THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.890 OF 2014
JUDGMENT:
Aggrieved by the order passed by the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-II, T.Anjaiah Karmika Sankshema Bhavanam, RTC Cross Roads, Hyderabad in W.C. No.37 of 2010 dated 31.12.2013, the opposite party No.2-Shriram 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 applicant who is working as driver on Tata Ace van bearing No. AP 9 TA 3845 under the employment of opposite party No.1 has filed the application, as he has sustained injuries in an accident that occurred on 7.6.2010 during the course and out of his employment with the opposite party No.1. On 7.6.2010 he was on duty as driver on the said Tata Ace van and that he was proceeding from Guntur to Hyderabad and on the way at about 1-30 a.m., when the van reached near the outskirts of Veliminedu village, one lorry bearing No. AP 29 T 2 MGP, J Cma_890_2014 3848 was being driven by its driver in a negligent manner while taking reverse dashed the Tata Ace van of the applicant. As a result, the applicant sustained injuries to his lumbar, ribs and internal injuries. Immediately after the accident, he was shifted to Government Hospital, Ramannapet and from there he was shifted to Gandhi Hospital, Secunderabad. The applicant stated that because of the said injuries, he suffered permanent disability, due to which, he cannot do any work and as a driver, he cannot work in future. He further stated that the Police, Chityal P.S. registered a case in Crime No.113 of 2010 under Section 337 of IPC.
The applicant stated that he was being paid Rs.6,500/- per month towards his salary apart from bata of Rs.50/- per day by the opposite party No.1 and that he was aged about 45 years as on the date of accident. He further stated that the opposite party No.1 had knowledge about the accident, as he visited the applicant at the hospital. He was residing within the jurisdiction of the learned Commissioner and that he has not filed any other application before any other Court or Tribunal claiming compensation for the same cause of action. He further stated that the said Tata Ace van was insured with opposite party No.2 covering the period from 24.6.2009 to 23.6.2010. The applicant further stated that he was having valid driving 3 MGP, J Cma_890_2014 license at the time of accident. Hence, the applicant is claiming compensation of Rs.4 lakhs against opposite party Nos.1 and 2.
4. Opposite party No.1 filed counter admitting the employment of the applicant as driver on his Tata Ace van bearing No. AP 9 TA 3845 for the last 15 days prior to the accident, manner of accident, injuries sustained by the applicant in the accident, and also admitted that he was paying Rs.6,500/- per month to the applicant as his wages. Further it is contended that as the Tata Ace van was insured with the opposite party No.2 covering the date of accident, opposite party No.2 alone is liable to pay compensation. Hence, prayed to dismiss the application against him.
5. Opposite party No.2 filed counter denying the averments of the application and also denied the age, avocation, wage and employee-employer relationship between the applicant and opposite party No.1. It is contended that the compensation claimed by the applicant is excessive and therefore, prayed to dismiss the application.
6. Opposite party No.2 filed additional counter stating that they have obtained the driving license extract for ascertaining its genuineness from the Additional Licensing Authority, RTA, 4 MGP, J Cma_890_2014 Hyderabad Central Zone, Hyderabad and found that it was renewed by the applicant for a further period of three years from 16.10.2012 to 15.10.2015 and converted from LMV (T) to MTL, which shows that the applicant has effectively renewed after the date of accident and suppressed the fact of renewal before the Commissioner, which clearly establishes that the applicant has neither disability nor sustained any loss of earning capacity and in fact carrying out his driving duties as prior to the accident. Therefore, prayed to dismiss the claim.
7. Before the Commissioner, on behalf of the applicant, AWs.1 and 2 were examined and got marked Exs.A1 to A10. On behalf of the opposite party No.1, none were examined and no documents were filed. On behalf of opposite party No.2, RWs.1 and 2 were examined and Exs.B1 and B2 were marked. Further Exs.X1 and X2 got marked through the Commissioner.
8. The learned Commissioner after evaluating the oral and documentary evidence available on record, has awarded the compensation of Rs.4,88,520/-, Rs.978/- towards stamp fee and Rs.500/- towards advocate fee against the opposite party Nos.1 and 2 jointly and severally. Aggrieved by the same, the Insurance Company has preferred the present appeal.
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Cma_890_2014
9. Heard the learned Standing Counsel for the appellant- Insurance Company and the learned counsel for the applicant and perused the record.
10. The learned Standing Counsel for the appellant-Insurance Company contended that the applicant and opposite party No.1 are the son and father, who resides under the same roof, and as such there is no employee-employer relationship between them, but the learned Commissioner has not considered the said fact and erroneously awarded compensation. Further the driving license of the applicant was renewed after the date of accident by submitting medical fitness certificate and it was proved by examining RW.2 who is Junior Assistant, RTA, Khairatabad, central zone, Hyderabad and as such, it is clearly establishes that there is violation of policy conditions. It is further contended that though the disability sustained by the applicant has assessed at 70% by the Doctor/AW.2, the loss of earning capacity has taken as 100% is on higher side. Hence prays to allow the appeal by setting aside the Order passed by the learned Commissioner.
11. Per contra, the learned counsel for the applicant argued that after considering all the aspects, the learned Commissioner has rightly awarded the compensation to the applicant and as 6 MGP, J Cma_890_2014 such, interference of this Court is not necessary. Hence prayed to dismiss the appeal.
12. In view of the rival contentions made by both the parties, this Court has perused the entire record. Applicant, who was examined as AW.1, has reiterated the application averments and categorically deposed about the manner of accident. In the cross-examination of AW.1 by the counsel for opposite party No.2, he accepted that he has not filed any proof of his wage and employment and further stated that the vehicle bearing No. AP 9 TA 3845 was registered in the name of his father Mr.Mohd. Yaseen. However, he denied that since the vehicle belongs to them, there was no employer and employee relationship between him and his father.
13. On the other hand, Sri B.A.L.N.Harikrishna, Assistant Manager of opposite party No.2 was examined as RW.1 and he reiterated the averments of their counter and additional counter. However, during cross-examination, he denied that there is any bar anywhere as son could not work with his father as an employee by taking wages.
14. Here it is pertinent to state that the opposite party No.1 has filed counter admitting the employment of the applicant as 7 MGP, J Cma_890_2014 driver on payment of wages on his Tata Ace vehicle. There is no contra evidence adduced by the opposite party No.2. Admittedly, there is no any provision under the act that it prohibits that son cannot be employed as driver and claimed to be workman under his father. In the decision of the Apex Court in Smt.T.S.Shylaja v. Oriental Insurance Company and Another 1, wherein at paragraph Nos.9 and 10 it was held as under:
"9. The Commissioner for Workmen's Compensation had, in the case at hand, appraised the evidence adduced before him and recorded a finding of fact that the deceased was indeed employed as a driver by the owner of the vehicle no matter the owner happened to be his brother. That finding could not be lightly interfered with or reversed by the High Court. The High Court overlooked the fact that the respondent-owner of the vehicle had appeared as a witness and clearly stated that the deceased was his younger brother, but was working as a paid driver under him. The Commissioner had, in this regard, observed:
"After examining the judgment of the Andhra Pradesh High Court relied upon by 2nd opponent it is seen that the owner of the vehicle being the sole witness has been unsuccessful in establishing his case but in this proceeding the owner of the vehicle has appeared before this Court even though he is a relative of the deceased, and has submitted in his objections, even evidence that even though the deceased was his younger brother he was working as a driver under him, and has admitted that he was paying salary to him. The applicant in support of his case has submitted Hon'ble High Court judgment reported in ILR 2006 KAR 518. The Divisional Manager, United India Insurance Company Ltd. Vs. Yellappa Bheemappa Alagudi & Ors. which I have examined in depth which holds that there is no law that relatives cannot be in employer employee relationship. Therefore it is no possible to ignore the oral and documentary evidence in favour of the applicant and such evidence has to be 1 AIR 2014 Supreme Court 893 8 MGP, J Cma_890_2014 weighed in favour of the applicant. For these reasons I hold that the deceased was working as driver under first opponent and driving Toyota Quails No.KA-02-C-423, that he died in accident on 03.09.2005, that he is a 'workman' as defined in the Workmen's Compensation Act and it is held that he has caused accident in the course of employment in a negligent fashion which has resulted in his death".
10. The only reason which the High Court has given to upset the above finding of the Commissioner is that the Commissioner could not blindly accept the oral evidence without analysing the documentary evidence on record. We fail to appreciate as to what was the documentary evidence which the High Court had failed to appreciate and what was the contradiction, if any, between such documents and the version given by the witnesses examined before the Commissioner. The High Court could not have, without adverting to the documents vaguely referred to by it have upset the finding of fact which the Commissioner was entitled to record. Suffice it to say that apart from appreciation of evidence adduced before the Commissioner the High Court has neither referred to nor determined any question of law much less a substantial question of law existence whereof was a condition precedent for the maintainability of any appeal under Section 30. Inasmuch as the High court remained oblivious of the basic requirement of law for the maintainability of an appeal before it and inasmuch as it treated the appeal to be one on facts it committed an error which needs to be corrected."
15. A plain reading of principle laid down in the above said citation clearly indicates that merely the deceased being employed as workman/driver under the employment of opposite party No. 1, owner/employer, who is happened to be the son of the opposite party No.1/owner, the Insurance Company was not bound to make contention that there is no employee-employer relationship between the deceased and opposite party No. 1. The said contention of the opposite party No.2/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 9 MGP, J Cma_890_2014 of the Workmen's Compensation Act. Hence, the above said contention of the learned Standing Counsel for the opposite party No.2/Insurance Company is unsustainable.
16. It is further contended by the learned Standing Counsel for the appellant-Insurance Company that the applicant renewed his driving license after the date of accident by submitting medical fitness certificate and as such, he has not sustained any disability. In support of their contention, Junior Assistant, RTA, Khairatabad, central zone, Hyderabad was examined as RW.2. He stated that the applicant obtained a driving license vide DL No. 242051989 on 26.5.1989 and he was authorized to drive auto rickshaw transport and MTL and it was valid from 20.6.2009 to 19.6.2012 and later it was renewed from 16.10.2012 to 15.10.2015. He further stated that at the time of renewal of license, the license holder has to fill up the renewal application form while enclosing medical fitness certificate issued by doctor and payment of requisite fee and also submit original driving license to the office and thereafter photo capture in the office and thereafter renewal of driving license is issued. He filed Ex.X1 authorisation letter and Ex.X2 driving license extract. However, in the cross-examination by the learned counsel for the applicant, he said that he has not 10 MGP, J Cma_890_2014 brought any record pertaining to renewal application form, fitness certificate and old driving license. He added that the said records are available in the office and that he will produce the records. In his further cross-examination, RW.2 said that since no records are traced in his office pertaining to the driver Mr.Md.Raheem like renewal application form and fitness certificate. He added that the records are not put in order as such the records are not traced.
17 According to the applicant, he sustained traumatic paraperisis with D12 and L1 wedge compression, spent huge amount towards his treatment and because of which, he became permanently disabled as his lower limbs were completely paralyzed due to the paraplegia, as such he cannot work as driver any more. Further AW.2 Dr.V.Prashanth deposed that on 29.12.2010 the patient by name Md.Raheem was brought to his hospital at Deverakonda with injuries of paralysis of both lower limbs. He verified the medical records and found that the applicant sustained traumatic paraparesis with D12 and L1 wedge compression i.e., fracture in RTA on 7.6.2010. On his clinical and radiological examination, he found that the applicant is suffering post traumatic (paraplearia) and due to which the applicant sustained the 11 MGP, J Cma_890_2014 disability to the extent of 70%, which was permanent and estimated his loss of earning capacity at 100% and issued Ex.A5 disability certificate. Further the opposite party No.2 failed to adduce any evidence to show that the applicant was continuing to work under the opposite party No.1 or elsewhere as a driver on a heavy vehicle. Therefore, this Court is of the considered opinion that the learned Commissioner after considering the avocation of the applicant as a driver and the disability sustained by him at 70%, has rightly taken the loss of earning capacity of the applicant as a driver at 100%.
18. Coming to the quantum of compensation, according to the applicant, he was getting Rs.6,500/- per month as driver under the opposite party No.1. As there is no document is filed to prove his income, the learned Commissioner has rightly taken the wages of the applicant according to the minimum wages as per the G.O.Ms.No.83, L.E.T & F (Lab.II) Department dated 4.12.2006, at Rs.4,805.25 per month and by applying the relevant factor of '169.44' for the age group of 45 years and awarded compensation of Rs.4,88,520/-. Further the learned Commissioner also awarded an amount of Rs.978/- towards stamp fee and Rs.500/- towards Advocate fee. Thus in all, the 12 MGP, J Cma_890_2014 learned Commissioner has awarded Rs.4,89,998/- to the applicant, which is just and reasonable.
19. In view of the above facts and circumstances, this Court is of the considered opinion that the learned Commissioner after considering all the above said aspects has rightly awarded the compensation in favour of the applicant and thus, the learned Commissioner has not committed any irregularity or illegality while passing the impugned order. Hence, this Court does not see any reason to interfere with the impugned order passed by the learned Commissioner. Thus, the Civil Miscellaneous Appeal is devoid of merits and 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 06.10.2023.
PGP