THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CIVIL MISCELLANEOUS APPEAL No. 163 OF 2016
JUDGMENT:
The claimants herein filed the Claim Application under the Employees Compensation Act, 1923 and A.P. Rules 1953 seeking grant of compensation on account of death of Pendluru Srinivasulu in a motor vehicle accident which occurred on 04.02.2009 at Kadiri-Pulivendula Ghat road. The applicants are wife, son and parents of the deceased Pendluru Srinivasulu, who was the driver of the lorry bearing No.KA 08 A 1099, are the legal heirs and dependents of the deceased. The 1st opposite party is the owner of the lorry vide vehicle bearing no. KA 08 A 1099 and the 2nd opposite party is its insurer.
2. On the instructions of the employer/1st opposite party, the said Srinivas drove the vehicle which was loaded with bricks from Kadiri towards Pulivendula, when the lorry reached the ghat road, he drove the lorry carefully but due to unavoidable circumstances the lorry fell on the road side and turned turtle, and in the meanwhile the deceased jumped from the lorry to escape the death, unfortunately the bricks fall on the deceased driver due to which he met with instantaneous death. 2
3. As per the claim averments, the deceased was 40 years old at the time of his death and claimants have claimed compensation of Rs.5,00,000/- with interest @ 12% from the date of accident. In the claim application it was further asserted that the accident was occurred during the course of the employment of the deceased under 1st opposite party. The insurance company who is appellant herein was arrayed as 2nd opposite party in the claim application before the Court of Commissioner for Employee's Compensation and Assistant Commissioner of Labour, Kadapa and denied the allegations made in the petition put-forth by the applicants who are respondents herein and further contended that the deceased is not having valid driving licence to drive the vehicle at the relevant point of time i.e. at the time of accident.
4. The Commissioner has framed as many as seven issues, one such issue is that, whether Opposite Party-1 committed breach of policy condition by allowing the deceased driver Penduluru Sreenivasulu whose driving licence was lapsed. After considering all the issues, the Commissioner for Employees Compensation-cum-Assistant Commissioner of Labour, Kadapa has allowed the application and directed to pay a compensation of Rs.3,73,800/- with interest @ 7.5% from the date of filing of 3 claim application i.e. 13.04.2010 till realization besides stamp duty of Rs.708/- fixing the liability jointly and severally. And upholded the contentions raised by the 2nd opposite party that the deceased has no driving licence at the time of accident but, however, directed the insurance company to pay and recover the said amount.
5. Aggrieved by the Order in W.C. No.13 of 2010 dated 26.09.2014, the present appeal came to be filed on the ground that the Commissioner has erred in directing the insurance company who is appellant herein to pay and recover the amount which is not applicable to the employees compensation act and relied on the judgments of the Hon'ble Supreme Court in National Insurance Company v. Laxmi Narian Dhut 1 , National Insurance Company Limited v. Vidhyadhar Mahariwala and others 2 and Oriental Insurance Company Limited v. Meena Variyal and others3 for the proposition that the pay and recover theory is not applicable under the workman/ employee compensation act, as the deceased does not come under third party.
1 (2007) 3 SCC 700 2 (2008) 12 SCC 701 3 (2007) 5 SCC 428 4
7. The Hon'ble Apex Court in Beli Ram case relied on the judgment of the Himachal Pradesh High Court in National Insurance Company v. Hem Raj & Ors. 4 Wherein it was held that when a person is not renewed the licence after expiry, the insurance company is not responsible to satisfy such claim. A reading of the judgment of Hon'ble Apex Court in Beliram's case makes it clear that when the driver of the offence vehicle does not possess driving licence or fail to renew the driving licence after expiry of validity period, the insurance company is not liable to pay compensation to the claimants.
8. In view of the judgment of the Hon'ble Apex Court in Beli Ram case, the award passed by the Commissioner ordering pay and recover directing the insurance company to pay at the first instance and recover the same from the second respondent i.e. owner of the vehicle is erroneous and liable to be set aside and accordingly it is set aside.
9. This Court on 17.03.2015 granted stay in I.A. No.1 of 2015 (CMAMP No.302 of 2015) and on 26.02.2016 in I.A. No.1 of 2016 (CMAMP 232 of 2016) in CMA No.163 of 2016 permitted the respondent claimants to withdraw 25% of the deposit amount that the same shall not be recovered by the insurance 4 2012 ACJ 1891 5 company from the claimants and the respondent claimants are entitled to recover the rest of the amount from the employer i.e. 1st opposite party.
10. With the above said direction, the Civil Miscellaneous Appeal is allowed and order of the Commissioner for Employees Compensation and Assistant Commissioner of Labour, Kadapa is hereby set aside.
Miscellaneous applications pending, if any, stands closed.
_______________________________________ JUSTICE TARLADA RAJASEKHAR RAO Date: 29-11-2022 Harin 6 THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO 157 C.M.A. No. 163 of 2022 Date: 29-11-2022 Harin