Telangana High Court
Smt.Haseena And 5 Others vs Mr.Ameer Pasha Syed And Another on 13 February, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL Nos.237 of 2013
and 672 of 2014
COMMON JUDGMENT:
1. These Civil Miscellaneous Appeals are directed against order dated 22.11.2012 in W.C.No.9 of 2012 on the file of the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-IV, Hyderabad (hereinafter referred to as 'Commissioner'). The said claim application was filed by the applicants therein seeking compensation for death of one Sri Raheem Pasha @ Patil Raheem Pasha (hereinafter referred to as 'deceased') in an accident that occurred on 17.01.2017 and the same was partly allowed granting compensation of Rs.5,21,260/-. Aggrieved by the said order, opposite party No.2 before the Commissioner filed C.M.A.No.237 of 2013 seeking to set aside the impugned order and dismiss the claim application and the applicants before the Commissioner filed C.M.A.No.672 of 2014 seeking enhancement of the compensation granted by the Commissioner. Since both the appeals are arising out of same order, they are being dealt with by way of this common judgment. 2
MGP,J CMA_237_2013 & CMA_672_2014
2. The applicants before the Commissioner are respondent Nos.1 to 6 in C.M.A.No.237 of 2013 and appellants in C.M.A.No.672 of 2014. Opposite party No.1 before the Commissioner is respondent No.7 in C.M.A.No.237 of 2013 and respondent No.1 in C.M.A.No.672 of 2014. Opposite party No.2 before the Commissioner is appellant in C.M.A.No.237 of 2013 and respondent No.2 in C.M.A.No.672 of 2014. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
3. The brief facts of the case of the applicants are that applicant No.1 is wife, applicant Nos.2 to 4 are children and applicant No.5 and 6 are parents of the deceased. The deceased was working as driver of auto bearing No.AP 26 X 4520 under the employment of opposite party No.1. On, 17.01.2012, during the course of his employment, the deceased went online and picked up passengers at Shadan Hospital and was proceeding towards Asifnagar. On the way, at about 09:00 hours, when the auto reached near a turning at Raghuramnagar, the auto dashed against road divider and turned turtle. As a result accident occurred, the deceased feel from the auto and sustained injuries. 3
MGP,J CMA_237_2013 & CMA_672_2014 Immediately, the deceased was shifted to Osmania General Hospital, Hyderabad, for treatment, where the doctors declared him as dead. In this regard, a case was registered in Crime No.10 of 2012 on the file of Narsingi Police Station under Section 304-A of the Indian Penal Code, 1860.
4. It is further the case of the applicants that the deceased was aged about 39 years and was being paid an amount of Rs.6,500/- per month towards wages and Rs.100/- per day towards batha by opposite party No.1. The accident occurred during the course and out of his employment as driver. The auto involved in the accident was owned by opposite party No.1 and was insured with opposite party No.2 with valid insurance policy as on the date of the accident. Opposite party No.1 being the owner and opposite party No.2 being the insurer are liable to pay compensation to the applicant. Hence, the applicants filed the present claim application seeking compensation of Rs.9,00,000/- along with interest.
5. Opposite party No.1 filed his counter admitting the death of the deceased, monthly wages and daily batha paid to him, age of 4 MGP,J CMA_237_2013 & CMA_672_2014 the deceased and stated that the auto involved in the accident was insured with opposite party No.2 with valid and effective insurance policy. As such, opposite party No.2 is liable to indemnify opposite party No.1. Hence, prayed to dismiss the claim against him.
6. Opposite party No.2 filed its counter denying the averments of the claim application such as employee and employer relationship between the deceased and opposite party No.1, occurrence of the accident, age and wages of the applicant. It is also contended that the deceased was not having valid and effective driving license as on the date of the accident. It is the contention of opposite party No.2 that the deceased is not employed as driver under opposite party No.1 and the auto involved in the accident belongs to the family of deceased and that the deceased and opposite party No.1 are father and son. Hence, prayed to dismiss the claim application.
7. In support of their case, the applicants got examined A.W.1 and got marked Exs.A-1 to A-6. Opposite party No.1 was got 5 MGP,J CMA_237_2013 & CMA_672_2014 examined as R.W.1 and got marked Exs.B-1 and B-2 and opposite party No.2 got examined R.W.1 and got marked Ex.B-3.
8. On the basis of the above pleadings, the following issues were framed by the Commissioner:
"1. Whether the deceased was an employee within the meaning of the Act?
2. Whether the deceased died due to the injuries sustained in an accident that arose out of and in the course of employment?
3. If yes, who are liable to pay compensation to the dependants of the deceased?
4. What is the quantum of compensation entitled by the dependants of the deceased?"
9. After considering the pleadings and evidence on record, the Commissioner held that the applicants have successfully proved their case. Hence, the claim application was partly allowed holding that both the opposite parties were liable to pay compensation and granted an amount of Rs.5,21,260/- towards compensation payable to the applicants.
10. Heard both sides.
6
MGP,J CMA_237_2013 & CMA_672_2014
11. Learned counsel for opposite party No.2/appellant in C.M.A.No.237 of 2013 contended that the deceased was father of opposite party No.1 and there was no employee and employer relationship between both of them, without considering the said fact the Commissioner erred in awarding compensation to the applicants. It is also contended that the income of the deceased is considered by the Commissioner on higher side. Hence, prayed to allow the appeal and set aside the impugned order.
12. Per contra, the learned counsel for the applicants/appellants in C.M.A.No.672 of 2014 contended that though, opposite party No.1 agreed that the deceased was being paid an amount of Rs.6,500/- per month towards wages and Rs.100/- towards batha, the Commissioner without considering the same has awarded meager amount towards compensation by taking into consideration the minimum wages of the deceased at Rs.5,246.25/- per month. It is also contended that without considering all the aspects the Commissioner has granted compensation of Rs.5,21,260/- and interest, which are on lower side. Hence, prayed to allow the appeal and enhance compensation awarded by the Commissioner. 7
MGP,J CMA_237_2013 & CMA_672_2014
13. Now the point for determination is as follows:
"1. Whether the applicants are entitled for enhancement of compensation as prayed for?
2. Whether the Commissioner is justified in granting compensation based on the evidence on record?"
Point Nos.1 and 2:
14. This Court has perused the entire evidence and material placed on record. The applicants got examined applicant No.1 as A.W.1, who reiterated the contents of the claim application and deposed about the manner of the accident and death of the deceased. In the cross-examination, she denied all the suggestions put to her and nothing contrary was elicited.
15. Opposite party No.1 was examined as R.W.1, in support of the case of the applicants, he deposed that he is owner of the vehicle involved in the accident. He also deposed that the deceased was employed under him as driver and that the deceased was paid an amount of Rs.6,500/- per month towards wages and Rs.100/- per day towards batha. He further stated that the auto involved in the accident was insured with opposite party No.2 with valid and effective insurance policy and that 8 MGP,J CMA_237_2013 & CMA_672_2014 opposite party No.2 is liable to indemnify opposite party No.1. He also filed Exs.B-1 and B-2. In the cross-examination, R.W.1 admitted that the deceased was his father. However, he stated that the deceased was doing his job as driver on the auto owned by opposite party No.1. He denied the suggestions with regard to non-existence of employee and employer relationship between the deceased and himself.
16. On behalf of opposite party No.2, its Assistant Manager was examined as R.W.2. She reiterated the contents of the counter and deposed that deceased was not having valid driving license at the time of the accident to drive the goods carrying commercial vehicle. She also deposed that the deceased was father of opposite party No.1 as such there was no employee and employer relationship between them. In the cross-examination, R.W.2 deposed that she was deposing purely on the basis of record and she had no personal knowledge about the matter. She denied the suggestion that the auto was not used for the family entertainment of the deceased. She also denied that there was employee and employer relationship between the deceased and opposite party No.1.
9
MGP,J CMA_237_2013 & CMA_672_2014
17. It is pertinent to state that a perusal of Ex.A-1 copy of first information report in Crime No.10 of 2012 on the file of Police Station Narsingi and Ex.A-2 certified copy of inquest report clearly discloses that the applicant was driver of auto bearing No.AP 26 X 4520 and on 17.01.2012, while on duty as driver of the said auto, he met with an accident. On the said day, when he was proceeding from Shadan Hospital to Asifnagar, at about 09:00 hours, when the auto reached near a turning at Raghuramnagar, the auto dashed road divider and turned turtle, as such the accident occurred. Immediately, he was shifted to Osmania General Hospital, where he was declared dead. Hence, there is no dispute with regard to occurrence of the accident. It is also not in dispute that the deceased was holding valid and effective driving license as on the date of the accident, which was marked as Ex.A-3. Further, Ex.A-6/Ex.B-3 insurance policy clearly discloses that the same was in force as on the date of the accident.
18. The main dispute in the present matter is with regard to employee and employer relationship between the deceased and opposite party No.1. Learned counsel for opposite party 10 MGP,J CMA_237_2013 & CMA_672_2014 No.2/appellant in C.M.A.No.237 of 2013 contended that there is no employee and employer relationship between the deceased and opposite party No.1, as they are father and son. It is pertinent to state that opposite party No.1, employer, who is the owner of the said auto, was examined as R.W.1 and he categorically deposed that the deceased was working as driver under his employment on the said auto. In cross-examination also he admitted that the deceased, who is happened to be his father, was working under his employment as driver. At this juncture, it is apt to refer to the decision of the Apex Court in Smt.T.S.Shylaja v. Oriental Insurance Company 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 1 AIR 2014 Supreme Court 893 11 MGP,J CMA_237_2013 & CMA_672_2014 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 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 12 MGP,J CMA_237_2013 & CMA_672_2014 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."
19. A plain reading of principle laid down in the above decision clearly indicates that merely the deceased being employed as driver under the employment of opposite party No.1, owner/employer, who is happened to be the son of the deceased, the insurance company/opposite party No.2 was not bound to make contention that there is no employee and 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 of the Workmen's Compensation Act, 1923. Hence, the above said contention of the learned opposite party No.2/appellant in C.M.A.No.237 of 2013 is unsustainable. Under these circumstances, this Court is of the considered opinion that the Commissioner, after considering all the aspects, has rightly came to the conclusion in awarding compensation to the applicants. 13
MGP,J CMA_237_2013 & CMA_672_2014 Thus, this Court is not inclined to interfere with the said findings of the Commissioner.
20. Coming to the quantum of compensation, the applicants contended that the deceased was 39 years at the time of the accident and opposite party No.2 disputed the same. However, the Commissioner relying upon Ex.A-3 driving license of the deceased came to the conclusion that the deceased was aged about 39 years as on the date of the accident. Hence, interference of this Court into the said aspect is unwarranted.
21. With regard to the aspect of the wages of the deceased, it is pertinent to state that the case of the applicants is that the deceased was being paid an amount of Rs.6,500/- per month towards wages by opposite party No.1 and Rs.100/- per day towards batha. In support of the said contention, opposite party No.1 was examined, who supported the case of the applicants with regard to payment of wages and batha. On the other hand, though opposite party No.2 disputed the payment of wages of Rs.6,500/- per month and Rs.100/- per month towards batha, no evidence of any kind was produced by opposite party No.2. In the 14 MGP,J CMA_237_2013 & CMA_672_2014 said circumstances, the Commissioner considering the minimum rates of wages fixed by the Government at the time of the accident and also considering the restriction of wages as per the Gazette issued by the Government of India at maximum of Rs.8,000/- per month has determined the wages of the deceased at Rs.5,246.25/- per month. However, the Commissioner failed to consider the evidence of opposite party No.1 as R.W.1 that he was paying an amount of Rs.6,500/- per month towards wages and Rs.100/- towards batha to the deceased. Therefore, considering the said aspects, this Court is of the opinion that the wages of the deceased considered by the Commissioner is on little lower side. Hence, the same can be enhanced to Rs.6,000/- per month. Therefore, as per the formula, the calculation of compensation amount is as follows:
Rs.6,000/- X 50/100 X 186.90 = Rs.5,60,700/-
22. The Commissioner has also granted an amount of Rs.980/- towards stamp fee and Rs.500/- towards advocate fee. After adding the said amounts, the total amount of compensation comes to Rs.5,62,180/-.
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MGP,J CMA_237_2013 & CMA_672_2014
23. Insofar rate of interest is concerned, as per the decision of the Hon'ble Supreme Court in P. Meenaraj v. P. Adigurusamy 2, held as under:
"10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo (supra), this Court has not laid down the law that the interest would be payable only 30 days after the accident. In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident."
24. In view of the principle laid down in the above said decision, it is evident that the applicants are entitled for interest at 12% per annum on the compensation amount from the date of accident till date of deposit. Hence, this Court is inclined to award interest at 2 Civil Appeal No 209 of 2022, decided on 6 January 2022 16 MGP,J CMA_237_2013 & CMA_672_2014 12% per annum on the compensation amount from the date of accident till the date of deposit.
25. In the result, Civil Miscellaneous Appeal No.237 of 2013 is dismissed and Civil Miscellaneous Appeal No.672 of 2014 is partly allowed by enhancing the compensation from Rs.5,21,260/- to Rs.5,62,180/- payable along with interest at 12% per annum on the compensation amount from the date of accident till the date of deposit. Opposite party Nos.1 and 2 are directed to deposit the enhanced amount of compensation along with accrued interest before the Commissioner within period of two months from the date of receipt of copy of this common judgment. On such deposit, the applicants are entitled to withdraw the said amount. There shall be no order as to costs. Miscellaneous applications pending, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 13.02.2024 GVR