HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.1287 of 2011
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed against order dated 06.12.2010 in W.C.No.213 of 2007 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-I, Hyderabad, (hereinafter referred to as 'the Commissioner'). The said case was filed by respondent Nos.1 to 3 herein seeking compensation for death of one D. Venkatesh (hereinafter referred to as 'deceased') in an accident on 06.06.2007 and the same was allowed by the Commissioner granting compensation of Rs.4,13,325/-. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed at the instance of the insurance company i.e., opposite party No.2 before the Commissioner.
2. The appellant herein is opposite party No.2, respondent Nos.1 to 3 herein are applicants and respondent No.4 herein is opposite party No.1 before the Commissioner. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
3. The applicants have filed the present appeal seeking compensation for death of the deceased. The deceased was working as 2 MGP,J CMA_1287_2011 driver on tractor and trailer bearing Nos.AP 37 AE 8957 and AP 04 U 3107, which are owned by opposite party No.1. He was on duty on 06.06.2007 and after unloading earth, he was going towards Ravirala village tank and when he reached near Gade Chinna Mallaiah land, the tractor accidentally fell down into the ditch, due to which, the deceased sustained serious injuries and died while he was being shifted to hospital. A case in Crime No.236 of 2007 was registered in Pahadisharif Police Station and investigation was taken up. The applicants also stated that the deceased was aged about 22 years at the time of the accident and he died during the course and out of his employment with opposite party No.1. The deceased was earning an amount of Rs.3,500/- per month towards wages from opposite party No.1. Therefore, both the opposite parties were jointly and severally liable to pay compensation for the death of the deceased.
4. Opposite party No.1 remained ex parte. Opposite party No.2 filed its counter denying the age, wages of the deceased, manner of the accident and employee and employer relationship between the deceased and opposite party No.1. It is also denied that the deceased was holding a valid driving license at the time of the accident. Opposite party No.2 also filed its additional counter stating that deceased was not holding valid driving license and risk is not covered 3 MGP,J CMA_1287_2011 under insurance policy as opposite party No.1 did not pay any premium towards coverage of risk of driver. Hence, prayed to dismiss the claim petition.
5. In support of their case, the applicants got examined A.W.1 and got marked Exs.A-1 to A-6. Opposite party No.2 got examined R.W.1 and got marked Ex.B-1, in support of its case.
6. On the basis of the above pleadings and evidence, the Commissioner framed the following issues for consideration:
"1. Whether the deceased late Sri D. Venkatesh died due to the injuries sustained in the accident on 06.06.2007 during the course and out of his employment as driver on the tractor bearing No.AP 37 AE 8957 under the employment of opposite party No.1?
2. If yes, who are liable to pay compensation to the dependants of the deceased? and;
3. What is the amount of compensation entitled by the dependants of the deceased?"
7. After considering the evidence and documents filed by both sides, the Commissioner awarded an amount of Rs.4,13,325/- towards compensation to the applicants. Aggrieved by the same, the present appeal is filed at the instance of opposite party No.2 i.e., the insurance company.
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8. Heard, the learned counsel for appellant/opposite party No.2 and the learned counsel for respondent Nos.1 to 3/applicants. The appeal against respondent No.4/opposite party No.1 was dismissed by order of this Court dated 12.07.2016.
9. The main contention of the learned counsel for the appellant/opposite party No.2 is that no extra premium is paid to cover the risk of driver and further, there is no valid and effective driving license to the deceased at the time of accident. However, the Commissioner without considering the same has awarded compensation. Hence, he prayed to set aside the order passed by the Commissioner by allowing the present appeal.
10. Per contra, the learned counsel for respondent Nos.1 to 3/applicants argued that the Commissioner has considered all the aspects and granted just and reasonable compensation to the applicants for which interference of this Court is not required.
11. Now, the point for determination is as follows:
"Whether the applicants are entitled for compensation as granted by the Commissioner?"5
MGP,J CMA_1287_2011 Point:-
12. This Court perused the entire evidence placed on record. Applicant No.1, who is father of the deceased was examined as A.W.1 and deposed reiterating the contents of the claim petition. He also deposed with regard to the manner of the accident. In his cross- examination, he has stated that he is not eye-witness to the accident and he has not given complaint to the police regarding the accidental death of his son. He denied the suggestion that the deceased was not working under opposite party No.1 and that no documentary proof is filed to show the age and employment of the deceased. He admitted that he has not filed driving license of his son. He also denied the suggestion that Exs.A-3 to A-6 were created for the purpose of this case.
13. Opposite party No.2 got examined its Assistant Manager (Legal) as R.W.1. In his evidence, he stated that the driver is not covered under the insurance policy under Ex.B-1 and that the deceased was not holding valid driving license. In his cross-examination, R.W.1 stated that any policy will usually cover the risk of driver. However, he has further stated that in the present policy there is an endorsement written with pen that 'driver is not covered in this policy'. 6
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14. It is pertinent to state that the applicants apart from examining A.W.1 got marked Exs.A-1 to A-6. Ex.A-1 is First Information Report (FIR) and Ex.A-4 i.e., final report disclose that based on the complaint police took up investigation and after thorough investigation laid charge sheet. It is stated by the police that employment of the deceased is driver on tractor bearing No.AP 37 AE 8957 and the accident occurred on 06.06.2007, while the deceased was driving the said tractor. Ex.A-3 is postmortem examination report, which shows that the cause of death of the deceased was due to head injury. The documents under Exs.A-1 and A-2 amply establish that the deceased was working as driver of tractor bearing No.AP 37 AE 8957 and the accident occurred while he was driving the said tractor, which is owned by opposite party No.1, in the capacity of its driver.
15. Ex.B-1 insurance policy shows that it was subsisting as on the date of the accident. As per opposite party No.2, the risk of driver was not covered by insurance company as no extra premium was paid. Therefore, opposite party No.2 i.e., insurance company is not liable to pay compensation. The Commissioner relied upon the judgment of this Court, in the case of National Insurance Company Limited v. 7
MGP,J CMA_1287_2011 D.Sivasankar 1, wherein it is held that the insurance company is statutorily liable to pay compensation in respect of driver, in view of Proviso (i) (a) to Section 147 of the Motor Vehicle Act, 1988, and cannot contend that no extra premium is paid to cover the liability of the driver by the insured.
16. In this regard, it is apt to refer to the decision of this Court, in the case of United India Assurance Company Limited v. Shandoorapu Gangavva and another 2, wherein the Single Judge of this Court, while dealing with the liability of insurance company, in respect of death of a driver in case of the policy taken by the owner of the vehicle as 'Act Liability' without payment of extra premium, has dismissed the appeals filed by the insurance company by taking similar view, which was observed in National Insurance Company Limited v. Prembai Patel 3, and held that liability of insurance company qua employees of the owner could not be unlimited, but it would be limited to that arising under the Workmen's Compensation Act, 1923. However, it is to be seen that the Hon'ble Supreme Court in Prembai Patel's case (3rd cited supra), held that where the policy mentions "a policy for Act Liability" or "Act Liability", the liability of the 1 2006 (4) ALD 398 2 Common judgment, dt. 09.03.2023, CMA (SR) Nos. 4208, 4214 and 4220 of 2006 3 AIR 2005 SC 2337 8 MGP,J CMA_1287_2011 insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Compensation Act, 1923.
17. In view of the above discussion and considering the principle laid down by the above said authorities and as the deceased is an employee rendering his services to the opposite party No.1 under employee- employer relationship, the contention of the learned counsel for the opposite party No.2 that the policy does not cover the risk of driver, in view of non-payment of additional premium, is unsustainable. Therefore, opposite party No.2 is liable to indemnify opposite party No.1 i.e., owner of the vehicle.
18. Learned counsel for the appellant/opposite party No.2 also raised a plea that the deceased was not having valid and effective driving license at the time of the accident.
19. It is pertinent to state that except taking a mere plea, opposite party No.2 has not adduced any cogent and convincing evidence by examining any persons such as Road Transport Authority (RTA) officials to prove that the deceased was not holding a valid driving license. Furthermore, there is no evidence on record to show that the deceased was charged under Section 181 of the Motor Vehicle Act, 9 MGP,J CMA_1287_2011 1988. Under these circumstances, this Court is of the considered opinion that the Commissioner having discussed elaborately came to the right conclusion and granted just and reasonable compensation to the applicants. Hence, interference of this Court into the findings of the Commissioner is unwarranted. The appeal is devoid of merits and the same is liable to be dismissed.
20. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order dated 06.12.2010 in W.C.No.213 of 2007 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-I, Hyderabad. There shall be no order as to costs. Miscellaneous applications pending, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 17.11.2023 GVR