United India Insurance Company Ltd vs Smt. Saurabh Kanwar ...
2025 Latest Caselaw 8098 Raj

Citation : 2025 Latest Caselaw 8098 Raj
Judgement Date : 3 March, 2025

Rajasthan High Court - Jodhpur

United India Insurance Company Ltd vs Smt. Saurabh Kanwar ... on 3 March, 2025

Author: Rekha Borana

Bench: Rekha Borana

[2025:RJ-JD:11645]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     S.B. Civil Misc. Appeal No. 728/2025

United India Insurance Company Ltd., Divisional Office, Near
Bartkatulla Khan Stadium Bhati N Plaza, Main Pal Road, Jodhpur.
                                                                        ----Appellant
                                        Versus
1.       Smt. Saurabh Kanwar W/o Late Shri Dalpat Singh, Aged
         About 39 Years, R/o Near Jabardast Hanuman Mandir,
         Ward No.18 Balotra Tehsil Balotra District Barmer.
2.       Smt. Gomati Kanwar W/o Shri Madho Singh, R/o Near
         Jabardast Hanuman Mandir, Ward No.18 Balotra Tehsil
         Balotra District Barmer.
3.       Shri Madho Singh S/o Shri Udai Singh Bhati, R/o Near
         Jabardast Hanuman Mandir, Ward No.18 Balotra Tehsil
         Balotra District Barmer.
4.       Virendra Singh Nehra S/o Shri Hiralal, R/o 2/166 Housing
         Board Balotra Tehsil Balotra, District Barmer. (Registered
         Owner Scorpio No. Rj 04 Ub 0425)
                                                                     ----Respondents


For Appellant(s)              :     Mr. Mahesh Joshi



              HON'BLE MS. JUSTICE REKHA BORANA

Order

03/03/2025

1. The present appeal has been filed against the order dated

03.12.2024 passed by the Commissioner, Workmen Compensation

Act, 1923 in Case No.ECC/F/12/2019 whereby an award to the

tune of Rs.7,30,480/- has been passed in favour of the claimants

and appellant-Insurance Company has been held liable to pay the

said amount.

2. Learned counsel for the appellant-Insurance Company raised

the following grounds:

[2025:RJ-JD:11645] (2 of 5) [CMA-728/2025]

i. Firstly, no relationship of employer and employee was

established on record and hence, no award in favour of the

claimants could have been passed by the learned Court

below.

ii. Secondly, defendant No.1-Virendra Singh i.e. owner of the

vehicle in question remained ex parte and hence, the onus to

prove the employer and employee relationship was not

discharged.

iii. Thirdly, the owner filed an affidavit before the Insurance

Company while raising his claim qua the damage to the

vehicle in question wherein he admitted that deceased-

Dalpat Singh had borrowed the vehicle from him, he being

his friend. Therein, no fact of Dalpat Singh being his paid

driver was averred.

3. In support of his submissions, learned counsel relied upon

the following judgments:

i. Shantabai Ananda Jagtap & Anr. vs. Jayram Ganpati Jagtap & Anr.; 2023 8 SCC 171

ii. Sanjay Kumar Singh vs. The State of Jharkhand; 2022 7 SCC 247

iii. M/s United India Insurance Company Limited, Chennai vs. Saraswathi & Ors.; 2021 0 Supreme (Mad) 100

4. It is relevant to note here that the above third ground as

raised before this Court was never raised before the learned Court

below. The alleged affidavit of Virendra Singh (owner of the

vehicle in question) has been annexed along with an application

under Order 41 Rule 27, CPC filed before this Court and a prayer

to take the said document on record has been made.

[2025:RJ-JD:11645] (3 of 5) [CMA-728/2025]

5. Heard learned counsel for the appellant and perused the

material available on record.

6. So far as the relationship of employer and employee is

concerned, it is evident on record that it was specifically pleaded

by the claimants that deceased Dalpat Singh was employed with

defendant No.1-Virendra Singh as his driver. Claimant Saurabh

Kanwar (PW.1) was even cross examined on the said aspect. For

ready reference, the cross examination of PW.1 Saurabh Kanwar

is reproduced as under:

"ftjg vizkFkhZ la[;k 2 vf/koDrk Jh vfuy dkSf"kd }kjk & xkMh fojsUnz th usgjk dh Fkh fojsUnzh th usgjk tkV gS gekjs fj"rs esa ugha gS ij tkuigpku ds gSaA esjs ifr fojsUnz th usgjk dh xkMh pykrs FksA xkMh rks dkQh le; ls pyk jgs Fks ij fojsUnz th ds ikl dc ls xkMh pyk jgs Fks irk ughaA esjs ifr dks 8000@& #i;s ekfld rU[okg nsrs FksA esjs ifr dks ds"k gh rU[okg feyrh FkhA fojsUnz th usgjk dks mlh fnu irk pyk x;k fd xkMh dk ,sDlhMsaV gks x;k gSa geus fojsUnz usgjk ls eqvkots dh ekax ugha dh FkhA fojsUnz th usgjk us vktrd dksbZ ges #i;s Hkh ugha fn;sA odhy lkgc us nLrkost izLrqr fd;s gS tks uksfVl 133 gSA ;g dguk xyr gS fd xkMh ekax dj ysdj x;s gksA ;g dguk xyr gS fd nyir flag fojsUnz flag usgjk ds fu;kstu esa xkMh ugha pykrs gksA"

(Copy of the statements of Saurabh Kanwar (PW.1) have

been placed on record today by counsel for the appellant.)

7. A bare perusal of the above suggestion as made to the

claimant and the cross examination made thereupon make it clear

that a specific averment to the effect that the deceased was

employed with defendant No.1 was not only made, the same even

stood proved by oral evidence.

8. Further, even in the reply (Exh.8) to the notice under Section

133 of the Motor Vehicles Act, 1988 (hereinafter referred to as,

'the Act of 1988'), the owner specifically admitted that deceased

Dalpat Singh who was his driver, was driving the vehicle in

question on the date of accident.

[2025:RJ-JD:11645] (4 of 5) [CMA-728/2025]

9. In the specific opinion of this Court, by leading specific oral

evidence and further getting the notice/reply under Section 133 of

the Act of 1988 exhibited on record, the claimants had specifically

discharged their burden to prove that the deceased was the

employee of defendant No.1. The burden to prove the contrary

was evidently on the Insurance Company. No document to the

contrary was placed on record by the Insurance Company. The

document i.e. alleged affidavit, as sought to be taken on record

vide an application under Order 41 Rule 27, CPC cannot be

considered by this Court at this stage for two reasons:

i. Firstly, the said affidavit pertains to the year 2018. Meaning

thereby, the same was in possession of the Insurance

Company for all the time when the proceedings before the

learned Court below were being conducted. Evidently, the

Insurance Company was not diligent enough to place the

same on record before the learned Court below.

ii. The order impugned is of the year 2024 and till that date,

the document was not placed on record.

iii. The document was not proved on record as the claimants

were not cross-examined on the same. It cannot therefore

be taken on record at this stage.

10. So far as the judgments relied upon by learned counsel for

the appellant are concerned, Saraswati (supra) was a matter

wherein the deceased was the husband of owner of the vehicle in

question. Shantabai (supra) was a matter wherein the deceased

and the employer were closely related. Therein, it was admitted

that the owner of the vehicle was brother of her husband. In both

the matters, Court found the relationship of employer and

[2025:RJ-JD:11645] (5 of 5) [CMA-728/2025]

employee not been proved on record. The ratio therein is clearly

distinguishable in the present matter as herein the employer-

employee relationship has clearly been established on record.

11. In view of the above observations, the finding as recorded by