Employer-employee relationship proved via logbook and adverse inference against non-producing owner; valid heavy goods vehicle licence upheld; tyre replacement in course of employment; interest from one month post-accident despite delay condoned on owner's assurances. (38 words)

JUDGMENT :

Vivek Singh Thakur, J.

This appeal has been preferred under Section 30 of the Employees Compensation Act (in short ‘the EC Act’) against order dated 1.8.2012 passed by the Commissioner, under Employees Compensation Act, Solan in WCA No. 23/2 of 2011 titled Kharak Bahadur vs. Rajesh Sood and another , whereby the Commissioner, Employee’s Compensation has awarded compensation amounting to Rs.42,129.60 Ps. with interest at the rate of 12% per annum from 11.11.2004 i.e. from one month after the date of accident.

2 Parties shall be referred, hereinafter, as per their status as claimant/petitioner, owner (respondent No.1) and Insurance Company (respondent No.2).

3 Claimant had instituted a claim petition under Section 22 of the Workmen’s Compensation Act (now the Employees Compensation Act) against the owner and Insurance Company for awarding compensation for multiple injuries, including fracture in his right leg, sustained by him on 10.10.2004 while he was discharging his duty as driver and replacing/changing the punctured tyre of the vehicle i.e. Truck No. HP-14-6797.

4 The claimant was taken to the Civil Hospital, Kandaghat and thereafter to the Zonal Hospital, Solan and he was also treated at Saket in Institute for the Orthopedically Handicapped, Sector-1, Panchkula (Haryana) where he remained admitted for a considerable period. As per claimant, he had spent more than Rs.50,000/- for his treatment.

5 It is further case of claimant that he was getting Rs.4000/- per month as fixed salary plus Rs.70/- per day as daily allowance. Though accident took place on 10.10.2004, but claim petition was preferred in January, 2007 along with an application for condonation of delay on the ground that owner of truck had been assuring him for payment of compensation/amount spent by him for his treatment but he did not pay the same despite repeated requests made by claimant compelling the claimant to file claim petition.

6 In response to petition, owner of vehicle denied the status of claimant as driver and also denied that he suffered injuries during the course of employment as, according to owner, claimant was not driver on the vehicle on the day of accident.

7 Insurance Company had also resisted the claim petition by taking usual objections related to cause of action, collusiveness, without valid registration certificate and route permit with denial of plea of claimant that he was employed by respondent No.1-owner and met with accident during the course of employment.

8 On appreciating pleadings of parties and evidence on record, Commissioner passed impugned award which is under challenge in this appeal. The appeal was admitted on the following substantial questions of law:-

1. Whether in the absence of employer-employee relationship between respondent No.2 and injured proved on record, the Insurance Company could be made liable to pay the amount as compensation to the claimant?

2. Whether the indemnification of the claim by insurer could be ordered when injured/claimant was not having valid and effective driving licence to drive the truck and thereby, breach of the policy conditions as regards the driver’s clause was committed?

3. Whether interest for period from 11.11.2004 till deposit/payment could be ordered to be paid to the claimant by the appellant/insurer when the compensation amount due and payable to claimant was determined by Ld. Commissioner vide the impugned order dated 01.08.2012 when the claim petition was decided?

4. Whether the claimant could be allowed amount on account of interest prior to the date of filing the claim petition which was time barred and application seeking condonation of delay in filing the petition was filed?

9 Claimant examined himself as PW1 by tendering his examination-in-chief on affidavit Ext.PW2/A. PW1 Dr. Ashish Sharma, proved the medical examination of claimant and 10% permanent disability, with respect to right leg, suffered by him, as depicted in certificate Ext.PW1/A.

10 PW3 Kishan Chand and PW4 Pu