THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL MISCELLANEOUS APPEAL No.39 of 2016
JUDGMENT:
The Oriental Insurance Company Limited, represented by its Divisional Manager, filed the above Civil Miscellaneous Appeal against order dated 28.05.2015 in W.C.Case No.6 of 2010 on the file of Commissioner for Employees' Compensation Act, 1923-cum-Assistant Commissioner of Labour, Ongole.
2. Parties to this judgment are referred to as per their array in W.C.Case No.6 of 2010.
3. Applicants filed the case against the respondents claiming Rs.4,00,000/- towards compensation with interest at 12% p.a. from the date of death till realization and for costs etc., for the death of Rayapudi Guravaiah, while working as cleaner in the lorry bearing No.AP27 V 8277 belonged to 2nd opposite party under Employees' Compensation Act, 1923 (for short "the Act 1923").
4. Applicants contended interalia that deceased Rayapudi Guravaiah, brother of applicants, while working as cleaner in 2 Lorry bearing No.AP27 V 8277 of 2nd opposite party, on 11.07.2009 at 5.30 a.m. when the lorry reached Nalgonda, first opposite party, drove lorry in a rash and negligent manner and dashed the lorry bearing No.AP37 T 6858, which was coming in opposite direction, as a result, both lorries were damaged. The cleaner of lorry bearing No.AP27 V 8277 sustained injuries and he was shifted to Government Headquarters Hospital, Nalgonda in 108 ambulance and while taking treatment, he died at 7.00 a.m. on 11.07.2009 in the hospital. It was averred that the accident was occurred out of employment and during the course of employment. 2nd opposite party is the owner of the vehicle, which was insured with 3rd opposite party. Therefore, respondents 2 and 3 are liable to pay compensation. The deceased is aged about 28 years and drawing Rs.3,500/- per month towards salary.
5. 2nd Opposite Party filed counter and contended interalia that he is the owner of lorry bearing No.AP27 V 8277 and it was insured with 3rd opposite party vide policy No.432900/31/2009/3824 for the period from 22.03.2009 to 21.03.2010; that Kandimalla Narasimha Rao is the driver of the lorry; that deceased never worked under his employment 3 and there is no employee and employer relationship; that applicants are major brothers of deceased and they are not dependants, as such they are not entitled for compensation and thus, prayed the Court to dismiss the application.
6. 3rd Opposite Party filed counter and contended interalia that the applicants are major brothers of deceased and they are not dependants and hence, they are not entitled for any compensation for the death of their brother; that the accident was not occurred during the course of employment; that as per Section 134 (c) of the Motor Vehicles Act, 1988 (for short "the Act 1988"), it is mandatory duty of the insured to furnish the particulars of policy, date, time and place of accident, particulars of deceased and the name of driver and particulars of driving license, however, 2nd opposite party did not comply with the statutory demand; that as per Section 158 (6) of the Act 1988, it is mandatory duty of the concerned police station to furnish all the relevant documents to the concerned insurer within 30 days from the date of information of accident, however no information was furnished by the Nalgonda II Town Police Station and eventually, prayed to dismiss the application. 4
7. Basing on the above pleadings, the tribunal framed the following points for consideration:
(1) Whether the applicants are entitled for compensation as claimed by the applicants? (2) Who are liable to pay compensation? (3) To what relief the applicants are entitled to?
8. On behalf of applicants, 1st applicant was examined as A.W.1 and Exs.A-1 and A-2 were marked. 2nd Opposite party was examined as R.W.1 and the General Manager of 3rd opposite party was examined as R.W.2. Copy of policy was marked as Ex.B-1.
9. Lower tribunal while dismissing the claim against the first opposite party (driver of vehicle), granted compensation of Rs.3,70,783/- and directed the 2nd and 3rd opposite parties to pay the amount jointly and severally within 30 days and in case of failure, interest at 12% p.a. shall be levied on the awarded amount from the date of accident till realization. Aggrieved by the said order, the above appeal is filed.
10. Heard Mrs.A.Jayanthi, learned counsel for appellant and Sri K.Koutilya, learned counsel for respondents 1 to 3 and none appeared for the respondents 4 and 5. 5
11. Learned counsel for appellant would submit that the applicants are not dependants as per Section 2 (d) of the Act 1923 and hence, they are not entitled for compensation. She would submit that R.W.1, owner of vehicle denied his engaging the deceased as cleaner of lorry and hence, in the absence of any evidence, deceased cannot be treated as employee of 2nd opposite party. She would also submit that since there is no employee and employer relationship, applicants are not entitled for any compensation. She would further submit that there is no evidence on record to show that applicants are depending on the income of deceased and thus, prayed the Court to allow the appeal.
12. Learned counsel for respondents 1 to 3 would submit that evidence on record would establish that deceased was engaged as a cleaner of 2nd opposite party and the deceased during the employment and out of the course of employment and hence, considering all the aspects, tribunal awarded the compensation and thus, prayed the Court to dismiss the appeal.
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13. The following substantial questions of law arise for consideration:
(1) Whether the deceased Rayapudi Guravaiah died during the employment and out of the course of employment?
(2) Whether the applicants are dependants and hence, they are entitled for compensation under the provisions of the Act 1923?
14. Applicants are brothers of deceased Guravaiah, died on 11.07.2009 at 7.00 a.m. due to accident involving lorry bearing No.AP27 V 8277 with another lorry bearing No.AP37 T 6858. In fact, the driver, who was driving the lorry bearing No.AP37 T 6858 gave complaint to police. The cleaner of lorry vehicle bearing No. AP 27 V 8277 was shifted to Government Headquarters Hospital, Nalgonda in 108 ambulance and while taking treatment, he succumbed to injuries.
15. Though it was contended by 2nd opposite party that he did not engage the deceased as cleaner, the evidence on record would disclose that deceased died due to accident on 11.07.2009. The complaint was lodged by the opposite lorry driver bearing No.AP37 T 6858. According to the complaint, cleaner of lorry bearing No.AP27 V 8277 sustained injuries 7 due to accident and the driver of lorry bearing No.AP27 V 8277 drove the same in a rash and negligent manner. The evidence of R.W.1 has to be considered cautiously. During the cross examination, R.W.1 deposed that he is the owner of lorry bearing No.AP27 V 8277 and after the accident, he sold away the vehicle. He deposed that on the date of accident, Kandimalla Narasimha Rao was the driver on duty, however, he deposed that he does not know the deceased and he has no acquaintance. He further deposed that he sent one Srinu as cleaner on that vehicle.
16. It is pertinent to mention here that having deposed that he sent Srinu as cleaner of the vehicle, he further deposed that he does not know the particulars of said Srinu; usually, he used to send available persons, anybody as cleaner and he is not particular. This part of the cross examination of R.W.1, in the considered opinion of the Court, is only an afterthought to deny his liability, being employer. Going by the documentary evidence, Ex.X-1 F.I.R, this Court is of the opinion that deceased was engaged as cleaner by R.W.1 and he died due to accident on 11.07.2009 out of employment 8 and during the course of employment. This point is answered accordingly.
17. Whether the applicants are entitled to claim compensation as dependants?
18. 'Dependant' is defined under Section 2 (d) of the Act 1923, which reads thus:
(d) "dependant" means any of the following relatives of a deceased workman, namely-
(i) a widow, a minor [legitimate or adopted] son,
an unmarried [legitimate or adopted]
daughter, or a widowed mother; and
(ii) if wholly dependant on the earnings of the
workman at the time of his death, a son or a
daughter who has attained the age of 18 years and who is infirm;
(iii) if wholly or in part dependant on the earnings of the workman at the time of his death-
(a) a widower,
(b) a parent other than a widowed mother,
(c) a minor illegitimate son, an unmarried
illegitimate daughter or a daughter [legitimate or illegitimate or adopted] if married and a minor or if widowed and a minor,
(d) a minor brother or an unmarried sister or a widowed sister if a minor,
(e) a widowed daughter-in-law,
(f) a minor child of a pre-deceased son, 9
(g) a minor child of a pre-deceased daughter where no parent of the child is alive, or
(h) a paternal grandparent if no parent of the workman is alive];
Explanation.- For the purposes of sub-clause (ii) and items
(f) and (g) of sub-clause (iii), reference to a son, daughter or child include an adopted son, daughter or child respectively;
19. A perusal of the above definition makes it clear that a widow, a minor [legitimate or adopted] son, an unmarried [legitimate or adopted] daughter, or a widowed mother, in the first place are to be shown as dependants. As per Clause (ii) major son and daughter are also been shown as dependants, if they are infirm. As per Clause (iii), some more persons were also shown as dependants. However major brothers are not included as dependants. Though the appellant and 2nd opposite party raised contention before the lower tribunal stating that applicants are not dependants as per Section 2
(d) of the Act 1923, however, for the reasons best known, in spite of pleadings and cross examination of A.W.1, lower tribunal failed to consider the said aspect, which goes to the root of the matter.
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20. During the evidence of A.W.1, he deposed that deceased died unmarried and parents pre-deceased him. No evidence was produced to show that applicants 1 to 3 are residing along with deceased and depend upon the income of the deceased. He further deposed that applicants 1 to 3 are residing at Ravavaram and deceased Guravaiah used to reside at Chimakurthy and used to come to them after completion of duty. He also deposed that applicants 1 to 3 are majors. The unequivocal admission made by A.W.1 makes it clear that applicants 1 to 3 are majors. Once the applicants are majors, they cannot be termed as dependants under Section 2 (d) of the Act 1923. Hence, the application filed by applicants claiming compensation as dependants due to death of Guravaiah is not maintainable. This point is answered accordingly.
21. In view of the foregoing discussion, since the applicants are not dependants of deceased, they are entitled to any compensation. Thus, the appeal is liable to be allowed.
22. Accordingly, the civil miscellaneous appeal is allowed and the order dated 28.05.2015 in W.C.Case No.6 of 2010 on 11 the file of Commissioner for Employees' Compensation Act, 1923-cum-Assistant Commissioner of Labour, Ongole is set aside. No order as to costs.
This Court admitted the appeal on 03.03.2016 and while granting stay in CMAMP No.88 of 2016 permitted the claimants to withdraw 50% of the deposited amount on furnishing bank guarantee for the said amount. If the claimants withdraw the amount pursuant to the interim order and the bank guarantee subsists, Insurance Company is at liberty to encash the bank guarantee. If the bank guarantee is not subsisting, appellant can recover the amount from the owner - 5th respondent.
As a sequel, all the pending miscellaneous applications shall stand closed.
__________________________ SUBBA REDDY SATTI, J 30th September, 2022 PVD