Telangana High Court
M/S. Shriram General Insurance Co. Ltd. ... vs Smt. Tambareni Tirapathamma, Khammam ... on 5 January, 2024
HON'BLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.658 OF 2011
JUDGMENT:
1. Aggrieved by the order dated 09.02.2011 passed in W.C.No.110 of 2009, on the file of the learned Commissioner for Employees' Compensation and Assistant Commissioner of Labour-IV, Hyderabad (hereinafter be referred as 'the Comissioner'), the present appeal is filed by the appellant/Opposite party No.2/Insurance Company seeking to set-aside the same.
2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the Commissioner.
3. The facts of the case in brief are that the applicants who are the wife, son and mother of the deceased-Laxminarayana, filed the claim application claiming compensation of Rs.6,00,000/- on account of the death of the deceased- Laxminarayana. As per the applicants, the deceased was employed by opposite party No.1 as Driver on Eicher Van bearing No.AP 20Y 4779. On 28.05.2009, the deceased was on his duty as driver on the said Van was proceeding from Manuguru to Singarayakonda and at about 9.30 PM, when the 2 MGP,J CMA.No.658 of 2011 Van reached near Palavagu, Mondikunta Village in Ashwapuram Mandal outskirts, one tipper bearing No.AP 37V 5112 being driven by its driver in a rash and negligent manner at high speed, dashed against the Eicher van of the deceased. As a result, the deceased died on the spot. The P.S., Aswapuram, registered a case in Crime No.55 of 2009 under Section 304-A IPC and took up investigation. It is further contended by the applicants that the deceased was aged about 40 years at the time of accident and was getting wages of Rs.6,000/- per month apart from Rs.100/- as Batta per day. As the accident occurred during the course and out of employment, opposite party No.1, being the owner and opposite party No.2, being the Insurance Company, are jointly and severally liable to pay compensation.
4. Both the opposite party Nos.1 & 2 have filed their counter. Opposite party No.1 admitted the employment of the deceased as driver on the said Eicher Van bearing No.AP 20Y 4779, admitted the occurrence and narration of the accident, admitted the death of the deceased and that the accident arose during the course and out of employment, admitted the wages, Batta and further contended that the van has valid Insurance policy and was existing as on the date of accident and therefore, 3 MGP,J CMA.No.658 of 2011 in case compensation is awarded, opposite party No.2 alone is liable to pay the same and prayed to dismiss the claim against him.
5. Opposite party No.2 filed its counter, denied the averments of the claim application, wages, manner of accident, death of the deceased, driving license, permit, fitness certificate and contended that the claim of compensation is excess and exorbitant and prayed to dismiss the claim application filed against them. It also contended that the owner and insurer of the tipper are necessary parties to the claim application and therefore, the application is not maintainable for non-joinder of said parties.
6. Before the Commissioner, the 1st applicant was examined as AW1 and got marked Exs.A1 to A6 on their behalf.
7. On behalf of the respondents, no witness was examined. However, with the consent of learned counsel for the appellants, Ex.B1-Copy of Insurance Policy was marked by opposite party No.2.
8. After considering the entire evidence and documents filed by both sides, the learned Commissioner has awarded compensation of Rs.3,45,040/- along with interest. 4
MGP,J CMA.No.658 of 2011
9. Aggrieved by the same, the present Appeal is filed by the Appellant/opposite party No.2/Insurance Company.
10. The main contention of the learned counsel for the Appellant/Insurance Company is that no employee-employer relationship between the deceased and opposite party No.1 was established and further argued that another claim application was instituted by some other persons claiming as legal representatives of the very same deceased and hence, the application filed by the applicants is not maintainable for non- joinder of proper and necessary parties and prayed to allow the appeal by setting aside the order of the learned Commissioner.
11. Per contra, learned counsel for the respondents argued that the learned Commissioner, after considering all the aspects, has awarded just and reasonable compensation for which the interference of this Court is unwarranted.
12. Now the point that emerges for determination is
(i) Whether the applicants are entitled for the compensation?
(ii) Whether the Appellant-Insurance Company is liable to pay the said compensation?
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MGP,J CMA.No.658 of 2011 POINT:-
13. This Court has perused the entire evidence and documents filed by both sides. The applicant as AW1 has reiterated the contents of the claim application and deposed about the manner of the accident. She also relied upon Ex.A1- Copy of FIR, Ex.A2-Copy of charge sheet which discloses that the police have registered a case in Crime No.55 of 2009 under Section 304-A IPC and took up investigation and laid charge sheet. Ex.A3 is the copy of inquest report which shows that the deceased was working as driver under opposite party No.1 and Ex.A6 is the copy of driving license which shows that the deceased was having valid and effective driving license as on the date of accident. Ex.A4 is the copy of post mortem examination report which shows that the deceased died in a road traffic accident. Ex.A5 is the report of Motor Vehicle Inspector. It is pertinent to state that the opposite party No.1 in his counter admitted the employment of the deceased as driver for his vehicle i.e. Eicher Van bearing No.AP 20Y 4779. He also admitted the wages and death of the deceased. Therefore, the employment of the deceased has been established by opposite party No.1 through his counter.
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14. Opposite party No.2-Insurance Company except taking the plea that the applicants are not entitled for any compensation, has not adduced any cogent and convincing evidence to disprove the evidence of the applicants. Under these circumstances, the contention of the learned counsel for the appellants that there is no employee-employer relationship between the deceased and opposite party No.1 is unsustainable.
15. Now coming to the other aspect, learned counsel for the appellant has stated in his grounds of appeal that another claim was instituted by some other persons claiming as legal representatives of the very same deceased. It is pertinent to state that except stating that another claim has been instituted by some other persons, the Insurance Company has not taken any steps nor filed any documentary evidence to show that another claim has been filed by some other persons as legal representatives of the very same deceased. Hence, this Court cannot accept the said contention without any proof either oral or documentary. It is also pertinent to state that the learned Commissioner, after taking into consideration the age and relying upon the minimum wages fixed by the Government vide G.O.Ms.No.83, L.E.T & F (Lab.II), dated 22.11.2006, w.e.f.04.12.2006 and by applying relevant age factor, has fairly 7 MGP,J CMA.No.658 of 2011 calculated the amount of compensation and has awarded compensation of Rs.3,45,040/- which is reasonable compensation.
16. Under these circumstances, this Court finds no reason to interfere with the finding of the learned Commissioner. Hence, the Appeal is devoid of merits and substance and is liable to be dismissed.
17. Accordingly, the Appeal is dismissed without costs.
_____________________________ JUSTICE M.G.PRIYADARSINI Dt.05.01.2024 ysk 8 MGP,J CMA.No.658 of 2011 HON'BLE SMT. JUSTICE M.G.PRIYADARSINI CIVIL MISCELLANEOUS APPEAL No.658 OF 2011 Dt.05.01.2024 ysk