The primary liability of paying compensation is fastened on the employer, and if the insurer is liable to indemnify the employer for the latter's liability to pay compensation, there exists no cogent reason to exonerate the insurer. The liability of the insurer depends upon the liability of the insured.

( 1 ) THE present appeal has been filed by the insurance company for setting aside the judgment and award of the Tribunal and for dismissing the claim of the claimant-respondent against the appellant insurance company.

( 2 ) THE brief facts of the case are that the claim under Workmens Compensation act, No. 153 of 1993 was filed against Sri krishna Jain by Chandra Kali, w/o late babu Ram and United India Insurance Co. Ltd.

( 3 ) ALLEGATION of Chandra Kali was that her husband late Babu Ram was driver of respondent No. 1 Sri Krishna Jain since one year before the accident by the truck no. UP 15-J 5061 and he used to get sal ary of Rs. 3,000 per month.

( 4 ) ON 31. 5. 1999, while her husband late babu Ram was coming from Hathras by the truck and reached Hapur Road near hazi Park, three unknown persons killed her husband Babu Ram at 2. 30 p. m. Babu ram was admitted in Lajpat Rai Nursing home, Meerut by the conductor who died on 1. 6. 1999 at 7. 30a. m.

( 5 ) REPORT was lodged by the conductor sandeep in the Police Station, Kharkhanda, district Meerut. Age of her husband Babu ram was 40 years at the time of the incident.

( 6 ) IT was also alleged that the vehicle was insured and insurance was valid from 5. 12. 1998 till 4. 12. 1999. Its cover note is 009274, hence respondent No. 2 is also liable for compensation.

( 7 ) CHANDRA Kali claimed Rs. 3,00,000 along with 24 per cent annual interest. As the respondent No. 1 was absent, hence the case proceeded ex parte against him.

( 8 ) AFTER hearing parties, learned Workmens Compensation Commissioner held that late Babu Ram, husband of the claimant was an employee of the respondent No. 1 and he died on 1. 6. 1999 due to injury received on 31. 5. 1999 during the employment of the respondent No. 1. It was also held that the alleged truck which was being driven by the husband of the claimant was insured by the respondent No. 2. It was also held that the age of late Babu Ram, husband of the claimant was 38 years at the time of the accident. It was also held that the pay of late Babu Ram at the time of incident was Rs. 3,000 per month.

( 9 ) LEARNED Tribunal held that the claimant is entitled for a sum of Rs. 1,79,560. It was also held that as the truck was insured by respondent No. 2, hence the respondent No. 2 is liable to pay the compensation to the claimant. The Tribunal directed the insurance company to pay the compensation of Rs. 1,79,560 within 30 days. The respondent No. 1 was also directed to pay 12 per cent simple interest from the date of the death of Babu Ram till the date of payment. It was also held that under section 4-A of the Act, a notice be issued to the respondent No. 1 why 50 per cent of the compensation amount be not imposed on him as penalty.

( 10 ) AGGRIEVED by the said order dated 18. 5. 2002, appeal has been filed by the appellant.

( 11 ) THE points raised by the appellant are as under: (1) Whether the driver of the truck, in the course of his employment, was justified in allowing the total stranger to board the truck? (2) Whether by not informing the company about the incident at all by the owner of the truck, the owner has committed breach of legal provisions as well as insurance contract? (3) Whether the Commissioner is entitled to pass an award against the insurance company?

( 12 ) ACCORDING to the proviso of section 30 of the Workmens Compensation Act, it is clear that, appeal shall lie only, if the substantial question of law is involved.

( 13 ) THE question raised by the appellant as to whether the driver of the truck was justified in allowing the total stranger to board the truck in the course of his employment, is a question of fact and not question of law.

( 14 ) THE next question raised by the appellant is whether by not informing the company about the incident at all by the owner of the truck, the owner committed a breach of legal provisions as well as the insurance contract. This is also question of fact and not the question of law.

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