The central legal point established in the judgment is that the insurance company is liable to pay compensation under the Workmen Compensation Act if the claimant is considered a Khalasi under the policy.

1. - This appeal has been filed by the insurance company against the award of the Workmen Compensation Commissioner, Jaipur Distt. I, Jaipur in claim case No. 182/2008 whereby an award for Rs. 1,95,219 along with interest has been passed in favour of the claimant respondent.

2. Brief facts of the case are that on 27.8.2008 in a road accident the claimant sustained injuries during course of employment as he was working as Khalasi of Truck No. RJ 20 GA 1280 which was owned by respondent No.2 and insured with the appellant insurance company.

3. In the claim petition the claimant stated that due to accident he sustained number of injuries over his body and he became permanently disabled and the permanent disability certificate was produced showing 36% permanent disability. The respondent No.2 despite service of notice did not appear before the Commissioner and as such the order to proceed exparte was passed against him on 4.8.2009.

4. The insurance company submitted reply to the claimant petition denying the averments. It was pleaded that no notice under section 10 of the Workmen Compensation Act, 1923 was served upon the insurance company. Alleged incident took place on 27.8.2009 and the claim petition was filed on 3.9.2008 it means only after 7 days of the alleged incident. From the FIR it is clear that the claimant was working as labrourer only to unload the Bajri and hence he cannot be said to be the Khalasi and as such the insurer is not liable and only in order to get compensation the claimant has claimed himself to be the Khalasi. The claimant examined himself as a witness and produced documents Ex. 1 to 20. On behalf of the insurance company Manoj Verma was examined as NAW 1 and documents Ex. NA 1 to N A 10 were produced. After hearing the parties the Commissioner awarded Rs. 1,95,219 to the claimant vide award dated 28.5.2010.

5. The learnd counsel for the appellant has argued that the notice under Section 10 of the Workmen Compensation Act, 1923 was not served upon the insurer. The claimant was not working as Khalasi of the insured and thus there was no relationship of workman and employee the claimant and the respondent No.2 in existence. The FIR lodged by the claimant indicates that the claimant was working as open labourer to unload the Bajri being caried in the vehicle and he was never given employment by the insured as Khalasi and the insurer has charged the premium only to cover the risk of driver and Khalasi and thus the risk of labourer is not assumed and hence the insurer cannot be held liable to pay compensation.

6. Mr. Vikram Singh, counsel appearing for the claimant has argued that the claimant was working as Khalasi and the Commissioner Workmen Compensation after appreciating the material produced by both the parties, rightly decided the claim of the claimant and the claimant has been awarded compensation as the policy of the insurance company. The order of the Commissioner cannot be said to be perverse.

7. I have heard the learned counsel for the parties. I have also perused the order passed by the Commissioner Workmen Compensation. On issue No.1 the Commissioner in the order dated 28.5.2010 observed as under :

"izn'kZ 15 , dh vksj izkFkhZ ds fo}ku vf/koDrk us /;ku vkdf"kZr fd;k o fuosnu fd;k] fd izkFkhZ dh nq?kZVuk fnukad 27&08&2008 dks nksjku fu;kstu gq;h gS] dsnkor gksfLiVy] t;iqj ds bZykt dk fMLpktZ fVfdV ij vkj0Vh0,0 vafdr fd;k x;k gS o izFke lwpuk fjiksVZ esa gsejkt dks okgu V~d la[;k vkj0ts0 20 th0,0 1280 ij dk;Zjr gksuk o nq?kZVuk esa pksV vkuk ntZ fd;k x;k gSA izdj.k esa chek dEiuh us rks dksbZ lk{; izLrqr dh gS u gh dksbZ nLrkostkr izLrqr fd;s gSA ,sls esa izkFkhZ dk nq?kZVuk ,oa fu;kstu iw.kZ:i ls lkfcr gSA"

8. On issue No.2 the Commissioner observed as under :

"fpfdRld us izkFkhZ ds LFkk;h fu%'kDdrrk izek.k i= ftlesa 36 izfr'kr LFkkbZ fu%'kDdrrk ntZ dh x;h gS o fu%'kDdrk izek.k i= ftlesa 36 izfr'kr LFkkbZ fu%'kDdrk ntZ dh x;h gS o fu%'kDdrk izek.k i= esa izkFkhZ dks [kyklh ds dk;Z esa ijs'kkuh v