THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.640 of 2016
JUDGMENT:
1. The present civil miscellaneous appeal has been directed against order dated 16.08.2016 in W.C.No.9 of 2013 on the file of the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-II (FAC), Hyderabad, (hereinafter referred to as 'the Commissioner'), whereunder, the claim of the appellant herein for grant of compensation of Rs.12,00,000/- along with interest at 12% per annum for death of her husband Sri Gebaram @ Prabhuram Dewasi (hereinafter referred to as 'deceased') was dismissed. Aggrieved by the same, the present civil miscellaneous appeal is filed at the instance of the applicant before the Commissioner.
2. The appellant herein is applicant and respondents herein are opposite parties before the Commissioner. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
3. The brief facts of the case of the applicant are that deceased was workman within the meaning of the Employees' Compensation Act, 1923 (for short 'the Act') and he was working as driver for 2 MGP,J CMA_640_2016 Tavera car bearing No.AP 13 M 5352, which was owned by opposite party No.1 and insured with opposite party No.2. On 25.01.2013, while the deceased was on duty as a driver of the said vehicle, he was proceeding from Hinganghat towards Nagpur. At about 05:00 AM, when he reached Jamchowk in the limits of Samudrapur Police Station, an unknown trailer, which was coming from Nagpur to Chandrapur driven by its driver in rash and negligent manner in high speed, dashed the vehicle of the deceased. As a result, the deceased sustained grievous injures with multiple fractures and died, during his course of employment as driver. In this regard, Crime No.12 of 2013 was registered with Samudrapur Police Station of Maharastra State.
4. According to the applicant, the deceased was aged about 39 years at the time of accident and was being paid an amount of Rs.10,000/- per month towards salary and Rs.100/- per day towards batha by opposite party No.1. Opposite party No.1 had knowledge of the accident and paid some amount to the applicant towards funeral expenses of the deceased, but denied to pay compensation stating that the vehicle involved in the accident was insured with opposite party No.2 and risk is covered by opposite 3 MGP,J CMA_640_2016 party No.2. Hence, the applicant filed the present case before the Commissioner seeking compensation of Rs.12,00,000/- with interest at 12 % per annum from the date of accident till the date of realization.
5. Initially, on service of notice opposite party No.1 was represented by one advocate, but he failed to file counter and consequently, opposite party No.1 was set ex parte by the Commissioner and opposite party No.2 filed its counter. However, after the matter was reserved for orders, the same was re-opened and another advocate filed vakalath on behalf of opposite party No.1 along with counter.
6. The insurance company i.e., opposite party No.2 filed its counter before the Commissioner denying the case set up by the applicant that deceased was working as driver of the vehicle bearing No.AP 13 M 5352. The employee and employer relationship between the deceased and opposite party No.1 was denied. The payment of salary and batha, age of the deceased and holding of valid driving license and other averments of the claim petition filed by the applicant were denied by opposite party No.2 and prayed to dismiss the claim petition.
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7. It is the case of opposite party No.1 that the deceased was working as on and off driver for his vehicle which was involved in the accident. The deceased asked opposite party No.1 to give his vehicle along with another driver to visit Mahakumbha Mela in Maharastra State along with his family and friends. Accordingly, opposite party No.1 gave the vehicle to the deceased as he was working as on and off driver for his vehicle on the condition that his family and friends should bear diesel and other expenses. He also sent one Rajendra as additional driver. While so, on 25.01.2013, when the deceased was performing his duties as driver of the said vehicle, at about 05:00 AM when the vehicle reached Jamchowk, an unknown trailer coming from Nagpur driven in rash and negligent manner dashed the vehicle of the deceased. Due to the said accident, the in-mates of the vehicle including both the drivers sustained injuries and the deceased succumbed to such injuries on the same day at about 06:45 AM.
8. According to opposite party No.1, he used to pay an amount of Rs.400/- per day towards wages along with Rs.100/- batha and on an average, the deceased used to earn Rs.10,000/- per month excluding daily batha. He also stated that the deceased was aged 5 MGP,J CMA_640_2016 about 45 years on the date of accident. Further, opposite party No.1 stated that he claimed an amount of Rs.4,00,000/- towards vehicle damages from opposite party No.2, as the vehicle was insured with them vide policy bearing No.61150131120100003852 valid from 07.12.2012 to 20.10.2013. He also stated that both the deceased and other driver were holding valid driving licenses. According to him, opposite party No.2 being insurance company is liable to pay compensation to the applicant, if they are entitled for any.
9. In support of her case, the applicant examined herself as A.W.1 and Exs.A-1 to A-12 were marked. Opposite party No.2, got examined its Assistant Manager as R.W.1 and got Exs.B-1 to B-8 marked, in support of its case. Opposite party No.1 got examined himself as R.W.2 and got marked Exs.C-1 and C-2.
10. On the basis of the above pleadings and evidence, the Commissioner framed the following issues:
"1. Whether the deceased died due to the injuries sustained in the accident occurred on 25.01.2013 during the course and out of his employment as a driver on the Taver car bearing No.AP 13 M 5352 under the employment of O.P.1?
2. If yes, who are liable to pay compensation to the applicant?6
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3. What is the amount of compensation entitled by the applicant?"
11. After considering the pleadings and evidence on record, the Commissioner dismissed the claim petition of the applicant on the ground that she failed to establish employee and employer relationship between the deceased and opposite party No.1 and that the deceased died during such course of employment.
12. Heard both sides.
13. Learned counsel for the appellant/applicant contended that the Commissioner has not properly considered the evidence placed on record by the applicant and held that there was no employee and employer relationship between the deceased and opposite party No.1. The evidence of opposite party No.1 also clearly demonstrates that the deceased was employed with him as driver of the vehicle, which was involved in the accident. He also contended that deceased was driving the vehicle on the date of accident and he died during the course and out of his employment. As such, opposite party No.2 i.e., the insurance company is liable to pay compensation for his death.
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14. Learned counsel for respondent No.2/opposite party No.2 i.e., insurance company contended that the evidence on record clearly shows that the deceased, though was driving the vehicle on the date of accident, he was not having employee and employer relationship with the owner of the vehicle. The Commissioner has considered the entire evidence on record and rightly held that there was no employee and employer relationship between the deceased and opposite party No.1. The accident did not occur during the course and out of his employment as driver of the vehicle owned by opposite party No.1.
15. Now, the point for determination is as follows:
"Whether the findings of the Commissioner in holding that there was no employer and employee relationship between the deceased and opposite party No.1 suffer from any perversity, so as to give raise to substantial question of law?"
Point:-
16. A perusal of the entire evidence and pleadings on record shows that the deceased was working as on and off driver of the Tavera vehicle bearing No.AP 13 M 5352, which is owned by opposite party No.1. While so, on 25.01.2013, while the deceased was driving the said vehicle proceeding from Hinganghat towards Nagpur, the said vehicle met with an accident with one unknown 8 MGP,J CMA_640_2016 trailer which was being driven in rash and negligent manner at Jamchowk. The deceased sustained grievous injuries and succumbed to the same, while he was being shifted to the hospital. The deceased was aged about 39 years and was paid an amount of Rs.10,000/- per month towards wages and Rs.100/- per day towards batha by opposite party No.1. In this regard, Crime No.12 of 2013 was registered with Samudrapur Police Station of Maharastra State.
17. The evidence of opposite party No.1 as R.W.1 shows that he supports that the deceased was working as on and off paid driver of the above said vehicle. He also admitted the wages paid to the deceased as claimed by the applicant. However, he stated that the deceased has approached him to give his vehicle along with another driver for going to Mahakumbha Mela, Nagpur along with his family and friends. Accordingly, he gave the said vehicle to the deceased and sent one Mr. Rajendra as another driver. On 25.01.2013, at about 05:00 AM, when they were proceeding from Hinganghat towards Nagpur, they halted at Hinganghat railway gate. Then, Mr. Rajendra informed that he was tired and asked the deceased to drive the vehicle. The deceased was driving the vehicle and when 9 MGP,J CMA_640_2016 the vehicle reached Jamchowk, the vehicle met with an accident as one unknown trailer, which was driven in rash and negligent manner dashed the vehicle driven by the deceased. All the inmates of the vehicle sustained grievous injuries, but the deceased, who was driving the vehicle, succumbed to such injuries.
18. It is contended by opposite party No.2 that the final report and the statements of the witnesses recorded in Crime No.12 of 2013 registered on the file of Police Station Samudrapur, Maharastra State, clearly shows that the deceased was driving the vehicle, but the main driver was Mr. Rajendra. The said documents also show the occupation of the deceased as shop of electrical goods, but not as driver. Hence, the deceased was not driver of the vehicle and there is no employee and employer relationship between the deceased and opposite party No.1.
19. It is not disputed that the vehicle was driven by the deceased at the time of accident. It is not disputed that there was valid insurance policy and the deceased was holding a valid driving license. The occurrence of accident and death of the deceased is also not disputed. The only dispute is with regard to employee and 10 MGP,J CMA_640_2016 employer relationship between the deceased and opposite party No.1.
20. Admittedly, except oral evidence, no documentary evidence is placed on record by the applicant and opposite party No.1 to show that the deceased was working as driver of the vehicle involved in the accident and that the accident occurred during the course and out of his employment. On the contrary, the evidence of opposite party No.1 clearly shows that the deceased was working as on and off driver with him and on the date of accident, he had taken the vehicle along with another driver to go to Mahakumbha Mela along with his family and friends. Opposite party No.1, who was examined as R.W.2 has clearly admitted in his cross-examination that he has not instructed the deceased to take his vehicle on the date of accident. In fact, he stated that he has given the vehicle along with another driver to the deceased on the condition that diesel and other expenses shall be borne by his friends and family.
21. The cross-examination of R.W.1 shows that at one point of time, he states that the deceased and Rajendra were performing duties as drivers to his car at the time of accident. On the other hand, he says that he has not instructed the deceased to take his 11 MGP,J CMA_640_2016 vehicle and he only gave the vehicle at the request of the deceased along with another driver for use of himself, his friends and family. Opposite party No.1 or the applicant has not filed any document to show that the deceased was employed as driver of the said vehicle.
22. All these circumstances create a doubt on the stand taken by the applicant and opposite party No.1 that the deceased was driving the vehicle at the time of accident in capacity of driver of the vehicle. The evidence of opposite party No.1 creates doubt over the employee and employer relationship between him and the deceased. Except his oral evidence, no other documentary evidence is produced to prove the case set up by him in support of the applicant.
23. Learned counsel for the appellant/applicant relied upon a bunch of decisions of various Courts, but the same does not come to his rescue to support the stand taken by the applicant.
24. In view of the above, this Court is of the considered opinion that the evidence on record shows that the deceased has taken the vehicle for his personal use along with another driver and he was not driving the vehicle on the date of accident in capacity of the 12 MGP,J CMA_640_2016 employee of the owner of the vehicle i.e., opposite party No.1. Though, he was driving the vehicle at the time of accident, the same was not out of his employment as driver. He was driving the vehicle, as the driver of the vehicle was tired. Hence, he cannot be treated as paid driver of the said vehicle to come under the policy obtained by opposite party No.1 with opposite party No.2. The insurance company cannot be held liable and this appeal is devoid of merits and the same is liable to be dismissed.
25. In the result, the civil miscellaneous appeal is dismissed confirming the order dated 16.08.2016 in W.C.No.9 of 2013 on the file of the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-II (FAC), Hyderabad. There shall be no order as to costs. Miscellaneous applications, if any pending, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 09.11.2023 GVR