THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
CIVIL MISCELLANEOUS APPEAL NO.1054 OF 2006
JUDGMENT:
This Civil Miscellaneous Appeal has been filed by Opposite Party No.2-Insurance Company challenging the Award of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-III, Hyderabad, in W.C. No.43 of 2005, dated 21.08.2006.
2. The brief facts leading to filing of this Appeal are that one Sri D. Srinivas Reddy died in an accident while working as driver of a tractor bearing No.AP28V-2243. The parents of the deceased filed WC No.43 of 2005 before the learned Commissioner under Workmen's Compensation Act seeking compensation of Rs.3,00,000/-. The deceased was 25 years of age at the time of accident. The opposite party No.1, who was the owner of the tractor, admitted the deceased as driver of his tractor and also admitted that the deceased died during the course of employment with him. The Opposite Party No.2/Insurance Company denied the employee and employer relationship of the opposite party No.1 and the deceased and also denied that the deceased is having a valid driving licence at the time of accident. After considering the entire evidence produced before him, the learned Commissioner has awarded a sum of 2 Rs.3,23,351/- towards compensation. Aggrieved by the said award, the insurance company filed the present appeal.
3. Heard Sri Kota Subba Rao, learned counsel for the appellant/insurance company and Sri G. Narender Reddy, learned counsel for the respondents 1 & 2/applicants. Perused the material available on record.
4. The learned counsel for the appellant/insurance company submits that the applicants have not proved that the deceased was working with the Opposite Party No.1 or that the wages paid by the Opposite Party No.1 by filing any authentic evidence. He submitted that in the FIR, the father of the deceased has mentioned that the deceased has taken the keys of the tractor from Mr. Mallikarjun i.e., the owner of the vehicle, but not as a driver. He further submitted that the deceased has driven the tractor at the time of accident, but he was not working as a driver. He further submits that the driving licence of the deceased was not filed by the applicants and therefore, the presumption to be drawn is that he did not have a licence and in such circumstances, the insurance company is not liable to pay the compensation. He further submits that though the applicants have claimed only a sum of Rs.3,00,000/-, the learned Commissioner has granted Rs.3,24,499/-, which is against the law laid down by the Hon'ble Supreme Court of India in many cases holding that the award cannot exceed the claim.
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5. The learned counsel for the appellant/insurance company further submits that there was no proof of the deceased holding any driving licence much less having a licence to drive the tractor. He also relied upon the statement of the deceased's father in FIR wherein he has stated that the key was taken from the owner of the tractor and therefore, even according to the father of the deceased, he was not working as a driver of the vehicle. Therefore, according to him, employee and employer relationship has not been claimed by the claimants at the first opportunity. Therefore, according to him, compensation awarded by the Commissioner is not justified.
6. The learned counsel for the respondents 1 & 2/applicants submits that the opposite party No.1, who is the owner of the vehicle has admitted the employment of the deceased, therefore, the employee and employer relationship is very much proved and also that the driving licence of the deceased was lost at the time of accident. He placed reliance upon the findings of the learned Commissioner in the award.
7. Having regard to the rival contentions raised by both the parties and also the material placed on record, this Court finds that the complaint before the concerned police was given immediately after the accident and in the FIR, the father of the deceased has stated that his son had taken the key from the owner of the tractor and was driving the tractor when the accident has occurred. However, by this 4 statement of the father of the deceased, it also cannot be presumed that the deceased was not working as driver of the tractor. The owner of the vehicle has confirmed before learned Commissioner that the deceased was working as his driver and this statement has not been rebutted by the appellant herein with any evidence to the contrary. Therefore, this Court does not find any reason to differ with the finding of the Commissioner on the employee and employer relationship between the owner of the vehicle and the deceased being established.
8. As regards the driving licence is concerned, the deceased was 25 years of age at the time of accident and therefore, it cannot be said that he might not have obtained the licence for driving the vehicle. The contention that the driving licence was lost at the time of accident has not been disproved and hence, this Court does not find any reason to interfere with the award passed by the learned Commissioner.
9. The Civil Miscellaneous Appeal is accordingly dismissed. No order as to costs.
10. Pending miscellaneous petitions, if any, in this CMA shall also stand dismissed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 15.11.2021 Isn