The main legal point established in the judgment is the determination of liability under the Workmen's Compensation Act, holding the insurer responsible for the compensation and interest, and the insured responsible for the penalty.

DHARAM CHAND CHAUDHARY, J.

1. This judgment shall dispose of both appeals arising out of award dated 28.3.2007 passed by learned Commissioner under Workmen's Compensation Act, Rajgarh, District Sirmour in case No. 4 of 2005. The appellant in this appeal is Oriental Insurance Company Limited, hereinafter referred to as respondent No. 2-the Insurer, whereas in the connected one the owner of ill fated pick-up bearing No. HP-16-1349, hereinafter referred as respondent No. 1-insured. Learned Commissioner below has allowed the claim petition filed by respondent No. 1 (hereinafter referred to as the petitioner) and awarded a sum of Rs. 4,48,000/- as compensation against respondent No. 2 and a sum of 1,07,520/- towards interest payable on the awarded amount @12%. Besides a sum of Rs. 67,200/- has been awarded as penalty @ 15% of the amount of compensation i.e. Rs. 4,48,000/-. The amount of interest and penalty as imposed has to be paid by respondent No. 1, the insurer. Therefore, while respondent No. 2 aggrieved by the award to the tune of Rs. 4,48,000/- made by learned Commissioner against it, respondent No. 1-Insurer is aggrieved by the liability to pay interest @12% on the awarded amount and also the penalty amount i.e. Rs. 67,200/- awarded against him.

2. The challenge to the award by the Insurer-respondent No. 1 is on the sole ground that deceased Mangat Ram was not travelling in the ill fated pick-up in the capacity of a workman and rather a passenger. The complaint, therefore, is that there being breach of the insurance policy the insurer is not liable to indemnify the insurer in the matter of payment of compensation as awarded.

3. On the other hand the grouse of the Insurer-respondent No. 1 is that he is neither liable to pay the amount of interest @12% as awarded nor the penalty of Rs. 67200/- is imposed upon him.

4. Admittedly Mangat Ram is the son of petitioner-claimant Padmo Devi. On 20.4.2005 he was travelling in pick up bearing No. HP-16-1349. The vehicle met with an accident near Neri Pul under the jurisdiction of police Station, Rajgarh. Its driver Shri Balbir Singh and deceased Mangat Ram succumbed to the injuries they received in the accident.

5. The averments in the claim petition reveal that deceased was 20 years of age at the time of his death in the accident and he was working as cleaner/labourer. His wages have been claimed as Rs. 4000/- per month.

6. In reply to the petition filed on behalf of first respondent it has been admitted that deceased Mangat Ram was working as cleaner with the ill fated vehicle. His wages Rs. 4000/- per month has also been admitted as correct. The respondent No. 1-Insurer has however, contested the petition on the grounds, inter alia, that insurer-respondent No. 1 has never lodged any claim for the payment of compensation under Workmen Compensation Act and that as per the investigation got conducted through Shri Phool Prakash Bakshi an investigator though Mangat Ram was found to have died in the accident, however, he was travelling in the vehicle un-authorisedly. The vehicle allegedly was being used to carry passengers in violation of the terms and condition of the Insurance Policy. On merits, it is denied that deceased Mangat Ram was working as Cleaner or labourer and his wages was Rs. 4000/- per month.

7. On the pleadings of the parties, following issues were framed in this petition:

1. Whether the deceased Mangat Ram was a workman within the definition of "workman" under the Workmen's Compensation Act? OPP

2. Whether the deceased died during the course of his employment with the respondent No. 1 Subhash? OPP

8. Both issues were answered in favour of the petitioner-claimant and consequently, she has been awarded the compensation as pointed out at the outset.

9. This appeal has been admitted on the following substantial question of law:

Whether in the face of Insurance Policy Ext. RW- 1/A which does not cover the risk of any passenger and is specifically issued for Goods Carrying Vehic