Telangana High Court
Hdfc Ergo Genaral Insurance Company ... vs Mamidi Sandhya And 4 Others on 22 November, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.939 OF 2019
JUDGMENT:
Aggrieved by the order passed by the Commissioner for Employees' Compensation and Deputy Commissioner of Labour-I, T.Anjaiah Karmika Samkshema Bhavanam, RTC Cross Roads, Hyderabad in E.C. No.26 of 2016 dated 17.07.2019, the opposite party No.2-HDFC ERGO General Insurance Company Limited has filed the present 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 as under:
The applicants who are the wife, daughter and parents of the deceased-Mamidi Nageswara Rao (hereinafter will be referred as 'deceased') filed an application claiming compensation of Rs.20 lakhs on account of the death of the deceased who died in the accident that occurred on 6.8.2015. According to the applicants, the deceased workman was working as driver on tractor and trailer bearing Nos. AP 20 TC 5282 and AP 20 TC 5281. While so, on 6.8.2015 at about 12-30 hours the deceased was on duty as a driver on the tractor and trailer and proceeded in order to 2 MGP,J CMA_939_2019 transport soil from Kothur Buchaiah fields to Kamesh fields and when he reached Chigurupati Venkateswarlu sugar cane fields, all of a sudden, buffalos herd came across the road, then the deceased in order to avoid accident applied sudden brakes and lost control over the steering, as a result, the deceased fell on the road and the left middle tyre of the tractor ran over the deceased, due to which, his body was crushed. Immediately he was shifted to hospital and while undergoing treatment, the deceased died on the same day night at about 22-00 hours. Thus, the deceased died during the course and out of his employment as a driver on the said tractor and trailer under the opposite party No.1. The Police, Nelakondapally P.S. had registered a case in crime No.127 of 2015 under Section 304-A of IPC. According to the applicants, the deceased was being paid Rs.8,000/- per month towards his wages apart from batha of Rs.150/- per day by the opposite party No.1.
Due to the sudden demise of the deceased, the applicants lost their source of income. Hence the claim.
4. Opposite party No.1 filed counter admitting the ownership of the tractor and trailer bearing No. AP 20 TC 5282 and 5281 and contended that the said tractor was insured with the opposite party No.2 and the policy was valid from 16.10.2014 to 15.10.2015 and also admitted the employment of the deceased and his wages. 3
MGP,J CMA_939_2019 However, he denied his liability and prayed to dismiss the claim against him.
5. Opposite party No.2 filed counter denying the averments of the application, manner of the accident, age, avocation, wages and the relationship of employee-employer and further contended that the deceased was not having valid driving license and therefore, prayed to dismiss the application.
6. Based on the above pleadings, the learned Commissioner has framed the following issues:
1. Whether the deceased was a workman within the meaning of the Act and died due to the injuries sustained in the accident that occurred on 6.8.2015 during the course and out of his employment as a driver under the employment of the 1st opposite party on the tractor and trailer bearing No. AP 20 TS 5282 and AP 20 TC 5281?
2. If yes, who are liable to pay compensation to the dependants of the deceased?
3. What is the amount of compensation entitled by the dependants of the deceased?
7. Before the Commissioner, the applicant No.1 was examined as AW.1 apart from examining AW.2 and got marked Exs.A1 to A12. On behalf of the opposite party No.1, RW.1 was examined 4 MGP,J CMA_939_2019 and Exs.B2 to B6 were marked. On behalf of opposite party No.2, RW.2 was examined and Exs.B1 and B7 were marked.
8. The learned Commissioner after evaluating the oral and documentary evidence available on record, has awarded the compensation of Rs.7,10,532/-. Aggrieved by the same, the Insurance Company has preferred the present appeal.
9. Heard Sri M.Satish Reddy, learned Standing Counsel for the appellant-Insurance Company and Sri Repakula Nageswara Rao, learned counsel for the applicants and perused the record.
10. The main contention of the learned Standing Counsel for the appellant-Insurance Company is that though there is no employee- employer relationship between the opposite party No.1 and the deceased, and even as per the F.I.R., at the time of accident the deceased was not driving the vehicle, in fact, he was sitting on the mud guard of the tractor and another person by name Pagidikanthula Prasad was driving the vehicle. Hence prayed to allow the appeal by setting aside the Order passed by the learned Commissioner.
11. Per contra, the learned counsel for the applicants argued that after considering all the aspects, the learned Commissioner has rightly awarded the compensation to the applicants and as 5 MGP,J CMA_939_2019 such, interference of this Court is unwarranted. Hence prayed to dismiss the appeal.
12. Now the point for consideration is whether the order passed by the learned Commissioner is sustainable under law?
13. This Court has perused the entire evidence and the documents filed by both the parties. AW.1 who is the wife of the deceased has reiterated the averments of the application. The complainant is the father of the deceased. However, based on the information he has given report to the police. Admittedly, he is not an eyewitness to the accident and as such the applicants got examined AW.2. AW.2 in his evidence categorically narrated the manner of accident and further stated in his cross-examination that his name is reflected in the final report. He denied the suggestion that he is not an eyewitness to the accident and that the deceased was not driving the vehicle at the time of incident and also denied that he is deposing false in order to help the applicants.
14. The opposite party No.1 was examined as RW.1 and he has reiterated the averments of his counter. In the cross-examination he stated that the deceased was tractor driver and he was working for him and the deceased was being paid Rs.8,000/- per month 6 MGP,J CMA_939_2019 towards wages and Rs.150/- per day as batha and at the time of accident, the deceased was driving the tractor. He denied the suggestion that the deceased is not working as driver nor paid any amount and Insurance Company is not liable to pay the compensation. He further denied the suggestion that at the time of accident the deceased was not driving the tractor and one Prasad was driving the tractor and the deceased was sitting on the mud guard at the time of accident and that the driver was not having valid driving license and the deceased was travelling as a passenger. RW.1 has filed Ex.B2 certified copy of 161 Cr.P.C. statement recorded by the Police, Nelakondapally P.S., Ex.B3 copy of registration certificate, Ex.B4 original insurance policy, Ex.B5 xerox copy of permit and Ex.B6 xerox copy of fitness certificate of the tractor.
15. On behalf of the opposite party No.2, RW.2 was examined and he stated that the complaint given by the applicant No.1, who is father of the deceased alleging that one Pagidikathula Prasad was driving the tractor and trailer and the deceased was sitting on the left side mud guard and therefore, opposite party No.2 is not liable to pay compensation. Ex.B1 xerox copy of F.I.R. and Ex.B7 true copy of insurance policy issued in respect of tractor and trailer of opposite party No.1. He accepted that the policy was in force as 7 MGP,J CMA_939_2019 on the date of accident and they have appointed an Investigator to ascertain the truth of the accident. However, admitted that he has not filed the investigator's report. He denied the suggestion that the deceased was driving the vehicle and that the deceased was having valid driving license at the time of accident and there was employee and employer relationship between the opposite party No.1 and the deceased and that the deceased died during the course of employment.
16. It is pertinent to state that the report given by the father of the deceased is only based on the information given by the persons who stated about the accident. A perusal of the report also discloses that the complainant i.e. father of the deceased is an illiterate, as such, he has affixed his thumb impression and there is no evidence to show that the persons who have given report are aware about the name of the driver of the tractor. Even assuming for a moment, if Pagidikathula Prasad is driving the vehicle, definitely he would have also sustained injuries in the accident. As per the record, there is no such evidence to show that Pagidikathula Prasad has sustained injuries. Further the final report also discloses based on the evidence of five witnesses i.e., LWs.4 to 7 that Pagidikathula Prasad is not present at the scene of offence and he is busy with his work at LW.13 paddy field and 8 MGP,J CMA_939_2019 cultivating by another tractor by LW.1. Therefore, it is clear that Pagidikathula Prasad is not driving the tractor at the time of accident. Under these circumstances, this Court is of the considered opinion that at the time of accident, the deceased was driving the vehicle and in the accident the deceased sustained injuries and succumbed to the same. Therefore, the contention of the learned Standing Counsel for the Insurance Company that at the time of accident, the deceased was not driving the vehicle and sitting on the mud guard and Pagidikathula Prasad is driving the vehicle is unsustainable.
17. Whether there is employer-employee relationship between the applicant and opposite party No.1 is a question of fact and not a question of law. The Honourable Supreme Court in North East Karnataka Road Transport Corporation v. Sujatha 1 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, 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 1 (2019) 11 SCC 514 9 MGP,J CMA_939_2019 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."
18. 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. 10
MGP,J CMA_939_2019
19. Now coming to the compensation, according to the applicants, the deceased was aged 32 years and the deceased was getting salary of Rs.8,000/- per month. However, as the applicants failed to produce any valid evidence, the learned Commissioner has taken the income of the deceased according to the minimum wages fixed by the erstwhile Government of Andhra Pradesh vide G.O.Ms.No.83, L.E.T & F (Lab.II) Department, dated 26.11.2006, at Rs.6,936.75 per month and by applying the relevant factor of '203.85', awarded compensation of Rs.7,07,028/-. The learned Commissioner further awarded Rs.1,504/- towards stamp fee and Rs.2,000/- towards Advocate fee. Thus in all the compensation awarded to the applicants is Rs.7,10,532/-, which is just and reasonable. Therefore, this Court does not find any ground to interfere with the findings of the learned Commissioner. Hence, there are no merits in this Civil Miscellaneous Appeal and it is liable to be dismissed.
20. 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 22.11.2023 PGP