J U D G M E N T

1. This judgment shall decide the present appeal filed by the appellant/Insurance Company under Section 30 of the Employee‟s Compensation Act, 19232 assailing the impugned order dated 31.07.2019 passed by Employee‟s Compensation Commissioner3 in case No. CEC/WD/D146/16 titled as „Hari Prasad Kamkar & Ors. v. Deepak Brara & Ors.‟, whereby the claim for compensation filed by the claimants/respondent Nos. 1 to 3 for death of one Dhan Bihari was allowed.

1 Written submissions filed on 20.11.2023

2 EC Act

3 Commissioner

FACTUAL BACKGROUND:

2. Briefly stating, the victim/deceased Dhan Bihari was son of respondent No.1 and brother of respondent Nos. 2 and 3. It was the case of the claimants that the deceased was employed as a cleaner with respondent No.2 (respondent No.4 in the present appeal)4, who was the owner of truck bearing No. HR55J-0747, who left from Calcutta for Delhi on a commercial trip; and that in the intervening night of 13th and 14th September 2016 the truck reached Thandi Poyau Chowki under jurisdiction of P.S. Kotwali Kehat, Distt. Bulandshar, Uttar Pradesh, where all of sudden a Nilgai came infront of the moving truck and in order to save it, the truck driver lost balance and control as a result of which the truck turned upside down and the deceased received multiple grievous injuries all over his body. He was rushed to Civil Hospital Bulandshar and later referred to Lok Nayak Hospital, Delhi, where he eventually succumbed to his injuries on

21.09.2016.

3. The claimants submitted that the deceased died during the course of his employment with the registered owner, and therefore, they sought compensation under the EC Act. The appellant, being the insurer of the truck and the registered owner, disputed the assertion of the claimants that the deceased was working as a cleaner and died during the course of his employment.

4. The Commissioner framed the following issues for consideration:

“(i) Whether the deceased employee Sh. Dhan Bihari was the employee of the Respondent no.1?

(ii) Whether deceased Sh. Dhan Bihari suffered death or and in the course of employment with respondent no.1?

(iii) Whether the claimant is entitled to compensation for the death of deceased and the amount thereof?

(iv) Whether respondent no.2 is liable to indemnify respondent no.1 policy issues to respondent no.1?

(v) Whether respondent no.2 is entitled to right of respondent no.2 recovery against respondent no.1 for violation of policy terms?

(vi) Any other relief to whether claimant is entitled?”

5. During the course of inquiry claimant Mr. Hari Prasad Kamkar, (the respondent No.1 herein) was examined. He filed his detailed affidavit in evidence (Ex.PW-1/10) and substantiated the assertions made in the claim petition on oath. He was duly cross-examined by the learned counsel for the Insurance Company as well as the registered owner.

6. On the other hand, respondent No.1 examined Mr. Bhola Singh, the driver of the vehicle, who rather corroborated the version of the claimants that the deceased was employed as a cleaner and he was with him at the time of the accident. He produced his Driving License, copy of which is Ex.RW-1/D placed on the record and he was duly cross-examined by the learned counsel for the petitioner. On behalf of respondent No.2, Mr. Abhishek Tripathi, Assistant Manager filed his detailed affidavit Ex.R1W1/A, thereby denying the relationship of „employer and employee‟ and he was duly cross-

examined by the learned counsel for the petitioner.

4 Registered owner of the truck

7. To summarise, the Commissioner rendered the findings that in view of testimony of Bhola Singh, it was proven on record that deceased was working as a cleaner on the Truck, and therefore, he was an „employee‟ within the meaning of the EC Act. It was further held that it was admitted fact that the truck in question was duly insured with the respondent No.2/Insurance Company i.e., the appellant; and it was held that the deceased died due to injuries sustained b