Telangana High Court
Legal Officer , Icici Lombard General ... vs Boddu Jayamma on 23 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.1096 OF 2014
JUDGMENT:
1. Aggrieved by the order dated 30.05.2014 in W.C.No. 212 of 2011 passed by the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-IV, Hyderabad, the opposite party No.4/Insurance Company has filed the present 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 had filed a claim application under the provisions of Employees' Compensation Act, 1923 (for short 'the Act') claiming compensation of Rs.8,00,000/- for the death of her deceased husband -Sri Boddu Jangaiah in an accident that occurred on 14.06.2011, alleging that the deceased was employed by the opposite party Nos. 1 & 3 as driver on tractor and trailer bearing Nos. AP 24AK 3845 and AP 24 AK 3846, which was insured with opposite party No.4. It is stated that on the fateful day, when the deceased was MGP,J 2 CMA-1096 of 2014 proceeding as driver on the said tractor to attend agricultural lands of opposite party No.3 and that the tractor was transporting dung, at about 4.30 PM, while the deceased was going on Sangameshwaram tank bund, the tractor turned turtle. As a result, the deceased was crushed beneath the tractor engine and one labourer, who was employed on the trolley to unload the dung, was also injured and died after struggling for life. Based on a complaint, the Police, Valigonda Police Station, registered a case in Crime No.93 of 2011. According to the applicant, the deceased was aged 36 years and was earning Rs.8,000/- per month and Batta of Rs.100/- per day as a driver under the employment of opposite party No. 1 and used to contribute for welfare of their family. Due to the accident, they lost their source of income and love and affection. Hence, the applicants have filed the application claiming compensation of Rs.8,00,000/- against the opposite party Nos. 1, 3 & 4 who are jointly and severally liable to pay the compensation.
4. Before the Commissioner, the opposite party Nos.1, 3 & 4 filed their counters, but the opposite party No.2 did not MGP,J 3 CMA-1096 of 2014 appear before the Commissioner and had not participated in the proceedings. Hence he was set exparte.
5. Opposite party No.1 filed its counter stating that the deceased died during the course and out of his employment as driver on the said tractor and was paid wages @ Rs.270/- per day by the 1st and 3rd opposite parties. He further stated that as the subject tractor and trailer was insured with opposite party No. 4, opposite party No.4 is liable to pay the compensation and prayed to dismiss the application against him. Opposite party No.3 reiterated the averments made by opposite party No.1 in the counter.
6. On the other hand, opposite party No.4-Insurance Company, filed its counter denying the averments of the claim application including, age, wages, employment of the deceased as driver on the tractor and trailer bearing Nos.AP 24AK 3845 and AP 24AK 3846, occurrence of accident, narration of the accident, wage, batta and age of the deceased and also denied that the said tractor and trailer was insured with opposite party No.4 and had a MGP,J 4 CMA-1096 of 2014 valid permit, and RC stated that the driver of the said tractor and trailer was not holding a valid and effective driving license at the time of accident and hence, the Insurance company is not liable to pay any compensation and that the claim made is excess and exorbitant and hence prayed to dismiss the claim against them.
7. The applicant herself was examined as AW1 and filed affidavit in lieu of chief examination reiterating the averments made in the claim application. In support of her claim, she got marked Exs.A1 to A4. Ex.A.1 is the copy of FIR. Ex.A.2 is the certified copy of inquest report. Ex.A3 is the copy of the final report and Ex.A4 is the copy of insurance cover note. Nothing worthy was elicited by opposite party No.4 during the cross-examination of PW1.
8. On behalf of opposite party Nos.1 & 3, none of the witnesses were examined. On behalf of opposite party No.4, RW1 was examined and Ex.B1-True copy of insurance policy, Ex.B2- office copy of legal notice dated 16.07.2013 and Ex.B3- Copy of Registration Certificate were marked.
MGP,J 5 CMA-1096 of 2014
9. The Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of deceased as Rs.5183.25 paise per month and by applying the relevant factor of '194.64', has awarded compensation of Rs.5,06,942/- along with interest @ 12% per annum from 15.07.2011 till the date of realization.
10. Aggrieved by the compensation awarded by the Commissioner, the opposite party No.2/Insurance Company has filed the present appeal to set aside the impugned order.
11. Heard both sides and perused the record.
12. The contention of the learned counsel for the appellant/Insurance Company is that the deceased is the son of Respondent Nos.2 & 3. Therefore, there is no employee-employer relationship between the deceased and opposite party No.1 and the deceased did not die during the course of employment. But, without considering the same, the learned Tribunal has awarded compensation. Moreover the Insurance policy is only for agricultural purpose and not for commercial purpose.
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13. On the other hand, learned counsel for Respondent No.1 sought to sustain the impugned order of the Commissioner contending that considering all aspects, including the age and avocation of the deceased, the Commissioner has awarded reasonable compensation and the same needs no interference by this Court.
14. The applicant No.1, who was the wife of the deceased, was examined as AW1 and had reiterated the averments made in the claim application. She stated that the deceased was invited by opposite party Nos.1 & 3 to work as driver on the said tractor on payment of wages of Rs.8,000/- per month and Batta of Rs.100/- per day. She admitted that the deceased died on 14.06.2011 while performing his duties as driver on the said tractor. Though AW1 was cross examined at length, nothing was elicited to discredit her statement. On behalf of opposite party No.4, the Legal Manager of their Company was examined as RW1. RW1 in his chief examination, deposed that the said tractor was insured vide policy bearing No. 3008/61870153/00/000. In the cross-examination, he accepted that the insurance policy was in force as on the MGP,J 7 CMA-1096 of 2014 date of accident. He also accepted that the deceased was the driver of the subject vehicle at the time of accident. He said that he do not know whether the 1st and 3rd opposite parties are partners of the tractor and trailer bearing Nos.AP 24AK 3845 and AP 24AK 3846.
15. Though the learned counsel for the appellant had taken a plea that the driver is not having valid and effective driving license as on the date of accident, they failed to adduce any evidence by summoning RTA authorities and therefore, the contention of the learned counsel for the appellant so far as the driver not having valid and effective driving license is unsustainable.
16. With regard to the employee-employer relationship between the deceased and the opposite party Nos.1 & 2, learned Standing Counsel for the Insurance Company contended that there is no employee-employer relationship between the deceased and opposite party No.1. It is pertinent to state that RW.1, during the course of his cross-examination, admitted that the deceased worked as a driver on the tractor and trailer at the time of accident. At MGP,J 8 CMA-1096 of 2014 this juncture, reliance is placed on the decision of the Apex Court in Smt.T.S.Shylaja v. Oriental Insurance Company and Another 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 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 1 AIR 2014 Supreme Court 893 MGP,J 9 CMA-1096 of 2014 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 MGP,J 10 CMA-1096 of 2014 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 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."
17. A plain reading of principle laid down in the above said citation clearly indicates that merely the deceased being employed as workmen/driver under the employment of opposite party No. 1, owner/employer, who is happened to be the father of the deceased, the Insurance Company was not bound to make contention that there is no employee-employer relationship between the deceased and opposite party No. 1. The said contention of the opposite party No.4/Insurance Company is not based on a question of law but it is purely a question of fact, which cannot be MGP,J 11 CMA-1096 of 2014 raised before this Court as per Section 30 of the Workmen's Compensation Act. Hence, the above said contention of the learned Standing Counsel for the opposite party No.2/Insurance Company is unsustainable.
18. 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. Thus, this Court is not inclined to interfere with the findings of the Commissioner.
19. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.
20. Pending Miscellaneous applications, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date:23.01.2024 ysk MGP,J 12 CMA-1096 of 2014 THE HONOURABLE SMT JUSTICE M.G.PRIYADARSINI CIVIL MISCELLANEOUS APPEAL No.1096 OF 2014 Dt.
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