,000/- towards funeral expenses of the deceased. Thus, the appellant-Insurance Company was directed to deposit an amount of Rs. 9,19,250/- before the Commissioner within a period of 30 days and the same was directed to be paid to the claimants.
8) The appellant-Insurance Company has challenged the impugned award primarily on two grounds. Firstly, that the employment of deceased, Ajay Kumar with respondent, Sunilata Kumari having been denied by the said respondent in her objections, has not been established and as such, the award could not have been passed against the appellant-Insurance Company. It has been further contended that no FIR was registered in respect of the alleged occurrence and no eye witness was examined by the Commissioner and as such, the accident is not proved.
9) On the other hand, the claimants have challenged the impugned award on the ground that they have proved that income of the deceased was Rs. 15000/- per month but without assigning any reasons, the Commissioner has scaled down the income of the deceased to Rs. 7000/- per month. It is urged that on this ground the claimants are entitled to enhancement of the compensation.
10) I have heard learned counsel for the parties and perused the record of the Authority.
11) It is correct that respondent, Sunilata Kumari has in her objections denied that deceased Ajay Kumar was under her employment but she has not contested the claim petition and has been set ex parte. The appellant-Insurance Company has not led any evidence on the issue relating to this aspect of the matter. Only evidence on the issue, which we have on record, is the evidence led by the claimants, who have examined as many as four witnesses. All these witnesses have stated in one voice that the deceased was under the employment of respondent, Sunilata Kumari as Driver for the last 17 years. They have stated that the deceased was plying a commercial Taxi and at the time of the occurrence also, he had proceeded along with passengers under the directions of the owner of the vehicle, namely, Sunilata Kumari. These witnesses have been cross-examined at length by the counsel for the appellant-Insurance Company, but the credit of the witnesses has not been shaken in their cross-examination. In the face of this situation, the learned Commissioner had no option but to rely upon these witnesses and hold that the deceased was under the employment of respondent-Sunilata Kumari at the time of the accident and that the accident had taken place during the course of the employment.
12) Learned counsel for the appellants has submitted that the claimants have not examined the owner of the vehicle and without producing her as a witness, it cannot be stated that they have discharged their burden. This argument of the learned counsel for the appellant is without any substance for the reason that the claimants have, by leading cogent and convincing evidence, shown that the deceased was under the employment of respondent, Sunilata Kumari. It was for her to rebut this evidence by coming to the witness box or it was for the appellant-Insurance Company to summon her as a witness and rebut the evidence produced by the claimants, which they have failed to do.
13) The second ground urged by the learned counsel for the appellant-Issuance Company is also without any merit for the reason that mere non- registration of FIR and non-production of the eye witnesses to the occurrence, does not mean that the accident had not taken placed. The claimants have placed on record copy of Daily Dairy, in which it has been categorically recorded that the deceased had died as a result of the road accident. Copy of the report of the post-mortem of the deceased has also been placed on record, which corroborates the fact that the deceased had died as a result of road traffic accident. When these documents are read with the statements of the witnesses produced by the claimants, though they may not be eye witnesses to the occurrence, it gets established that the accident had taken place as a result of which deceased Ajay Kumar had died.
14) It is a settled law that in the proceedings under the Employees Compensation Act, a fact is not required to be proved beyond reasonable doubt. The claimant is only required to prove a fact on the basis of fair evidence, which in the instant case, the claimants have succeeded in doing. Thus, the argument of the learned counsel for the appellant-Insurance company is without any merit.
15) So far as the ground urged by the appellant-claimants in their appeal for enhancement of the award is concerned, the same is also without any merit for the reason that the claimants have not produced any documentary evidence on record to prove the income of the deceased. They have not produced either salary certificate or any other bank statement to show as to how much income was being earned by the deceased. In the absence of any cogent material before the learned Commissioner, the only course open to him was to assess the income of the deceased on the basis of guess work having regard to the nature of his occupation. The learned Commissioner by resorting to guess work has rightly assessed the income of the deceased at Rs. 7000/-per month. The same does not call for any interference from this Court.
16) For the foregoing reasons, I do not find any merit in any of the two appeals. Accordingly, the same are dismissed.
17) The awarded amount, if deposited shall be released in favour of the claimants in terms of the impugned award.