Telangana High Court
United India Insurance Co Ltd vs Afroz Khan And 4 Others on 3 April, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.348 of 2013
JUDGMENT:
Aggrieved by the order dated 08.02.2013 passed by the learned Commissioner for Employees' Compensation-cum- Assistant Commissioner of Labour IV, Hyderabad (hereinafter be referred as 'the Commissioner'), in W.C.No.103 of 2011, the opposite party No.2/Insurance Company has filed the present Civil Miscellaneous Appeal.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the learned Commissioner.
3. The brief facts of the case are that the applicants, who are wife and children of the Sri Zaheer Ahmed (hereinafter be referred as the deceased) filed claim petition under the provisions of Employees Compensation Act, 1923, seeking compensation of Rs.8,00,000/- along with interest for the death of the deceased, who died in an accident that occurred on 01.04.2011 during the course and out of his employment with opposite party No.1. As stated by the applicants, on 01.04.2011, when the deceased was on duty as a driver on lorry bearing No.AP-23V 1458 and as per instructions of opposite party No.1, MGP,J 2 CMA_348_2013 while he was proceeding on the said lorry to Bollaram Coco Cola Company with loads of empty coca-cola bottles and on the way when he reached Bachupally, another lorry bearing No. MP- 20HB 1307 came at high speed and in a rash and negligent manner, dashed the lorry of the deceased. As a result, the deceased sustained grievous injuries and that he was shifted through ambulance to Gandhi Hospital, wherein the deceased while undergoing treatment succumbed to the injuries. Based on a complaint, Police officials of Dundigal Police Station registered a case in crime No. 165 of 2011 for the offence under Section 304-A of Indian Penal Code and submitted the charge sheet. The applicants further stated that the deceased was aged about 40 years and was being paid wages of Rs.6,000/- per month by opposite party No.1. It is further stated by the applicants that opposite party No.1 has insured his lorry bearing No. AP-23V 1458 with opposite party No.2 and the said policy was subsisting as on the date of accident. Therefore, the applicants claimed compensation of Rs.8,00,000/- along with interest from opposite party Nos.1 & 2 jointly and severally.
4. In spite of notice the Opposite party No.1, did not choose to appear before the learned Commissioner and contest the matter, therefore, the opposite party No.1 was sex ex-parte.
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5. Opposite party No.2 filed counter and denied the averments of the claim petition including, age, wages, manner of accident, employment, injuries sustained by the applicant, denied the issuance of an insurance policy in respect of the alleged lorry and also denied that the applicant was having valid and effective driving license to drive the lorry and denied that the alleged lorry was having a valid permit and fitness as on the date of accident. On these grounds insurance company contended that they are not liable to pay any compensation and prayed to dismiss the same.
6. Based on the above pleadings, the learned Commissioner, after framing issues, had conducted trial. The applicant No.1 was examined as AW1, wherein she reiterated the averments made in the claim application and stated that all of the applicants are totally dependent on the earnings of her deceased husband and hence, filed claim application seeking compensation of Rs.8,00,000/- along with interest and got marked Exs.A1 to A9 on her behalf. On behalf of opposite party No.1, none were examined and no documents were marked. On behalf of opposite party No.2, RW1, who has been working as Senior Assistant in Regional Transport Authority, Nizamabad was examined and Exs. B1 to B5 were marked on its behalf.
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7. After considering the evidence and documents available on record, the learned Commissioner had awarded an total amount of Rs.6,26,201/- along with interest @ 12% per annum. Aggrieved by the same, the present appeal is filed by opposite party No.2/Insurance Company to set aside the impugned order.
8. Heard the submission of the learned Standing Counsel for Insurance Company and the learned counsel for respondents and perused the record.
9. Now the point for consideration is whether there are any grounds to set aside the order passed by the learned Commissioner?
10. Point: The main contention of the learned Standing Counsel for the Insurance Company is that though the age of the deceased employee is 59 years as per his own driving license, the learned Commissioner considered the age of the deceased employee as 40 years by relying upon PME report. Per contra, the learned counsel for the respondents/applicants contended that the learned Commissioner has rightly considered all the aspects in a proper perspective and there is no need to interfere with the findings of the learned MGP,J 5 CMA_348_2013 Commissioner. This Court has perused the evidence and documents filed by both sides. The applicant No.1, wife of the deceased was examined as AW-1, who has reiterated the contents of the claim application and deposed about the manner of the accident. She also relied upon the documents under Ex. A-1 to A-9. A perusal of A-1 First Information Report shows that Police Dundigal Police Station registered a case in crime No.165 of 2011 for the offence under Section 304-A IPC, took up the investigation and laid Ex. A-2 Charge Sheet. Ex. A-3 certified copy of crime details form and Ex.A-4 certified copy of inquest report shows that the deceased was working under the employment of opposite party No.1. Further, Ex.A-5 post- mortem examination report shows that deceased died due to injuries sustained in the accident. Ex. A-6 Motor Vehicle Inspector Report shows that accident has not occurred due to mechanical defects. Ex. A-7 and Ex. B-2 copies of insurance policy filed by both sides shows that there is valid policy subsisting as on the date of accident. Ex. A-8 and Ex. A-9 are Registration Certificate and permit of lorry, clearly establish that opposite party No.1 is the owner of the lorry. Therefore, there is no dispute regarding the manner of the accident, death of the deceased in the said accident and that the deceased was working under opposite party No.1. The learned Commissioner MGP,J 6 CMA_348_2013 came to the conclusion that the applicants have categorically established the employer-employee relationship.
11. The only dispute is regarding the age of the deceased. As per the applicant the deceased was aged 40 years, but no age proof is filed. As per the driving license extract, the age of the deceased was 58 years. However, the learned Commissioner has taken the age of the deceased as 40 years based on Ex.A-5 Postmortem report. It is pertinent to state that when the driving license extract was filed by the applicants and the same was not denied by the applicants, then the age mentioned in the driving license extract ought to have been considered by the learned Commissioner. The learned counsel for the applicants vehemently argued that the age mentioned in the driving license is not correct and the age of the deceased has to be considered as per the post-mortem examination report. He also stated that as per the school records, the age of the deceased was only 40 years but the same was not filed before the learned Commissioner. It is also significant to note that the applicants have not filed the driving license of the deceased and it appears that in order to suppress the age of the deceased, they have purposefully not filed the driving license of the deceased. On the other hand, the insurance company has produced the MGP,J 7 CMA_348_2013 driving license of the deceased. Furthermore, the applicants have not raised any objection at the time of marking of the driving license. When the driving license of the deceased is available, then the Court has to consider the said document by not relying upon the post-mortem examination report.
12. It is pertinent to note that the driving license of the deceased shows the date of birth of the deceased as 10.06.1952, i.e., the deceased was 59 years old at the time of his death. It is also pertinent to state that the date of birth for obtaining driving license will be incorporated based on the particulars given by the holder of the driving license himself, especially date of birth certificate. Apparently, it was on the information of the deceased, his date of birth was recorded in the driving license. Without considering the same, the learned Commissioner erred in holding the age of the deceased to be 40 years on the basis of the post-mortem examination report. Hence, this Court is inclined to interfere with the findings of the learned Commissioner to extent of age of the deceased. The learned counsel for the opposite party No.2 relied upon a decision of the High Court of Allahabad, Lucknow Bench in New India Assurance Company Limited v. Washeema Bano and others 1 1 2023 ACJ 2279 MGP,J 8 CMA_348_2013 wherein it was observed that the date of birth of a licensee on the driving license is recorded on the particulars given by the holder of the driving license himself and in such circumstances the learned Commissioner committed no illegality in holding the age of the deceased on the basis of his driving license.
13. Therefore, this Court is of the considered view that it is a fit case to consider the age of the deceased as 59 years while calculating the compensation. As per schedule IV of the Act, the appropriate factor for the age of 59 years is '121.05'. Hence, the applicants are entitled for the following compensation:
Rs.6,075.25 paise x 50/100 x 121.05 = Rs.3,67,220.30 (rounded off to Rs.3,67,220/-)
14. The learned counsel for the opposite party No.2 further contended that the learned Commissioner erred in awarding interest @ 7.5% per annum from the date of application i.e., 18.07.2007, till the date of orders i.e., 08.02.2013 an amount of Rs.65,880/- interest on Rs.5,58,703/- in total awarding an amount of Rs.6,26,201/- and in directing the respondents before the Commissioner to deposit within 30 days from the date of receipt of the orders, failing which, the applicants shall be entitled for further interest @ 12% per annum on the amount of the compensation, from the date of expiry of the period of one MGP,J 9 CMA_348_2013 month from the date of orders, and the orders of the Commissioner are perverse and liable to be set aside by the Court in the interest of justice. As per the decision of the Honourable Supreme Court in P. Meenaraj vs P. Adigurusamy 2, the claimants are entitled for interest @ 12% per annum on the compensation amount from the date of accident. In Shobha and others v. The Chairman, Viothalrao Shinde Sahakari Sakhar Karkhana Limited and others 3, the Honourable Supreme Court held as under:
"4.1 Thus, from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due. As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner."
2 Civil Appeal No 209 of 2022, decided on 6 January 2022 3 2022 (3) ABR1 MGP,J 10 CMA_348_2013
15. In view of the principle laid down in the above said decisions, the learned Commissioner ought to have awarded interest on the compensation amount from the date of accident rather than from the date of application. Though the respondents did not challenge the impugned order by filing any appeal with regard to the awarding interest part, yet the question being a pure question of law, this Court with a view to do substantial justice to the respondents, more particularly, the Act being a beneficial legislation, this Court considers it just and proper to modify the order of the Commissioner so as to make the same in conformity with law laid down by the Honourable Apex Court in the above referred two decisions (supra) to the extent of awarding interest @ 12% per annum from the date of accident.
16. In view of the above discussion, since the learned Commissioner incorrectly assessed the age of the deceased as '40' instead of '59' and also failed to award interest from the date of accident, this Court is inclined to interfere with the findings of the learned Commissioner to the extent of reducing the compensation as calculated supra and awarding interest @ 12% per annum on the compensation amount from the date of the accident.
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17. Accordingly, the Civil Miscellaneous Appeal is allowed in part. The order dated 08.02.2013 passed by the learned Commissioner for Employees' Compensation-cum-Assistant Commissioner of Labour IV, Hyderabad in W.C.No.103 of 2011 is modified to the extent of reducing the compensation from Rs.5,58,703/- to Rs.3,67,220/- which shall carry interest at 12% per annum from the date of accident till the date of its deposit. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Date: 03.04.2024 AS