Telangana High Court
Cholamandalam Ms General Insurance Co. ... vs Tadi Dilleswara Rao on 15 April, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI CIVIL MISCELLANEOUS APPEAL No.1201 of 2018 J U D G M E N T:
Aggrieved by the order dated 23.08.2018 (impugned Order) passed in E.C.No.217 of 2014 by the learned Commissioner for Employees' Compensation and Assistant Commissioner of Labour-II, Hyderabad, (for short "the Commissioner"), Opposite Party 2-Insurance company (for short "O.P.2") preferred the present Appeal praying this Court to set aside the impugned Order.
02. For the sake of convenience, hereinafter, the parties will be referred to as per their array before the learned Commissioner.
03. Brief facts of the case are that:
The applicants have filed the claim application seeking compensation of Rs.15,00,000/- on account of the death of their son in the road traffic accident that occurred on 16.11.2014.
04. According to applicants, the deceased was working as Driver-cum-Cleaner on a crane vehicle bearing 2 No.AP 23P 7666 under the employment of O.P.1. On 16.11.2014, the deceased was on duty as Driver-cum- Cleaner on the crane vehicle bearing No.AP 23P 7666 and while he was lifting the fabrication material at S.B.Fabircation, Dulapally, another driver of the said vehicle, drove the crane over the deceased in a rash and negligent manner, as a result of which, the left side front tyre of the crane ran over the head of the deceased. In the said accident, the deceased sustained grievous head injury and died on the spot.
05. It is contended that the P.S.Pet Basheerabad registered a case in Crime No.478 of 2014 and took up investigation. It is further contended that the deceased was aged 20 years as on the date of accident and the applicants are totally dependant on the earnings of the deceased. It is further contended that the deceased was getting wages at Rs.10,000/- per month besides daily batha of Rs.100/- by O.P.1. The accident occurred while the deceased was under employment of O.P.1 and of O.P.1 being the owner of the crane vehicle as well as employer of 3 the deceased and O.P.2 being insurer of the said crane vehicle are jointly and severally liable to pay compensation.
06. O.P.1 filed counter, wherein, he admitted the averments made in the claim petition. He also admitted the manner of accident and death of deceased due to the injuries sustained in the accident. It is further contended that the vehicle was having valid insurance policy and was in force as on the date of accident and the driver was having valid and effective driving license and therefore, O.P.2 alone is liable to pay compensation and prayed to dismiss the claim against him.
07. O.P.2 filed counter denying the averments of the claim petition, age, income, manner of accident, injuries sustained by the deceased and also denied the driving license. They also denied the employer and employee relationship between O.P.1 and the deceased. It is further contended that the accident has not occurred during the course and out of the employment and prayed to dismiss the claim against them.
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08. Before the learned Commissioner, applicant No.1 was examined as AW1 and he got marked Exs.A1 to A11. On behalf of O.P.1, no oral or documentary evidence was adduced. On behalf of O.P.2-Insurance company, its Legal Manager was examined as RW1 and he got marked Ex.B1.
09. Considering the claim of applicants and counter filed by O.P.1 and O.P.2 and on evaluation of oral and documentary evidence available on record, the learned Commissioner has awarded compensation of Rs.8,48,450/- with 12% interest per annum.
10. Aggrieved by the impugned order, appellant- O.P.2-Insurance company has filed the present appeal.
11. Heard Sri T. Mahender Rao, learned Standing Counsel appearing for appellant-Insurance Company and Sri Ch. Indrasena Reddy, learned counsel appearing on behalf of respondent Nos.1 and 2-applicants. Perused the material available on record.
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12. The main contention of the learned standing counsel for the Appellant-Insurance company is that the learned Commissioner has erred in holding that the deceased worked as Driver-cum-Cleaner on the vehicle bearing No.AP 23P 7666 and calculated the amount treating him as a heavy vehicle driver. It is further contended that in fact, the deceased was shown as Cleaner in the FIR/Ex.A1 and charge sheet/Ex.A11 and therefore, the learned Commissioner, ought not to have calculated the compensation treating him as a Driver instead of Cleaner and the compensation awarded is excessive and hence, prayed to allow the appeal by setting aside the order. Per contra, the learned counsel for respondent Nos.1 and 2-applicants argued that the learned Commissioner after considering all the aspects has awarded just and reasonable compensation and the interference of this Court is unwarranted.
13. Now the point for consideration is that:
Whether the impugned Order and Decree dated 23.08.2018 passed in E.C.No.217 of 2014 by the learned Commissioner, is liable to be set aside?6
P O I N T:
14. This Court has perused the entire evidence and documents available on record.
15. Applicant No.1, father of deceased as AW1 in his chief examination has reiterated the contents of claim application and deposed about the manner of accident and also death of his son due to the injuries sustained in the said accident.
16. It is pertinent to state that apart from the oral evidence, applicants have relied upon documentary evidence marked under Exs.A1 to A11. Ex.A1-FIR discloses that based on a complaint/Ex.A2, a case in Crime No.478 of 2014 was registered by Police, Pet Basheerabad and took up investigation and laid charge sheet under Ex.A11 against driver of the vehicle at the time of accident. Ex.A3-Inquest panchanama discloses the manner of accident. Ex.A4- Registration certificate, Ex.A5-Permit and Ex.A6-Fitness certificate of the crime vehicle discloses that O.P.1 is owner of the vehicle involved in the accident. Ex.A8 is Crime details form. Ex.A9-Postmortem report shows that the deceased died 7 due to head injury. Ex.A10-Motor vehicle Inspector report discloses that the accident has not occurred due to any mechanical defect of the vehicle.
17. On behalf of respondent No.1, no oral or documentary evidence was adduced. On behalf of respondent No.2/ Insurance Company, its Legal Manger was examined as RW1. He deposed that the deceased was not employed as Driver-cum-Cleaner under O.P.1 and that the seating capacity of the vehicle is only one and the same was eligible to drive by the driver and further no premium was collected for cooli or cleaner/Addl. Driver. He further deposed that at the time of accident, the deceased was not driving the vehicle and the policy does not cover the risk of the deceased. Therefore, the death of deceased has not taken place during the course and out of employment with O.P.1. In the cross examination, he stated that based on the record, he is deposing and he accepted that the deceased died involving the vehicle bearing No.AP 23P 7666 and as per the charge sheet/Ex.A11, the deceased was performing his duties as Driver-cum-Cleaner on the above said vehicle of O.P.1 at the time of accident and denied the other suggestions. He further accepted that the 8 insurance policy covers the risk of driver of the vehicle. He denied the suggestion that though the deceased was not physically driving the vehicle, he is covered under the policy as the coverage of liability is unlimited and that only one person i.e. deceased died in the accident.
18. It is pertinent to state that there is no dispute regarding the manner of accident and death of deceased. The only contention raised by the learned standing counsel for the appellant/Insurance Company is that the deceased was not working as Driver-cum-Cleaner, but the learned Commissioner considered him as Driver-cum-Cleaner and awarded huge amount towards compensation.
19. As per the charge sheet/Ex.A11, the police made thorough investigation and laid charge sheet stating "Investigation reveals that the deceased Sri Tadi Gunanidhi @ Guneswara Rao S/o Dilleswara Rao Age: 20 years is a native of Hariba Village, Uppalada Post, Parlakimidi Taluq, Gajapathi District, Orissa working as a crane driver cum cleaner". Further, O.P.1 being the owner of the vehicle has also 9 admitted in his counter that the deceased was Driver-cum- Cleaner.
20. In support of his contention, the learned counsel for the respondents-applicants relied upon an authority in Oriental Insurance Co. Ltd. v. Golagani Nagamani and others 1, wherein the High Court for the erstwhile State of Andhra Pradesh held as under:
"9. .... A driver on duty on a vehicle must be deemed to be 'engaged in driving' even though he was not actually at the steering wheel and the vehicle was not in motion at the time of the accident...".
21. Learned counsel for the respondents further relied upon an authority in National Insurance Co.Ltd. v. Thimmareddy and another 2, wherein the High Court of Karnataka at Banagalore held as under:
"6. .... even in the case of a spare driver who is not actually driving the vehicle at the time of the accident that under the statutory cover in Section 147(1) proviso (i) (c) as an employee of the owner of the vehicle travelling in the course of employment, the claimant would be entitled to 1 2000 ACJ 1527 2 1999 ACJ 399 10 compensation under the Workmen's Compensation Act....".
22. In view of the above judgments and in view of the above discussion, this Court is of the considered opinion that the learned Commissioner after considering all the aspects has rightly awarded reasonable compensation, which is in a proper perspective and this Court is not inclined to interfere with the findings of the learned Commissioner. The appeal is devoid of merits and substance and liable to be dismissed.
23. 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 Date: 15.04.2024 gvl 11 THE HONOURABLE SMT. JUSTICE M. G. PRIYADARSINI CIVIL MISCELLANEOUS APPEAL No.1201 of 2018 Date: 15-APR-2024 gvl