JUDGMENT :

1. Heard learned counsel for the appellant-New India Assurance Co. Ltd.

2. By way of this appeal, the appellant has challenged the judgment and award dated 31.3.2004 passed by Workmen's Compensation Commissioner, Bareilly, in Case No.156/WCA/2002 awarding compensation of Rs.3,06,620/-.

3. Learned Counsel for the appellant – Insurance Company submits that according to the statement of the owner, deceased had taken the vehicle to the workshop for repairing and servicing but he had taken the vehicle in question to Delhi and Meerut with other five persons without his permission and as such his death would not be taken to be caused arising out of and in the course of his employment at the time of accident. The driver had licence to drive only motorcycle and LMV (Pvt.) whereas jeep was insured for taxi purposes and as such it was driven in violation of policy.

4. Learned Counsel for the claimant – respondent submits that the deceased Charan Singh Yadav was engaged as Driver with the vehicle no. UP-25-J/2228 owned by respondent no.2 and was murdered during course of his employment on 19.8.2002. The vehicle was insured with the company of appellant for which the learned Tribunal decided the issue no.4 recording that on the day of incident the vehicle was insured as the vehicle was insured since 20.3.2002 to 19.3.2003.

5. It is submitted by learned Counsel for appellant that on the day of incident the deceased was not having valid and effective driving license for which issue no.5 decided against appellant. The finding that deceased died during course of employment for which issue no.1 was decided in favour claimants is against the evidence led before the Commissioner.

6. It is further submitted by learned Counsel for the appellant that the learned Tribunal considering material evidence available on record partly allowed the claim of claimant by judgment and order dated 31.3.2004 awarding amount of Rs. 3,06,620/-with interest and erroneously fixed liability on the appellant. The learned Tribunal while partly allowing the claim of claimant – respondent no.1, came to the conclusion that the claimant was entitled for compensation as claimed by the widow.

7. On perusal of memo of appeal, this Court finds that following substantial questions of law have been framed by the appellant. This Court while admitting the appeal did not stipulate on what question of law the appeal was admitted. This Court thinks it appropriate to decide the substantial question of law as framed by appellant. The substantial questions of law are as under:-

“(a) Whether the learned Commissioner has committed error of law in awarding compensation ignoring the statement of the owner of the vehicle (employer) to the effect that he had only permitted the decease to take the vehicle in question to the workshop for repairing and servicing and not for leisure tour of Delhi and Meerut etc. which was with out his permission?

(b)Whether the death of the Driver was deemed to be arising out of and in the course of his employment?

(c) Whether the Driver had valid and effective driving licence at the time of the accident?

(d) Whether unless the bones found are proved in the criminal court belongs to the alleged deceased, no award could be passed in favour of the claimant?"

8. At the outset, it is relevant to discuss the scope of this Court to entertain appeal against the award of Workmen's Compensation Commissioner.

9. The Apex Court in Civil Appeal No.7470 of 2009 North East Karnataka Road Transport Corporation Vs. Smt. Sujatha decided on 2.11.2018 has held as under :

"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the ag