THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
MACMA.No.357 of 2011
JUDGMENT:
This appeal is filed by the insurance company challenging the award dated 31.12.2008 in OP.No.661 of 2006 passed by the Chairman, Motor Accident Claims Tribunal cum V Additional District Judge, Karimnagar.
2. The facts of the case are as under:
Initially the claim petition was filed under Section 166(1)(C) of the Motor Vehicles Act (for short 'the Act') by the claimant Nos.1 to 4, who are the wife, children and mother of the deceased, who died in a road accident occurred on 25.01.2006 at about 7 PM at Nittur village involving the tractor bearing No. F/R Tr.No.AP-15-T/R-L-629 owned by the respondent No.1 (father of the deceased) and insured with the respondent No.2. Subsequently, the provision of law was amended from Section 166(1)(C) to Section 163-A of the Act.
3. It is not in dispute that the deceased is the son of the respondent No.1 and he was driving the offending tractor on 25.01.2006. The case of the claimants is that when the deceased was ploughing the land of Velpuri Rajam of Nimmnapalli village, the tractor turned turtle since its wheels got heavy mud into them due to which the deceased fell down form the tractor and succumbed. It was stated in the claim petition that the deceased was 38 years and earning Rs.7,500/- per month on his agriculture and as driver on the offending vehicle. A case in Cr.No.32 of 2006 was registered in the Peddapalli Police Station for the offence under Section 304-A of the Indian Penal Code.
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4. The respondent No.1 remained ex parte. The respondent No.2, insurance company, filed counter stating that that there is no relation of master and workman between the respondent No.1 and the deceased. Since the deceased is the son of the respondent No.1, there is collusion between the family members of the deceased in lodging the claim petition. The offending vehicle is not insured with the respondent No.2.The deceased did not have driving licence and was not authorized to drive the offending vehicle. The deceased himself was responsible for the negligent act and the petition is not maintainable.
5. The claimants examined themselves as P.W.1, P.W.2 and P.W.3. Exs.A1 to A7 were marked on behalf of the claimants. The respondent No.2 examined R.W.1 and marked Ex.B1, insurance policy.
6. The tribunal below held that since the provision of law was amended from 166(1)(C) to Section 163-A of the Act, it is sufficient for the claimants to prove that due to the involvement of the vehicle when the accident had occurred. The tribunal below relied on the evidence of P.W.1 and came to the conclusion that the deceased took the offending vehicle to plough the land of one Velpuri Rajam and when the deceased was ploughing, the mud got stuck into the wheels of the tractor and accidentally, the tractor turned turtle and the deceased fell down. The tribunal below held that it is not uncommon when one of the family members of the joint family purchases a tractor or motor cycle, the unemployed family members drive such vehicles to avoid payment of salary to other driver and to provide self employment and also to keep the vehicles fit. Thus, there is implied relationship of master and workman between the respondent No.1 and the deceased; during the course of such employment, when the death of the driver occurs, the legal representatives are to be compensated and they can 3 approach either the Workman's Compensation Court or the Forum constituted under the Motor Vehicles Act. Thus, the tribunal held that the decease died during the course of employment on the offending vehicle.
7. The tribunal below fixed Rs.3,000/- as the salary of the deceased; took the annual income as Rs.36,000/-; after deducting 1/3rd (Rs.12,000/-) towards personal expenses, assessed the income of the deceased at Rs.24,000/- per annum. Since the deceased was aged 38 years, multiplier '16' was adopted and compensation of Rs.3,84,000/- for loss of dependency. Apart from that, the tribunal below awarded Rs.2,000/- towards funeral expenses; Rs.2,500/- towards loss of estate and Rs.5,000/- towards loss of consortium, totalling to Rs.9,500/- for non-pecuniary damages. In total, the tribunal below awarded compensation of Rs.3,93,500/-.
8. Sri V. Sambasiva Rao, learned counsel for the appellant- insurance company, vehemently argued that the deceased is not the driver of the offending vehicle, since the deceased is apparently is the son of the respondent No.1, owner of the vehicle. Therefore, the tribunal below erred in awarding compensation treating the deceased as a deemed employee and such concept of deemed employee is not recognized in law. The deceased himself is responsible for the accident. The learned counsel relied on the following decisions:
NATIONAL INSURANCE CO. LTD. v. SWARAN SINGH1;
DHANRAJ v. NEW INDIA ASSURANCE CO. LTD.2; NATIONAL INSURANCE COMPANY LIMITED v. SABIA BEGUM3;
GOTTUMUKKALA APPALA NARASIMHA RAJU v. NATIONAL 1 2004 ACJ 1 2 (2004) 8 SCC 553 3 ACC 2006 2 692 4 INSURANCE CO. LTD.4; JAYAVARAPU RAJAMMA v. JAYAVARAPU LAXMINARAYANA5; NINGAMMA v. UNITED INDIA INSURANCE COMPANY LIMITED6 and UNITED INDIA INSURANCE COMPANY LIMITED v. S.K. IMAM7.
9. Per contra, Sri. T.S. Rayulu, learned counsel for the claimants, submitted that the deceased was driving the offending vehicle of the respondent No.1 and he has to be treated as an employee of the respondent No.1. The finding of the tribunal below is appropriate and the impugned award does not require any interference from this Court. Learned counsel has also drawn the attention of this court to the finding of the tribunal below in paras 9 and 10 to buttress his contention that the deceased was employee of the respondent No.1.
10. Heard the learned counsel for the appellant - insurance company and the learned counsel for the respondents-claimants.
11. The main point that needs to be decided is whether the deceased can be treated as an employee/workman of the respondent No.1, owner of the vehicle, who is the father of the deceased.
12. There is a specific claim that the deceased is the employee of the respondent No.1. But unfortunately, the respondent No.1 remained ex parte. Though the Motor Vehicles Act, relating to award of compensation for motor accident, is a beneficial legislation, leverage cannot be given to the claimants unless there is acceptable and reliable evidence on record. The insurance company in its counter seriously opposed the claim and denied the relationship of master and workman between the respondent No.1 and the deceased. The tribunal 4 2007 (3) SCALE 364 5 2008 ACC 551 6 (2009) 13 SCC 710 7 2019 ACJ 144 5 below merely went by the oral evidence of P.Ws.1 and 2 and came to the conclusion that the deceased is an employee under his father (respondent No.1).
13. The deceased being a family member and son of the respondent No.1, need not be an employee of the respondent No.1. Unless there is some evidence to show that the deceased was the employee of the respondent No.1, the tribunal below could not have presumed such master and workman relationship. There is no tort feaser involved in the accident. Since the vehicle was driven by the deceased himself, claimants would be entitled to get compensation only if it is proved that the deceased was a third party. There are possibilities, discussed supra, like the deceased working for his father or assisting his father in agricultural work. In such case, the insurance company is not liable to pay any compensation.
In SABIA BEGUM's case (3 supra), the erstwhile High Court of Andhra Pradesh held as under:
"... As much as the very employment was in dispute, the real question in controversy is, whether the deceased was in employment or not, as on the date of accident, with the first Opposite Party. As I have already discussed, except the self- serving statement of the interested witness, i.e. A.W.1, there is no other independent evidence on record to prove the employment of the deceased, as such, it cannot be said that the deceased was employed by his own father for the purpose of driving the vehicle. May be that unfortunate applicants are dependants of the deceased, but in absence of proving employment of the deceased with the owner of the vehicle, they are not entitled to claim any compensation. Thought I am conscious of the fact that the scheme of the Act is a beneficial legislation to the accident victims, but, at the same time, the various provisions of the legislation which are in the nature of quasi-penal one, have to be construed strictly. Entertaining any claim, like the one in this case, amounts to travelling beyond the scope of legislation."
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In S.K. IMAM's case (7 supra), the erstwhile High Court of Andhra Pradesh held that even if the vehicle is driven by family member, insurance company is liable to pay provided there is documentary evidence to prove that the deceased was an employee of a family member (owner of the vehicle).
14. The tribunal below has taken liberal view by giving a finding that the deceased is an employee of the respondent No.1, which is a common practice. The tribunal below cannot assume or infer any such contractual relationship unless there is some proof either documentary or oral. Hence, the said finding needs to be set aside since there is no evidence whatsoever and that the tribunal below recorded the said finding on mere assumption.
15. The Supreme Court in GOTTUMUKKALA APPALA NARASIMHA RAJU's case (4 supra), while reiterating that there was no proof of contract of employment and no independent witness was examined, held that the contract of insurance is governed by the provisions of the Insurance Act. Unless it is governed, as above, the parties are free to enter into contract as for their own volition. A contract of insurance is to be construed in the first place from the terms used in it, which terms are themselves to be understood in their primary, natural, ordinary and popular sense (see para 17).
16. The erstwhile High Court of Andhra Pradesh in JAYAVARAPU RAJAMMA's case (5 supra) held as under:
"...Claims by the kith and kin of the insured for injuries or their legal representatives in case of their death in the accident have to be treated as third party claims and are sustainable if the policy in question covers such third party claims. Thus, the determination of the maintainability of the claims for compensation on the facts and circumstances of each case depends upon the terms and conditions of the insurance policy 7 involved therein. Accordingly, the reference is answered in the following terms:
1. A statutory insurance policy in terms of Section 147 of the Act covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle.
2. Section 147 of the Act does not require an insurance company to assume risk for death or bodily injury to the owner of the vehicle.
3. An insurer can enter into a contract of insurance with the insured covering a risk wider than the minimum requirement of the statute whereby the risk to the owner of the vehicle/insured or gratuitous passengers or such other risks not covered by the statute can also be covered, for which premium is paid.
4. The owner of the vehicle/insured driving or travelling in the vehicle in case of injuries or his legal representatives in case of his death in the accident can make a claim only if the policy by its terms covers such risk.
5. The kith and kin of the insured for injuries and their legal representatives in the event of their death in the accident can sustain claims for compensation as third party claims, provided the relevant policy of insurance covers such a risk.
6. The terms of the insurance policy determine the liability of the insurer in each case.
7. Mere nomenclature of the policy as a comprehensive policy or otherwise is not the guide, but the specific terms and conditions of the policy govern the existence and extent of the liability of the insurer.
(emphasis supplied)
17. As borne out from the record, the tribunal below did refer to any of the judgments on the issue involved in this lis before arriving at the conclusion that the deceased is self-employed or employee under his father and further to hold that there is an implied relationship of master and workman between the respondent No.1 and the deceased. Though the provisions of the Motor Vehicles Act relating to 8 compensation are beneficial to the victims of road accidents and strictly the provisions of the Evidence Act are not applicable, it needs to be kept in mind that compensation cannot be awarded as reward for a mere asking to the claimants and on sympathetic grounds. The Court is bound by the settled principles of law and procedure. A presumption of fact should be guided by the relevant provisions under the Evidence Act. When there is a dispute regarding employer and employee relationship, the Court has to go by the evidence on record and not by assumptions and presumptions. But in the instant case, the tribunal below committed error in giving a finding without there being any evidence on record. As such, the finding of the tribunal below is set aside.
18. Since the finding of the tribunal below as regards the master and workman relationship is set aside, in the interest of justice, this Court considers it appropriate to remand the matter to the tribunal below by giving opportunity to the claimants and the insurance company to lead further evidence. The tribunal below shall take into consideration further evidence, if any, let in by the parties and also consider the judgments referred to above and also other relevant judgments and pass orders on merits, preferably, within a period of three months from the date of receipt of a copy of this judgment.
In view of the above, the civil miscellaneous appeal is allowed and the matter is remanded to the tribunal below, as above. As a sequel, the miscellaneous applications, if any, shall stand closed.
__________________ B. VIJAYSEN REDDY, J February 15th, 2021 DSK