Telangana High Court
Cholamandalam Ms Gen Is Co Ltd., ... vs Nekkanti Sujatha, Hyd And Anr on 10 April, 2024
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.20 of 2017
JUDGMENT:
1. Aggrieved by the order dated 20.10.2016 passed in E.C.No.59 of 2016, on the file of the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-IV, Hyderabad (hereinafter be referred as 'the Commissioner'), the opposite party No.2/Insurance Company filed the present Civil Miscellaneous Appeal.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Commissioner.
3. The brief facts of the case are that the applicant, who is the wife of the deceased-Nekkanti Sai Prasad @ Saibaba, filed a petition under the provisions of the Employees' compensation Act, 1923 seeking compensation of Rs.8,00,000/- along with interest @ 12% per annum from the opposite parties on account of the death of the deceased in an accident that occurred on 31.12.2015. It is stated by the applicant that the deceased used to work as Driver under the employment of Opposite party No.1 on her Lorry bearing 2 MGP,J CMA.No.20 of 2017 No.AP 16TY 8316 and on 31.12.2015, when the deceased along with cleaner by name Mr.Ramesh were on duty as driver and cleaner on the said lorry and loaded cement at KCP cement, Jaggaiahpet and went to Kothavalasa Village of Vizianagaram district for unloading the same and proceeded to Visakhapatnam for loading gypsum in the lorry and went to Chittapur of Karnataka State for unloading the same and proceeded to Tandur and loaded Naapa stones and further proceeded to Bandar (Machilipatnam) of Krishna District. On the way to Bandar, when they reached near Eedulaguda Village of Miryalaguda Mandal, Nalgonda District, the Cleaner of the lorry had cut the throat of the deceased and had stolen his "Saibaba" Gold ring and some cash from the deceased and fled away from the spot. Based on a complaint, Police of Miryalaguda I Town Police Station, Nalgonda District registered a case in Crime No.4 of 2016 under Sections 302 and 379 IPC. The applicant contended that as the death of the deceased arose during the course and out of his employment with opposite party No.1 on her lorry bearing No.AP-16TY-8316, she is entitled for compensation and hence filed a claim petition seeking compensation of Rs.8,00,000/- 3
MGP,J CMA.No.20 of 2017 along with interest @ 12% per annum from the date of accident till date of realization against opposite parties 1 & 2. The applicant stated that the deceased was being paid wages of Rs.12,000/- per month and Batha of Rs.200/- per day by opposite party No.1 and that he was aged about 58 years as on the date of accident. She also contended that the said lorry was insured with opposite party No.2 and the insurance policy was valid from 12.02.2015 to 12.02.2016 covering the date of accident and risk of the deceased. Therefore, the Insurance Company is also liable to pay compensation.
4. Opposite party No.1, who is the registered owner of the crime lorry bearing No.AP-16TY-8316, filed her counter admitting all the averments made in the claim petition and stated that she used to pay wages of Rs.10,000/- per month to the deceased and had insured the crime lorry with the 2nd opposite party and had paid necessary premium to cover the risk of the driver and the said Insurance policy covers the date of accident, hence, opposite party No.2 alone is liable to pay compensation to the deceased and requested to dismiss the claim against her.
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5. Opposite party No.2/Insurance company filed its counter denying the averments made in the claim application including, employment, wage, batha paid to the age, age, occurrence of the accident, employer-employee relationship, deceased holding a valid and effective driving license at the time of accident and further contended that as the complaint was given by the son-in-law of the deceased and as the lorry was purchased by the deceased three years ago and he, being the owner of the said lorry and not a workman, is not entitled for any compensation and that the amount of compensation with interest and costs claimed by the applicants is excess and exorbitant and hence, prayed to dismiss the claim against it.
6. In support of her case, the applicant No.1 was examined as AW1. She filed an affidavit in lieu of her chief examination wherein, she reiterated the contents made in the claim application. During her cross-examination by 2nd opposite party/Insurance company, she accepted that the deceased is the father of the 1st opposite party and she is the mother of 1st opposite party and the deceased used to work as driver on the lorry of his daughter on payment of monthly wages. She 5 MGP,J CMA.No.20 of 2017 denied the suggestion that the deceased is the owner of crime vehicle and not a driver on the said vehicle. She also denied that she filed another W.C.No.21 of 2016. She accepted that as per complaint, inquest and charge sheet, it is mentioned that the deceased purchased the lorry in question three years ago and was driving the said vehicle.
7. Opposite party No.1 was examined as RW1. She filed an affidavit in lieu of her chief examination wherein she reiterated the same averments as that of counter filed by her. She got marked copy of Registration Certificate and Insurance Policy as Exs.B1 and B2 respectively. During her cross- examination by opposite party No.2, she denied the suggestion that since the deceased was her father, there was no employee-employer relationship between them and also denied the suggestion that she never paid any wages to the deceased. She also denied that the deceased is the owner of the said lorry. She accepted that the deceased was murdered by the cleaner of the said lorry and that a complaint regarding the alleged accident was given to police by her husband. She denied the suggestion that she has not paid additional premium to cover the risk of the driver. She denied the 6 MGP,J CMA.No.20 of 2017 suggestion that the death of the deceased is no way connected with the said lorry.
8. On behalf of opposite party No.2, RW2, who is working as Assistant Manager in their office, was examined. He stated that as per FIR, inquest and charge sheet, the deceased purchased the lorry about three years back and driving the said lorry and was murdered by the cleaner. He further stated that as opposite party No.1 is the daughter of the deceased, as such, there is no employee-employer relationship between them and hence, opposite party No.2 is not liable to pay any compensation. During cross- examination, RW2 accepted that the Insurance policy was in force as on the date of accident. He also accepted that as per Registration Certificate, the 1st opposite party is the owner of the said lorry on the date of accident.
9. The learned Commissioner, after considering the entire evidence and documents marked on both sides, awarded compensation of Rs.4,95,347/- together with interest at 12% per annum which is payable by both the opposite parties from 02.08.2016 till the date of realization. 7
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10. Aggrieved by the same, the present Appeal is filed by opposite party No.2-Insurance Company.
11. Heard both sides.
12. The contentions of the learned counsel for the appellant-Insurance Company are that the deceased was not a workman and was owner of the said lorry and had not died during the course of employment, but was murdered by cleaner of lorry. Also, opposite party No.1 is the daughter of the deceased, as such, there is no employee-employer relationship exists between them. Even in the complaint given by son-in-law of the deceased, it was stated that the deceased is the owner of the said crime vehicle and hence, in view of the said submission, prayed to allow the appeal by setting aside the order of the learned Commissioner. In support of his contentions, learned counsel for the appellant-Insurance Company relied upon the judgment of the Hon'ble Supreme Court in the case between Gottumukkala Appala Narasimha Raju and others Vs. National Insurance Company Limited 1 1 2007(6) ALD 36 (SC) 8 MGP,J CMA.No.20 of 2017 wherein, it is held that as no documentary proof was produced to establish the contract of employment, the claim petition would not be maintainable.
13. Per contra, learned counsel for the respondent/applicant contended that the Commissioner, after taking into consideration the entire evidence and documents marked on both sides, awarded reasonable compensation for which interference of this Court is unwarranted.
14. Now the points that emerge for determination are:
1. Whether the applicant is entitled for compensation?
2. Whether the opposite party Nos.1 & 2 are liable to pay compensation?
POINTS:-
15. This Court has perused the entire evidence and documents available on record. The applicant herself got examined as AW1. She reiterated the contents of the claim application and got marked Exs.A1 to A10 on her behalf. Ex.A1 is the FIR along with complaint. Ex.A2 is the charge sheet. Ex.A3 is the inquest report. Ex.A4 is the post mortem examination report. Ex.A5 is the Registration certificate of the lorry. Ex.A6 is the Insurance policy of the lorry. Ex.A7 is 9 MGP,J CMA.No.20 of 2017 the driving license of the deceased. Ex.A8 is the permit of the lorry. Ex.A9 is the fitness certificate and Ex.A10 is the Aadhar card of the applicant.
16. On behalf of respondents, RWs 1 & 2, who are the owner and insurer of the subject lorry were examined and Exs.B1 to B3 were marked.
17. It is pertinent to note that there is no dispute about the occurrence of accident and death of the deceased. The first and foremost contention raised by the learned counsel for the appellant/Insurance company is that there is no employee- employer relationship between the deceased and opposite party No.1 as they are father and daughter respectively and that the deceased is not a workman, but he is the owner of the vehicle.
18. A perusal of Registration Certificate, Insurance policy and permit of the lorry which are filed under Exs.A5, A6 and A8 shows that opposite party No.1 is the registered owner of the lorry. Further, RW2, who is working as Assistant Manager in Insurance Company also admitted during his cross-examination that as per Ex.A5-Registration Certificate, 10 MGP,J CMA.No.20 of 2017 the opposite party No.1 is the owner of the said lorry as on the date of accident. He also admitted that except relying on the police records, they had not filed any document to show that the deceased was the registered owner of the said lorry. Further, opposite party No.1 examined herself as RW1 and deposed that the deceased used to work as driver on her lorry on payment of monthly wages by her. Though RW1 was cross-examined by opposite party No.2/Insurance company, nothing adverse was elicited to disbelieve her evidence. Further, no law prohibits employing a father as a driver on the vehicle owned by the daughter. In support of the same, it is apt to refer to the recent decision of the Karnataka High Court in the case between Divisional Manager Vs.Smt.Sayeeda Khanam in MFA.No.25711/2011(WC), wherein, it is held that there is no prohibition under the Employees Compensation Act for blood relatives to be employer and employee.
19. In light of the above principle and considering the documents marked under Exs.A5, A6 & A8 and evidence adduced by RW2, it is held that the deceased was an employee working under opposite party No.1, who is the 11 MGP,J CMA.No.20 of 2017 registered owner of the subject lorry, on payment of monthly wages and hence, there exists employee-employer relationship between them.
20. The other contention raised by the learned counsel for the appellant is that the deceased had not died during the course of his employment but was murdered by the cleaner of the lorry and that the murder does not cover under the insurance policy, as such, opposite party No.2 is not liable to indemnify opposite party No.1.
21. In this regard, it is pertinent to mention that the deceased was on duty as a driver on the lorry bearing No.AP- 16TY-8316 from 31.12.2015 to 07.01.2016 and on 07.01.2016, the deceased had stopped the lorry in the night houses for a bonafide reason to take rest and accordingly, slept in the cabin of the lorry. At that time, the Cleaner of the said lorry got cut the throat of the deceased and committed theft of gold ring, mobile phone and some money from the deceased and fled away from the spot. A perusal of post- mortem examination report also shows that the death of the deceased was due to 'cut throat injury' which occurred 12 MGP,J CMA.No.20 of 2017 unexpectedly and without the knowledge of the deceased during the course of his employment as a driver. It is pertinent to state that there is no dispute regarding the employment of the deceased as Driver under opposite party No.1. The death was occurred while he was on duty as on the date of accident. If the deceased is aware of the plan hatched by the cleaner, he would have taken some measures to avoid his death. In the case of an accidental death, the deceased had no control on the incident wherein he was killed. Had he got prior knowledge or presumption of his death on that day, he might have not attended the duty. As the death being during the course of his employment, the Insurance Company is bound to pay compensation. Moreover, if the deceased knows that he would be murdered by the cleaner of the said lorry, he would not have asked him to accompany in the lorry. Therefore, it is clear that the death of the deceased is unexpected and without his knowledge during the course of employment under opposite party No.1. Further, the policy was in force as on the date of accident. The Insurance company cannot avoid its liability to pay compensation to the applicants.
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22. It is pertinent to state that when there is a lack of design on part of a person who suffered injury, then the act which caused that injury on that person is certainly an accident. In this case, the deceased -workman did not have any design to suffer a homicidal attack though it can be said that there was design on part of cleaner of the same lorry to cause injury on the deceased-workman.
23. Therefore, from the above, it is clear that the murder of the deceased amounts to an accident and he died during the course and out of his employment as driver on lorry bearing No.AP-16TY-8316. The said finding is supported by the decision of the High Court of Madhya Pradesh in the case between Sathiya v.P.W.D. 2 wherein it is held that murder during the employment is an unexpected incident and it should be considered as an accident. Also, in the case between M/s.Star Press Vs. Meena Devi reported on 12.04.2017, the Hon'ble Delhi High Court at Paras 31.4 and 31.5 held as under:-
31.4. If the employee could not and did not reasonably anticipate that the unforeseen incident 2 (1975 1 LLJ 394) 14 MGP,J CMA.No.20 of 2017 (murder) would happen to him, it is an accident. The word 'accident' excludes the idea of willful and intentional act but the phrase would include an accidental happening so far as the employee was concerned.
31.5. The employees compensation act is a social beneficial legislation and has to be liberally construed. It was enacted to give succour to employees against injuries caused by accident. The object of the Act does not specify the applicability of the Act only in case of accidents by machines only.
The injury caused by the act of another human being that result in fatal injuries tantamount to murder quo the assailant and an accidental act qua the employee."
24. In view of the decisions referred supra, the death of the deceased was due to accidental murder which arose during the course of his employment with opposite party No.1 and hence, opposite party No.2 is liable to indemnify opposite party No.1 as the subject lorry had valid insurance policy covering the date of accident.
25. In view of the foregoing discussion, this Court is of the considered opinion that the learned Commissioner has rightly 15 MGP,J CMA.No.20 of 2017 discussed all the aspects and by applying minimum rates of wages fixed by the Government vide G.O.Ms.No.83, LET & F (Lab.II) Department, dated 22.11.2006 w.e.f. 04.12.2006 and considering the relevant factor applicable to the age of the deceased, had awarded reasonable compensation for which this Court do not find any reason to interfere with the said finding which is in proper perspective. Hence, the appeal is devoid of merits and is liable to be dismissed.
26. In the result, the Appeal is dismissed without costs.
27. Miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date:10.04.2024 ysk