THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.155 of 2016
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed against the order dated 06.01.2016 in E.C.No.51 of 2012 on the file of the Commissioner for Employees' Compensation and Assistant Commissioner for Labour-IV, Hyderabad (hereinafter referred to as 'Commissioner'). The said claim petition has been filed by the appellants herein seeking compensation for death of one Sri Konne Mahender (hereinafter referred to as 'deceased') in an accident that occurred on 30.05.2012 and the same was dismissed. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed at the instance of the applicants before the Commissioner.
2. The appellants herein are applicants and respondent Nos.1 and 2 herein are opposite party Nos.1 and 2 respectively 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 applicants are that the deceased was son of applicant Nos.1 and 2 and brother of applicant Nos.3 to 6. The deceased was working as driver of car bearing No.AP 29 TV 5517 under the employment of opposite party No.1. On 30.05.2012, the 2 MGP,J CMA_155_2016 villagers of the deceased engaged car from opposite party No.1 to drop them at Alair and accordingly, opposite party No.1 directed the deceased to drop them. The deceased was driving the said car and at about 01:30 AM, when they reached to Nagaram Bus Stop, the deceased hit the car to a parked lorry bearing No.AP 09 U 6095 from backside and accident occurred. According to the applicants, the said accident was caused due to the wrong parking of the lorry on the left side of the black top road in the midnight without any parking rear lights, without any guarding indications and without any persons near the lorry. In the said accident, the deceased as well as two other in- mates of the car died on the spot due to the injuries sustained by them.
4. According to the applicants, the deceased was aged about 22 years at the time of accident and he was being paid an amount of Rs.8,000/- per month towards wages along with batha at Rs.100/- per day by opposite party No.1. Opposite party No.1 did not pay any compensation for death of the deceased, in spite of several requests and he did not provide necessary documents to file the present case. The car bearing No.AP 29 TV 5517, which was involved in the accident was insured with opposite party No.2 with a policy valid from 3 MGP,J CMA_155_2016 26.11.2011 to 25.11.2012. Hence, the applicants filed the present claim petition seeking compensation of Rs.7,50,000/- along with interest at 12% per annum from the date of accident till the date of realization and Rs.2,000/- towards funeral expenses.
5. In spite of issuance of notice, opposite party No.1 remained ex parte. Opposite party No.2 filed its counter contending that there was no employee and employer relationship between the deceased and opposite party No.1. The occurrence of accident, age, wages and death of the deceased were denied. They also denied that the accident occurred during the course and out of employment of deceased with opposite party No.1. The deceased was not holding valid driving license at the time of the accident.
6. It is the further case of opposite party No.2 that applicant No.3 herein, who is brother of the deceased in his complaint to police with regard to accident, stated that the car involved in the accident was owned by him and the deceased used to drive the same, at times. The deceased along with his friends was going to Alair to shift one of his relative to hospital, who was sick and the accident occurred at that time. The deceased was not able to control the vehicle and dashed to a standing lorry resulting in the accident and death of deceased and 4 MGP,J CMA_155_2016 other in-mates of the car. The said facts are supported by the statements of applicant Nos.1 and 3, who are father and brother of the deceased, given to the police. All these circumstances prove that on the date of accident, the deceased used the car for his personal use and that there was no employee and employer relationship between him and opposite party No.1. Accordingly, prayed to dismiss the claim petition.
7. Subsequently, opposite party No.2 filed its additional counter after conclusion of the evidence of the applicants stating that the deceased was not holding permanent driving license and he was holding a learner's license only. Hence, there is no question of his employment under opposite party No.1 as driver for driving the transport vehicle. It is further stated that as per the police records and other material, the deceased was student and the vehicle was owned by applicant No.3. Therefore, the deceased does not come under the Employee's Compensation Act, 1923 and the present claim petition is not maintainable.
8. In support of their case, the applicants got examined A.W.1 and got marked Exs.A-1 to A-5. Opposite party No.1 was set ex parte. 5
MGP,J CMA_155_2016 Opposite party No.2 got examined R.Ws.1 and 2 and got marked Ex.B-1 and Ex.X-1 was also marked by the Commissioner.
9. On the basis of the above pleadings, the Commissioner framed the following issues for consideration:
"1.Whether the deceased was an employee within the meaning of the Act and died due to the injuries sustained in the accident on 30.5.2012 during the course and out of his employment as a driver on the car bearing No.AP 29 TV 5517 under the employment of O.P.1?
2. Who are liable to pay compensation to the applicants? and;
3. What is the amount of compensation entitled by the applicants?"
10. After considering the pleadings and evidence on record, the Commissioner held that the applicants have failed to prove their case and consequently, their case was dismissed.
11. Heard, both sides.
12. Learned counsel for the appellants has contended that the applicants have clearly established their case before the Commissioner. The deceased was employed as driver with opposite party No.1 and during the course and out of his employment, the deceased died in the accident. The vehicle involved in the accident was having valid insurance policy issued by opposite party No.2. 6
MGP,J CMA_155_2016 Hence, both the opposite parties are liable to pay compensation as prayed for by them. Further, though, the deceased was holding learner's license, he was competent to get driving license and as such, they are entitled for compensation.
13. Learned counsel for opposite party No.2 contended the employee and employer relationship is not established and the occupation of the deceased is shown as student, but not driver, in the police records. The applicants have also not filed any evidence to prove the employee and employer relationship. Further, the vehicle involved in the accident is transport vehicle and the deceased holding learner's license cannot drive the said vehicle. He also contended that applicant Nos.1 and 3 have clearly admitted in their complaint and statements before the police that the vehicle is owned by them and the same was used on the date of accident for personal use. Therefore, it cannot be said the deceased was paid driver of the said vehicle. In view of all these, he contended that the appeal is devoid of merits and the same is liable to be dismissed.
14. Now the point for determination is as follows:
"Whether the findings of the Commissioner dismissing the claim of the applicants suffer from any illegality?"7
MGP,J CMA_155_2016 Point:-
15. This Court has perused the pleadings and material placed on record. Admittedly, it is not disputed that on 30.05.2012, the deceased was driving vehicle bearing No.AP 29 TV 5517 and was travelling to Alair. While so, at about 01:30 AM, when they reached Nagaram Bus Stop, the vehicle hit a lorry bearing No.AP 09 U 6095, which was parked on the left side of the road without any indications. As a result, accident occurred and the deceased died on the spot. It is also not disputed that the vehicle involved in the accident was having valid insurance policy and the same was in force as on the date of the accident. It is also not disputed that the age of the deceased was 22 years at the time of the accident.
16. In the present case, the dispute is with regard to employee and employer relationship between the deceased and opposite party No.1, occupation, the ownership of the vehicle involved in the accident, validity of driving license of the deceased and monthly wages earned by him.
17. The evidence of A.W.1, who is the father of the deceased, shows that the deceased was appointed as driver of the vehicle involved in the accident by opposite party No.1. He also deposed that the 8 MGP,J CMA_155_2016 deceased discontinued his studies, as he was interested in driving. He was being paid an amount of Rs.8,000/- per month towards wages by opposite party No.1 along with Rs.100/- batha per day. While so, the villagers of the deceased engaged the vehicle of opposite party No.1 to visit Alair village and opposite party No.1 directed the deceased to drop them. Accordingly, on 30.05.2012, the deceased was going to Alair to drop the said persons and at Nagaram Bus Stop, he met with accident and died on the spot. In support of their case, the applicants got marked Exs.A-1 to A-5. Ex.A-1 is the First Information Report. Ex.A- 2 is inquest report and Ex.A-3 is final result. All the three documents support the occurrence of the accident, involvement of the vehicle and death of the deceased in the accident.
18. In support of its case, opposite party No.2 got examined R.W.1, its Administrative Officer and got marked Ex.B-1 i.e., original insurance policy. It also examined R.W.2, who is Senior Assistant, Office of the DTC, SRTA, Nalgonda. R.W.1 deposed that opposite party No.1 obtained insurance policy under Ex.B-1 bearing No.050302/31/11/02/00013138 valid for the period from 26.11.2011 to 25.11.2012 for his vehicle bearing No. AP 29 TV 5517. Except, the said document and mere contentions that the deceased was not 9 MGP,J CMA_155_2016 employed with opposite party No.1, opposite party No.2 had neither examined any witness nor adduced any documentary evidence to prove the same.
19. In the present case, opposite party No.1 remained ex parte and opposite party No.2, who is disputing the employee and employer relationship has not made any efforts to examine him, in support of its case. The right person to speak with regard to employee and employer relationship between the deceased and opposite party No.1 is opposite party No.1 himself, but he remained ex parte. When, no evidence is available on record, merely based on the averments made by opposite party No.2, it cannot be said that the deceased was not employed with opposite party No.1.
20. Coming to the contention that the deceased was student, the evidence of A.W.1 clearly shows that the deceased was student and as he was interested in driving, he discontinued his studies. Opposite party No.2, which is disputing the same has not placed any evidence on record to prove that the deceased was student and that he was not working as driver of the vehicle involved in the accident. When two views are possible, the view that is beneficial to the applicants has to 10 MGP,J CMA_155_2016 be taken, since the Employee's Compensation Act, 1923 is a beneficial legislation meant to protect the interest of employees and workers.
21. In the said circumstances, this Court is of the considered opinion that it is the duty of opposite party No.2 to disprove the case set up by applicants, but the same is not done. Hence, in the absence of any contrary evidence, this Court is inclined to come to the conclusion that the deceased was employed with opposite party No.1 as driver of the vehicle involved in the accident. Hence, the said findings of the Commissioner suffer from perversity.
22. Coming to the ownership of the vehicle, opposite party No.2 except relying upon the statements of applicant No.3 given before the police and averments of his complaint before police, has not placed any evidence on record to prove that the vehicle was owned by the applicants and the same used for personal use of the deceased on the date of the accident. Opposite party No.2, who got examined R.W.2, who is Senior Assistant, Office of the DTC, SRTA, Nalgonda, to prove that the deceased was holding learner's license has not examined any witness to prove that the vehicle was owned by applicants and not by opposite party No.1. Hence, as there is no contra evidence, except, 11 MGP,J CMA_155_2016 pleadings, this Court is of the considered opinion that the vehicle was owned by opposite party No.1 and not by applicants.
23. The next contention of the learned counsel for opposite party No.2 is that the vehicle involved in the accident is transport vehicle used for commercial use and to drive the said vehicle the driver should hold a valid driving license, but the deceased was having learner's license only. Hence, the opposite party No.2 is not liable to be pay any compensation, more particularly in view of the violation of policy conditions.
24. In support of its contention, opposite party got examined R.W.2, who is Senior Assistant, Office of DTC, SRTA, Nalgonda. His evidence shows that the deceased was holding valid learner's license. In cross- examination, he admitted that there is no technical difference in driving of both transport and non-transport vehicle. It is pertinent to state that, even for the sake of arguments if we accept the contention of the learned counsel for opposite party No.2 as true, mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. 12
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25. The High Court for the erstwhile State of Andhra Pradesh in the case of United India Insurance Company Limited v. Sri Mohd. Khaleel Khan and others 1, held as under:
"9. The provisions of Workmen's Compensation Act no where prescribe that if a driver is employed he should possess valid licence as is required in terms of the mandate of Motor Vehicles Act 1939. This view is fortified by the judgment of Hon'ble High court of Karnatka titled Oriental Insurance Co. Ltd. v. Hazira Begum and others reported in MANU/KA/0384/1994, it is profitable to reproduce the para 9 of the judgment herein:
"9. A scan of various decisions of the High court will disclose that where a workman was engaged in the employer's business and who was doing the very thing he was employed to do, then the mere fact that he was not acting strictly by the letter of law will not make the accident any the less 'arising out of and in the course of employment.' It follows, therefore, the owner and insurance company are both liable in such an event.""
26. It is pertinent to note that the claim of the applicants is filed under the provisions of the Employee's Compensation Act, 1923, which do not mandate that if a driver is employed, he should possess valid license as is required in terms of the mandate of the Motor Vehicles Act, 1939. However, in the case on hand, the deceased was having learner's license. Moreover, the policy conditions regarding driver not holding valid and effective driving license at the time of accident cannot be considered as fundamental breach that had 1 CMA No.872 of 2005 decided on 14.10.2015 13 MGP,J CMA_155_2016 contributed to the cause of the accident to discharge the appellant from the liability.
27. As per the decision of the Apex Court in the case of National Insurance Company Ltd. v. Swaran Singh 2, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the insured. In the said decision, the Apex Court considered the doctrine of "pay and recover" and examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured.
28. In view of the above, this Court is of the considered view that the applicants are entitled for compensation for death of the deceased in accident on 30.05.2012 and opposite party No.2 is liable to pay the same and after payment is entitled to recover the same from opposite party No.1.
2 (2004) 3 SCC 297 14 MGP,J CMA_155_2016
29. In order to determine the compensation, the age and wages of the deceased have to be determined. According to applicants, the deceased was paid an amount of Rs.8,000/- per month towards wages for working as driver under opposite party No.1 along with batha of Rs.100/- per day. Except, oral evidence, no documentary evidence is filed by the applicants to prove the same. Further, opposite party No.2 also did not adduce any evidence except denying the same. In the said circumstances, this Court is of the considered view that the minimum wages as per G.O.Ms.No.90 dated 28.09.2007 shall be taken for determining the compensation for death of the deceased. As per the said G.O., the minimum wages of driver is Rs.7,334/- per month. The same is considered for determining the compensation. Further, the age of the deceased was 22 years at the time of accident and the same is not disputed. The relevant factor for persons with 22 years of age is 221.37 as per the Workmen's Compensation Act, 1923. Thus the compensation works out as mentioned below:
Rs.7,334/- X 50/100 X 221.37 = Rs.8,11,764/-.
Thus, the applicants are entitled for Rs.8,11,764/-.15
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30. Insofar as rate of interest is concerned, it is apt to refer to the decision of the Hon'ble Supreme Court in P. Meenaraj v. P. Adigurusamy 3, wherein it was held as under:
"10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo (supra), this Court has not laid down the law that the interest would be payable only 30 days after the accident. In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident."
31. In view of the principle laid down in the above said citation, it is evident that the applicants are entitled for interest at 12% per annum on the compensation amount from the date of accident till date of deposit. Hence, this Court is inclined to award interest at 12% per annum on the compensation amount from the date of accident till the date of deposit.
32. Accordingly, the Civil Miscellaneous Appeal is allowed by awarding compensation of Rs. 8,11,764/- with interest at 12% per annum from the date of accident till the date of deposit. However, 3 Civil Appeal No 209 of 2022, decided on 6 January 2022 16 MGP,J CMA_155_2016 following the doctrine 'pay and recover', opposite party No.2-insurance company is directed to pay the compensation amount to the applicants/appellants herein, in the first instance and thereafter, recover the same from opposite party No.1, who is owner of the vehicle involved in the accident, without initiating any separate proceedings. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date:18.11.2023 GVR