Telangana High Court
Legal Officer, Hyderabad vs Boddu Narsimha, Nalgonda Dist And 6 ... on 23 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.880 OF 2014
JUDGMENT:
1. Aggrieved by the order dated 30.05.2014 in W.C.No. 211 of 2011 passed by the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-IV, Hyderabad, the opposite party No.3/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 No.1, who is the husband of the deceased, along with his children and mother, 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 his deceased wife -Sri Boddu Jayamma in an accident that occurred on 14.06.2011, alleging that the deceased was employed by the opposite party Nos. 1 & 2 as labourer on the tractor and trailer bearing Nos. AP 24AK 3845 and AP 24 AK 3846, which was insured with opposite 2 MGP,J CMA.No.880 of 2014 party No.3. It is stated that on the fateful day, when the deceased was proceeding as labourer on the said tractor which was owned by opposite party Nos.1 & 2 to unload the dung in the fields of opposite party No.2 and at about 4.30 PM, while the deceased was going on Sangameshwaram tank bund, the tractor turned turtle. As a result, the deceased came underneath the dung and beneath the tractor and died on the spot due to suffocation and the driver of the said tractor, Sri Jangaiah, also died due to the injuries sustained in the said accident. Based on the complaint, the Police, Valigonda Police Station, registered a case in Crime No.93 of 2011. According to the applicant, the deceased was aged 38 years and was earning Rs.8,000/- per month and Batta of Rs.100/- per day under the employment of opposite party Nos.1 & 2 and used to contribute for the welfare of the 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 parties who are jointly and severally liable to pay compensation.
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4. Before the Commissioner, the opposite party No.1 filed his counter and admitted the employment of the deceased as labourer under him, admitted the accidental death of the deceased and that the amount of compensation claimed by the applicants is excess and exorbitant and prayed to dismiss the claim against him. Opposite party No.2 filed counter reiterating the same averments made in the counter filed by opposite party No.1. Opposite party No.3-Insurance Company, filed its counter denying the averments of the application such as employment of the deceased as labourer on the tractor and trailer bearing Nos.AP 24AK 3845 and AP 24AK 3846, denied the occurrence of accident, denied the narration of the accident, denied that the deceased was a workman, denied that the deceased died during the course of her employment, denied the wage, batta and age of the deceased as claimed by the applicant, denied that the said tractor and trailer was insured with opposite party No.3, denied that the said tractor and trailer are roadworthy to ply and that the tractor was having a valid permit, fitness certificate and RC at the time of accident and denied that 4 MGP,J CMA.No.880 of 2014 the driver of the said tractor and trailer was holding a valid and effective driving license at the time of accident and hence, the Insurance Company is not liable to pay the compensation. He also contended that the compensation claimed is excess and exorbitant and hence, prayed to dismiss the application.
5. The applicant No.1 was examined himself as AW1 and filed affidavit in lieu of chief examination reiterating the averments made in the claim application. In support of his claim, he got marked Exs.A1 to A5. 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 post mortem report. Ex.A4 is the copy of action abated memo and Ex.A5 is the copy of insurance policy. Nothing worthy was elicited by opposite party No.3 during the cross-examination of the said witness.
6. On behalf of opposite party Nos.1 & 2, none of the witnesses were examined. On behalf of opposite party No.3, RW1 was examined and Ex.B1-True copy of insurance policy, Ex.B2- office copy of legal notice dated 5 MGP,J CMA.No.880 of 2014 16.07.2013 and Ex.B3- Copy of postal receipt, were marked.
7. The Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of deceased as Rs.4393.25 paise per month and by applying the relevant factor, has awarded compensation of Rs.4,18,724/- along with interest @ 12% per annum from 15.07.2011 till the date of realization.
8. Aggrieved by the compensation awarded by the Commissioner, the opposite party No.3/Insurance Company has filed the present appeal to set aside the impugned order.
9. Heard both sides and perused the record.
10. Learned Standing Counsel for the appellant/ Insurance Company contended that there is no insurance coverage to the labourer on the said tractor and trailer. He further contended that there was no employee-employer relationship as the deceased was daughter in law of opposite party No.1.
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11. On the other hand, learned counsel for Respondent Nos.1 to 5/applicants 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.
12. The applicant No.1, who is the husband of the deceased, was examined as AW1 and had reiterated the averments made in the claim application. He stated that the deceased was employed as labourer under opposite party Nos.1 & 2 on payment of wages of Rs.8,000/- per month and Batta of Rs.100/- per day. He admitted that the deceased died on 14.06.2011 while performing her duties as labour on the said tractor. Though AW1 was cross examined at length, nothing was elicited to discredit her statement. On behalf of opposite party No.3, 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 7 MGP,J CMA.No.880 of 2014 policy was in force as on the date of accident. He also accepted that the deceased worked as labourer in the subject vehicle at the time of accident. He said that he do not know whether the 1st and 2nd opposite parties are partners of the tractor and trailer bearing Nos.AP 24AK 3845 and AP 24AK 3846.
13. With regard to the employee-employer relationship between the deceased and opposite party No.1, 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 Ex.A3-final report filed by police establishes that the deceased worked as a labourer on the said tractor and trailer for loading ad unloading manure on 14.06.2011 and she met with an accident and died on the spot due to the injuries sustained by her. No evidence either oral or documentary was produced by the opposite party No.3- Insurance company to disbelieve the said version. Even assuming for a moment that the deceased was daughter- in-law of opposite party No.1, there is no law that relatives 8 MGP,J CMA.No.880 of 2014 can't be in employee-employer relationship. At 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 1 AIR 2014 Supreme Court 893 9 MGP,J CMA.No.880 of 2014 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 10 MGP,J CMA.No.880 of 2014 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."
14. 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-in-law 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.3/Insurance Company is not based on a question of law but it is purely a question of fact, which 11 MGP,J CMA.No.880 of 2014 cannot be 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.
15. 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.
16. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.
17. Miscellaneous applications pending, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date:23.01.2024 ysk