Telangana High Court
United India Insurance Company ... vs G. Jitender Kumar And Another on 22 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL NO.647 OF 2013
JUDGMENT:
Aggrieved by the order dated 10.07.2006 in W.C.Case No.40 of 2003 passed by the learned Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-I, at Hyderabad, the opposite party No.2/Insurance company has filed the present Civil Miscellaneous Appeal.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Assistant Commissioner.
3. The brief facts of the case are that the applicant has filed an application under the provisions of Workmen's Compensation Act, 1923 (amended as Employee's Compensation Act, 1923) claiming compensation of Rs.3,00,000/- against the employer of the deceased and the insurer respectively for the injuries sustained by the applicant.
4. The applicant in his claim application stated that he was working as a cleaner in the lorry bearing No. AP 28 U 2789, under the employment of opposite party No.1 on payment of a monthly salary of Rs.3,000/-. On 08.02.2003 on the instructions of opposite party No.1 the applicant was proceeding on the vehicle from Manthani to 2 MGP,J CMA_647_2013 Hyderabad with a load of sand and when the said lorry reached Kamanpur cross roads near a culvert at Gundaram village, the driver of the vehicle drove the same in rash and negligent manner at high speed, due to which the vehicle went off the road and turned turtle. As a result, the applicant sustained grievous injuries. Immediately, the applicant was shifted to Gandhi Hospital, Secunderabad for treatment as in-patient. The applicant underwent surgery on his right leg and two fingers of the right leg were removed. A case in Crime No.89 of 2003 under Section 338 of the Indian Penal Code was registered by Police at Kamanpur Police Station, Karimnagar District and thereafter charge sheet was laid for the offence under Section 338 of the Indian Penal Code. As on the date of accident, the applicant was aged about 23 years and drawing a monthly salary of Rs.3,000/- under the employment of opposite party No.1. Due to the injuries, the applicant became permanently disabled, as such, he is unable to do work as a cleaner or any work as he used to do prior to the date of accident. The accident occurred during the course and out of his employment under opposite party No.1 and as the insurance policy was subsisting as on the date of the accident, the opposite party No.1 being the owner and opposite party No.2 being the insurer, are jointly and severally liable to pay compensation of Rs.3,00,000/- to the applicant.
3 MGP,J CMA_647_2013
5. The opposite party No.1, in his counter did not dispute the averments of the application including age, income of the deceased as cleaner on his lorry bearing No. AP 28 U 2789, admitted the manner of the accident and injuries sustained during the course of his employment in the accident that occurred on 13.05.2003 and that he has insured his lorry with the opposite party No.2 and the policy was valid as on the date of the accident. It is further contended that if any compensation is awarded to the applicant, the same has to be satisfied by opposite party No.2 and prayed to dismiss claim against him.
6. The opposite party No.2 filed counter denying the averments of the application including age, wages of the applicant as cleaner under opposite party No.1, manner of accident and employer-employee relationship between the opposite party No.1 and applicant. It is contended that the crime vehicle is insured in the name of Sri. T Sambashiva Rao and the applicant has categorically stated that he is employed under Mr. Damodar Reddy, however, he has filed claim application against Mr. Jitender Kumar and the employer is not made party to the claim application. It is further contended that the claim of the applicant was excessive, exorbitant and prayed to dismiss the application.
7. On behalf of the applicant, A.W-1 and P.W-2 were examined and Exs.A1 to A4 were marked. Exs.A1 and A2 are the certified copies 4 MGP,J CMA_647_2013 of FIR and charge sheet. Ex.A3 is the copy of Medico-Legal Case with opinion issued by the Gandhi Hospital and Ex.A4 is the original disability certificate issued by P.W-2. On behalf of opposite party No. 2, no oral evidence was adduced, however, Ex.B1 certified copy of insurance policy was marked.
Based on the pleadings of the parties, the learned Commissioner framed the following issues:
1. Whether A. Amarender Reddy, was employed by the opposite party No.1 on 13.05.2003 (the date of accident) having been employed as a Cleaner?
2. whether the accident occurred during the course of his employment due to which the applicant has became permanent partial disabled?
3. What is the percentage of disability?
4. Whether the sum of Rs.3,00,000/- claimed by the applicant is due to him towards compensation? and;
5. Which of the opposite party liable to pay compensation to the applicant if any?
8. The learned Commissioner after considering the oral and documentary evidence on record determined the wage of applicant as Rs.2,158/- per month and by applying the relevant factor '219.95' for the age of injured being 23 years and taking into consideration the disability of the applicant @ 45%, has awarded compensation of Rs.1,28,156/- together with stamp fee of Rs.250/- and Advocate fee of Rs.1000/-, totaling
5 MGP,J CMA_647_2013 Rs.1,29,406/- (Rupees One lakh twenty nine thousand four hundred and six only).
9. Aggrieved by the quantum of compensation awarded and assailing the liability on insurer by the learned Commissioner, the appellant/insurance company has filed the present Civil Miscellaneous Appeal.
10. Heard Sri V. Sambasiva Rao, learned Standing Counsel for the opposite party No.2 and Smt. P. Rajeswari, learned counsel for respondent No.2 and perused the record including the grounds of appeal.
11. The main contention of the learned Standing Counsel for the opposite party No.2 is that the appellant herein has not issued the insurance policy bearing No.050504/31/02/03032 in the name of opposite party No.1 i.e., G. Jitender Kumar rather the insurance policy was issued is in the name of Mr. T. Sambasiva Rao. It is further contended that the vehicle insured neither stands in the name of opposite party No.1 i.e., G. Jitender Kumar nor the alleged employer i.e., Mr. Damodar Reddy. Further, the applicant himself admits in his cross examination that he was working with one Sri Damodar Reddy, who was nowhere concerned with the case, therefore there was 6 MGP,J CMA_647_2013 no employer-employee relationship between opposite party No.1 and applicant and in such case, when the essential yardstick of employee-employer relationship is not proved by the applicant, the question of awarding compensation doesn't arise. However, without considering the above aspects, the learned Commissioner erred in awarding compensation amount in favour of respondent/applicant and thereby, the appellant/ insurance Company prayed to set-aside the impugned award passed by the learned Commissioner and allow the appeal.
12. On the other hand, the learned counsel for respondent/applicant contended that the learned Commissioner after considering oral and documentary evidence on record came to the right conclusion and recorded a finding that the applicant was employed as a cleaner on the alleged lorry and the employer and employee relationship is established by the applicant, therefore, the award passed by the learned commissioner does not warrant any interference by this Court and prayed that appeal deserves to be dismissed at the threshold.
13. A perusal of record, admittedly, the vehicle bearing No.AP.28 U 2789 was insured with opposite party No.2 and policy was in force as on the date of accident. Further, the 7 MGP,J CMA_647_2013 document under Ex.A-1 First Information Report shows that a case was registered in Crime No. 89 of 2003 under Section 338 of Indian Penal Code against the driver and after thorough investigation police laid charge sheet against the driver of the crime vehicle. Therefore, there is no dispute as to manner of accident and injuries (i.e., fracture of right femur, crush injury of right foot) sustained by the applicant as per Ex.A3. It is also pertinent to state that PW-2, orthopedic surgeon also supports the evidence of A.W-1 regarding the injuries sustained by the applicant and stated that he has operated the applicant twice i.e., on 15.5.2003 and 21.05.2003 respectively and inserted rods in the right leg and that two fingers of right foot were amputated. After follow up treatment as in-patient applicant was discharged from the hospital with an advice to use hand stick and has also issued Ex.A-4 disability certificate assessing the disability at 45%.
14. Now, coming to the fulcrum of the entire case on hand, the fundamental question which comes for consideration before this court is whether the applicant established employer- employee relationship with opposite party No.1, who is the owner of the lorry and does an insurance policy issued in favour of a vehicle stands irrespective of owner of the vehicle or the 8 MGP,J CMA_647_2013 policy should only stand in the name of person, who is owner of the vehicle?
15. In order to ascertain the above points for consideration, it is relevant to state that on perusal of Ex. B-1 insurance policy, the policy was issued in the name of Sri T Sambashiva Rao. However, on perusal Ex.A-1 Copy of First Information Report and Ex. A-2 Copy of Charge sheet the vehicle number is one and the same as mentioned in the claim application. Thus, it is established that insurance of the crime vehicle was in force on date of accident. In this context, it is relevant to refer the observation made by Honourable Apex Court in the case of United India Insurance Company Ltd. v. Santro Devi 1 and in the case of Babbu Miyan and another v. New India Assurance Co. Ltd. and another, 2 wherein it was held as follows:
"the insurance policy runs with the vehicle irrespective of the person, who had taken the insurance policy, as, essentially, indemnification is with respect to the loss of property; that change of ownership of the vehicle does not change the nature of employment and that the deceased- workman was engaged as Driver with respect to the subject vehicle and as long as the vehicle is insured, the policy would govern the liability."
16. Therefore, in view of the above discussion and having regard to the fact of the case, said issue is squarely covered by the judgments referred to above. Thus, the insurance policy 1 (2009) 1 SCC 558 2 2017 ACJ 721 9 MGP,J CMA_647_2013 was issued in favour of the crime vehicle and mere transfer of ownership or policy being in the name of some other person doesn't disentitle or paralyses the rights of the applicant to claim compensation against the insurer and as such the insurance company cannot escape from its liability of compensating the applicant.
17. It is also pertinent to note that the applicant in his cross examination has admitted that though he was working under Sri Damodar Reddy but, the claim application has been instituted against Sri Jitender Kumar. However, he categorically stated that both Sri Damodar Reddy and Sri Jitender Kumar are partners in the same business entity. Therefore, the applicant has shown the owner of the lorry i.e. Sri Jitender Kumar as necessary party.
18. Thus, this court is of the considered opinion that the applicant has categorically established the employer-employee relationship and thus, the question of maintainability of a claim application against opposite party No.1 and excluding i.e., Sri Damodar Reddy, as a party to the claim application, who is the employer of the applicant is not fatal to the case as the opposite party No.1 and the employer are partners of the same business entity and the nexus between both of them is proved from the 10 MGP,J CMA_647_2013 fact that the opposite party No.1 has authorized Sri Damodar Reddy to file counter on his behalf as opposite party No. 1 in the present case. Thus, in view of the same making owner of the crime vehicle as party is sufficient to maintain the claim application. Henceforth, the arguments advanced by appellant/insurance Company are untenable.
19. In view of these facts and circumstances and considering the principle laid down in the above said authority, I do not find any substance in the appeal so as to disturb the reasoned order passed by learned Commissioner awarding compensation in favour of applicant. Hence, the appeal is devoid of merits and liable to be dismissed.
20. 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: 22.01.2024 AS