THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No. 459 of 2009
JUDGMENT:
Aggrieved by the order dated 03.07.2008 in W.C.Case No. 39 of 2005 passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-II, Hyderabad, the opposite party No. 3/Insurance Company has filed the present Civil Miscellaneous Appeal.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the Commissioner.
3. The brief facts of the case are that the applicants who are wife, daughter and parents of Late Masaipeta Ramulu (hereinafter referred as 'the deceased) have filed an application under the provisions of Employees' Compensation Act, 1923 (for short 'the Act') claiming compensation of Rs.4,00,000/- for the death of the deceased in the accident that occurred on 21.01.2005. It is stated that on the fateful day, upon instructions of opposite party No. 1, employer, the deceased was proceeding as workmen on the tractor and trailer bearing Nos. AP 36F 5361 and AP 36F 5362 towards Venkata Ratnapur village after unloading the sugar cane at the Narsapur Sugar 2 MGP,J CMA_459_2009 Factory. When the said tractor and trailer reached near TATA coffee factor at Brahmanapally village, the driver of the said tractor and trailer drove the vehicle in a rash and negligent manner at high speed and lost control over the vehicle, due to which, the said tractor and trailer turned turtle. As a result, the deceased succumbed to the grievous injuries on the spot. Based on the complaint, the Police, Toopran Police Station, registered a case in Crime No. 11 of 2005 under Section 304(A) of IPC. According to the applicants, the deceased was aged about 25 years and used to earn wages of Rs.3,000/- per month as workmen under the employment of opposite party No. 1 and used to contribute his entire earnings for the welfare of the family. Due to the sudden demise of the deceased, the applicants lost their only bread winner besides love and affection. Hence, the applicants have filed the application claiming compensation of Rs.4,00,000/- against the opposite party Nos.1 to 3, who are jointly and severally liable to pay the compensation.
4. Before the Commissioner, the opposite party No. 1 filed counter admitting that the deceased was employed under him as workmen on the said tractor and trailer and died while performing his duties. He further stated that the said tractor 3 MGP,J CMA_459_2009 and trailer was insured with opposite party No. 3. Hence, prayed to dismiss the application against him. On the other hand, the opposite party No. 3, appellant herein, filed counter denying the averments of the application such as employee- employer relationship, salary, age of the deceased and manner of accident. He further contended that unless and until it is proved that the deceased died during the course of his employment and the driver of the said tractor and trailer was having valid and effective driving licence, the Insurance Company is not liable to pay the compensation. He lastly contended that claim is excessive and exorbitant and prayed to dismiss the application.
5. On behalf of the applicants, AWs. 1 and 2 were examined and Exs.A.1 to A.7 were marked. Ex.A.1 is the certified copy of FIR, Ex.A.2 is the certified copy of charge sheet, Ex.A.3 is the certified copy of inquest report, Ex.A.4 is the certified copy of postmortem examination report, Ex.A.5 is the scene of offence panchanama, Ex.A.6 is the photostat copy of insurance policy and Ex.A.7 is the photostat copy of RC of the vehicle. On behalf of opposite party No. 1, RW. 1 was examined and Exs.B.1 to B.3 were marked. Ex.B.1 is the photostat copy of insurance policy, Ex.B.2 is the photostat copy of RC book of the vehicle and 4 MGP,J CMA_459_2009 Ex.B.3 is the photostat copy of driving licence. On behalf of opposite party No. 3, RW. 2 was examined and Exs.B.4 and B.5 were marked. Ex.B.4 is the terms and conditions of insurance policy and Ex.B.5 is the insurance policy.
6. The Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of deceased as Rs.2,320.50 per month, by applying the factor '216.91' for the age of applicant being 25 years, has awarded compensation of Rs.5,52,674/-.
7. Aggrieved by the compensation awarded by the Commissioner, the opposite party No. 3/Insurance Company has filed the present appeal to set aside the impugned order.
8. Despite service of notice, none appeared on behalf of applicants. Hence, heard learned Standing Counsel for the appellant and perused the record.
9. The main contention of learned Standing Counsel for the opposite party No. 3/Insurance Company is that though the insurance policy under Ex.B.5 is subsisting as on the date of the accident, the policy does not cover the risk of the deceased, as no additional premium was paid by the opposite party No. 1 5 MGP,J CMA_459_2009 to cover the risk of the deceased and prayed to dismiss the application against them.
10. This Court has perused the entire record and found that the applicant No. 1 was examined as AW. 1 and reiterated the averments of the application in her chief examination. She deposed that his deceased husband was working as labourer under the employment of opposite party No. 1, employer and succumbed to the grievous injuries during and in the course of her employment with opposite party No. 1. In support of her claim, she got examined AW. 2, eye witness to the accident. AW. 2, in his chief examination, deposed that he was eye witness to the accident and the deceased died while discharging his duties on the said tractor and trailer under the employment of opposite party No. 1. Though AWs. 1 and 2 were cross examined at length, nothing adverse was elicited to discredit their evidence.
11. On behalf of opposite party No. 3, its administrative officer, was examined as RW. 2 and Ex.B.4, terms and conditions of insurance policy and Ex.B.5, insurance policy, were marked. A perusal of Exs.B.4 and B.5 makes it abundantly clear that Rs.25/- was paid to cover the risk one employee. Further, RW. 1 in his cross examination, admitted that on the 6 MGP,J CMA_459_2009 date of accident, the policy of the said tractor and trailer was in force. However, except stating that the policy does not cover the risk of the deceased, the opposite party No. 3 has not evinced any cogent evidence to prove the same.
12. In Oriental Insurance Company Limited v. Meena Variyal and others 1, the Honourable Supreme Court observed as under:
"Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place.
The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of subsection (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 1 (2007) 5 SCC 428 7 MGP,J CMA_459_2009 of the Act. 14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods."
13. In National Insurance Company Limited v. Prembai Patel and others 2, the Honourable Supreme Court held as under:
"15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in clauses
(a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect. However, where the policy mentions "a policy for Act Liability" or "Act Liability", the liability of the insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act."
14. In view of the above discussion and principal laid down by the Apex Court, since the deceased is not a gratuitous passenger 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 Standing Counsel for 2 AIR 2005 SC 2337 8 MGP,J CMA_459_2009 the opposite party No. 3 that the policy does not cover the risk of the deceased, in view of non-payment of additional premium, is unsustainable. It is pertinent to note that the premium of Rs.25/- was paid to cover the risk of one employee under the Act and the word 'employee' includes all categories of workers. Therefore, the opposite party No. 3 cannot escape its liability on the ground that the additional premium was not paid to cover the risk of the deceased and is liable to indemnify the opposite party No. 1, employer i.e., owner of the said tractor and trailer.
15. Though several grounds were raised by the learned Standing Counsel for the appellant/insurance company, it appears that most of such grounds are based on question of fact but not on question of law, more particularly, when the opposite party No. 3 failed to establish that there are errors apparent on the face of the record. The Honourable Supreme Court in North East Karnataka Road Transport Corporation v. Sujatha 3 held as under:
"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, 3 (2019) 11 SCC 514 9 MGP,J CMA_459_2009 what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.
10. The aforementioned questions are essentially the questions of fact and therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.
11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.
12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."
16. In view of the principle laid down in the above said authority, it is clear that the above contention of the appellant/insurance company is not based on a question of law but it is purely a question of fact, which cannot be raised before this Court as per Section 30 of the Workmen's Compensation Act.
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17. Under these circumstances, this Court is of the
considered opinion that the Commissioner, after considering all the aspects, has rightly came to the conclusion in awarding compensation to the applicants. Thus, this Court is not inclined to interfere with the findings of the Commissioner and the Civil Miscellaneous Appeal is also liable to be dismissed.
18. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 17.11.2023 gms