THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL MISCELLANEOUS APPEAL No.186 of 2017
JUDGMENT:-
This Civil Miscellaneous Appeal is filed by Shriram
Insurance Co. Ltd. aggrieved by the award dated 29.09.2015
passed in W.C.No.07 of 2012 on the file of Commissioner for
Workmen's Compensation and the Assistant Commissioner of
Labour, Dharmavaram.
2. The brief facts of the case are that wife and children of the
deceased filed W.C.No.07 of 2012 claiming compensation of
Rs.10,00,000/- on account of death of the deceased due to his
involvement in an accident. The deceased worked as driver of van
bearing No.AP 02 W 4863, belongs to opposite party No.1. On
26.09.2011, the deceased drove the vehicle loaded with oranges
from Battalapalli to Devanahalli on Bangalore-Ballery road. In the
middle of the journey, the deceased stopped the vehicle on the
extreme left side of the road and went to Dhaba and while he was
returning from the dhaba, rider of scooter bearing No.KA 04 1029
drove it in a rash and negligent manner and hit the deceased, due
to which the deceased sustained serious head injuries.
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Immediately he was shifted to Devanahallil hospital and from
there he was referred to NIMHANS, Bangalore. The deceased died
on the way to NIMHANS hospital. As the deceased died during the
course of employment under opposite party No.1, the present
claim is filed.
3. Opposite party No.1 remained exparte before the learned
Commissioner.
4. Opposite party No.2 filed counter denying age, employment
of the deceased and employer and employee relationship between
the deceased and opposite party No.1. Eventually, prayed to
dismiss the claim application.
5. Basing on the above pleadings, Commissioner framed the
following issues for trial:
1. Whether the deceased was an employee as per the provisions of
the Workmen Compensation Act, 1923 and he met with the
accident arising out of and in course of his employment resulting
to death?
2. What was the age of the deceased employee at the time of
accident?
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3. What were the wages paid to the deceased employee at the time of
accident?
4. What is the amount of compensation payable?
5. Who are liable to pay compensation?
6. On behalf of the applicants, applicant No.1 was examined as
AW1 besides examining cleaner of van, who is also witness as
AW2 and Exs.A1 to A8 were marked. Employee of the Insurance
Company was examined as RW1 and Ex.B1 is filed through her.
7. After considering the evidence adduced on either side,
Commissioner passed the award directing opposite party Nos.1
and 2 to jointly and severally pay compensation of Rs.4,84,375/-
within thirty days from the date of the award by way of demand
draft. Aggrieved by the same, the present appeal is filed by
opposite party No.2.
8. Heard learned counsel for the appellants and learned
counsel for respondent No.1 to 3.
9. Learned counsel for the appellant would submit that Commissioner failed to appreciate that applicants are not entitled for compensation under W.C. Act as they failed to prove employer 4 and employee relationship either by examining opposite party No.1 or by adducing cogent evidence. He would submit that opposite part No.1 failed to file counter and give evidence, as such it is not established that deceased was workman under owner of the vehicle and died in the course of employment.
10. He would further submit that applicants failed to prove age, income and occupation of the deceased and the compensation was awarded without there being any evidence and by wrongly assessing monthly wage as Rs.5,183.25/-.
11. Learned counsel would further submit that the deceased was not holding any driving license to drive van and it is basic duty of the employer or the applicants who claim that the deceased was working as driver of the insured vehicle. He would further submit that the owner of van did not choose to contest the claim before the Commissioner and did not adduce any evidence that deceased was under his employment.
12. Learned counsel for the appellant would submit that insurance company can be made liable to pay the compensation only if the conditions of policy are not violated, whereas in this 5 case, the deceased was not holding valid driving license, as such insurance company is not liable to pay compensation to the applicants. He would further submit that the Hon'ble Apex Court time and again held that when conditions of policy are violated, fixing liability on insurance company is bad and Commissioner erred in fixing liability on insurance company instead of fixing liability on opposite party No.1 alone. Hence, he prays to allow the appeal.
13. Learned counsel for respondent Nos.1 to 3 would submit that opposite party No.1 is owner of van which was driven by the deceased and the relationship between opposite party and the deceased as employer and employee is established through the cross-examination of AW2, wherein he stated that he is working as cleaner of the van and that deceased was working as driver. Learned counsel would submit that AW2 further deposed that the deceased was working as driver under opposite party No.1 since three years prior to the accident. On the date of accident they were transporting oranges from Batthalapalli to Devanahalli. Thus, learned counsel for respondent Nos.1 to 3 would submit that the death of the deceased was occurred during course of 6 employment and out of employment, which are necessary requirements to be proved in the claim filed under W.C. Act.
14. Learned counsel would further submits that in view of the decision of the Hon'ble Apex Court reported in National Insurance Company Limited v. Swaran Singh 1, the burden lies on the insurance company to prove that the driver was not having valid driving license at the time of accident. He would submit in the present case insurance company failed to prove the burden lying on it. Hence, there is no illegality in the award impugned. Therefore, he prays to dismiss the appeal.
15. While admitting the appeal the following substantial questions of law are formulated:
1. Whether the Tribunal below can assume employment of the deceased with respondent No.4/O.P.No.1 and the respondent No.4 admittedly failed to appear and contest the case and as the respondent Nos.1 to 3 failed to file documents to prove employment of the deceased and wage of the deceased with the respondent No.4/O.P.No.1?1
2004 (2) ALD 36 7
2. Whether there was any material on record except for self serving statement of the applicants would entitle the authority/Workmen Commissioner to pass the order under challenge?
3. Whether the deceased met with accident during the course of employment and out of the employment was established on the basis of material available?
4. Whether the authority/Workmen Commissioner, on the basis of Minimum Wages Act, by assuming that the deceased was driver without calling for the records from respondent No.4 for non-production of record?
5. Whether the pleadings if consider would prove the perverse order of the authority/Workmen Commissioner i.e. whether the deceased met with the accident during the course of employment and out of the employment?
6. Whether Workmen Commissioner is justified in granting compensation of Rs.4,84,375/- without there being any documentary evidence to prove the wages of the deceased?
7. Whether Workmen Commissioner is justified in granting compensation without following principles laid down in Workmen Compensation Act?
8. Whether Workmen Compensation is justified in granting compensation when the terms and 8 conditions of the policy violated, the deceased was not holding any driving license?
Substantial Questions 1 to 3 Since these questions of law are interrelated, they are answered together.
16. Statutory requirements to be proved in claims of this nature are that 1) employer-employee relationship; 2) accident arose out of employment and during the course of employment and 3) policy issued by the insurer covers the risk of the workman in question.
17. Coming to the facts of the case, insurance company is disputing the relationship of employer and employee between the opposite party No.1 and deceased. By examining AW2 cleaner of vehicle, claimants proved that deceased was working as driver of vehicle on the date of accident. In fact, A.W.2 deposed that deceased was working as driver under opposite party No.1 since three years prior to the accident. In the absence of any contra evidence the finding recorded by learned Commissioner that the deceased was working as driver does not brook interference from Court. In fact, learned Commissioner also considered Exs.A1 to A4, wherein the occupation of the deceased was shown as driver 9 under opposite party No.1. Therefore, first requirement of employer and employee relationship is proved.
18. With regard to the second requirement a perusal of cross- examination of AW2 discloses that on the date of accident they were transporting oranges from Batthalapalli to Devanahalli. Thus, it is clear that the death of the deceased occurred during course of employment and out of employment
19. The other contention raised by learned counsel for the appellant is that the deceased did not possess valid driving license at the time of alleged accident. The burden of proof lies on insurance company to prove that driver has no driving license and the employer was guilty of negligence in allowing driving the vehicle by an unlicensed driver and insurance company cannot avoid its liability unless the breach of conditions of policy by the driver was so fundamental as to the cause of the accident. No evidence was let in by the Company. Mere pleading is not sufficient. Pleading should be supported by evidence. Thus appellant's contention regarding driving license falls to ground. 10
20. As there is no dispute with regard to existence of insurance policy and as coverage of risk of the deceased is also not disputed, insurance company cannot escape from its liability.
21. Apart from the above, learned counsel for the appellant raised a contention with regard to income of the deceased. In this regard though the applicants claimed the income of deceased as Rs.8,000/- per month, as there was no documentary evidence in proof of the same, Commissioner took the income of the deceased as Rs.5,183.25 paise, which is in line with the minimum wages fixed by the Government vide G.O.Ms.No.83 LET & F (Lab-II) Department, dated 22.11.2006 and published in A.P. Gazette part I No.723, dated 04.12.2006, to the light vehicle driver.
22. Learned Commissioner, after considering all the aspects basing on oral and documentary evidence came to the conclusion that the death of the deceased took place while he was on duty. Nothing contra was produced or elicited during the course of cross examination of A.W.1 or A.W.2. The statutory requirements of relationship of employer and employee, occurrence of death of the deceased out of employment and during course of employment and coverage of risk under insurance policy are proved. 11
These substantial questions of law are answered accordingly.
23. There are no grounds, which brook interference of this Court and the same is liable to be dismissed.
24. Accordingly, the Civil Miscellaneous Appeal is dismissed confirming the Award dated 29.09.2015 passed in W.C.No.07 of 2012 on the file of Commissioner for Workmen's Compensation and the Assistant Commissioner of Labour, Dharmavaram. No costs.
Miscellaneous Petitions pending, if any, shall stand closed.
________________________________ JUSTICE SUBBA REDDY SATTI Date: 27.09.2022 ikn 12 THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI C.M.A.No.186 of 2017 Date: 27.09.2022 ikn