Telangana High Court
United India Insurance Co Ltd., ... vs Haseea Bee, Medak Dist And 3 Others on 24 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.890 of 2016
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed against order dated 20.07.2016 in W.C.No.46 of 2015 on the file of the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-II (FAC), Hyderabad (hereinafter referred to as 'the Commissioner'). The said claim application was filed by respondent Nos.1 to 3 herein seeking compensation for death of one Sayyed Ayub (hereinafter referred to as 'deceased') in an accident that occurred on 02.03.2015 and the same was partly allowed by the Commissioner granting compensation of Rs.7,08,012/-. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed at the instance of opposite party No.2 before the Commissioner i.e., the insurance company.
2. The appellant herein is opposite party No.2, respondent Nos.1 to 3 herein are applicants and respondent No.4 herein is opposite party No.1 before the Commissioner. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
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3. The brief facts of the case of the applicants are that applicant No.1 is wife, applicant No.2 is daughter and applicant No.3 is mother of the deceased. The deceased was working as driver on vehicle bearing No.AP 23 TC 252 under the employment of opposite party No.1. The deceased used to collect vehicles in the company of opposite party No.1 and drop the same at various showrooms of Mahindra Company Manufactured vehicles belonging to opposite party No.1. While so, on 02.03.2015, in the evening hours, the deceased took vehicle bearing No.AP 23 TC 252 and went to his home at Ranjole in order to have dinner. After having dinner, the deceased was proceeding on the said vehicle to Bidar to deliver the said vehicle. On the way, at about 20:30 hours, when he reached the outskirts of Ranjole village, near Allipur Khana on National Highway No.65 road, one lorry bearing No.AP 16 TY 0642 being driven in rash and negligent manner came in the opposite direction and dashed the vehicle of the deceased. As a result, accident occurred, the deceased sustained grievous injuries particularly on head, due to which he died on the spot. In this regard, a case was registered in Crime No.23 of 2015 on the file of Police Station Zaheerabad.
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4. It is the further case of the applicants that the deceased died during the course and out of his employment under opposite party No.1 as driver. He was aged about 27 years as on the date of the accident and he was being paid an amount of Rs.10,000/- per month towards wages and Rs.200/- per day towards batha. The vehicle involved in the accident was owned by opposite party No.1 and insured with opposite party No.2 with valid and effective insurance policy as on the date of the accident. Hence, the applicants filed the present claim application seeking compensation of Rs.15,00,000/-.
5. Opposite party No.1 filed its counter denying the averments of the claim application. It is the case of opposite party No.1 that they have outsourced their logistics activity of transporting vehicles manufactured by them to various places, through Mahindra Logistics Limited, which is subsidiary to opposite party No.1, through agreement for outbound transportation dated 10.07.2014. As per the said agreement, the Mahindra Logistics Limited was having sole discretion for appointment of the transporters and opposite party was not at all responsible for transportation of its vehicles. The Mahindra Logistics Limited 4 MGP,J CMA_890_2016 used to make agreements with various transporters and one of such transporter is Narayan Auto Works. The said agreement pertaining to Narayan Auto Works was pending from financial year 2012 onwards. It is the case of opposite party No.1 that there was an agreement in between the Mahindra Logistics Limited and said Narayan Auto Works to transport vehicles to various destinations as instructed by opposite party No.1. On the said lines, the deceased was appointed as driver on the vehicle involved in the accident by said Narayan Auto Works. In the said circumstances, opposite party No.1 was not aware of appointment of the deceased as driver of vehicle involved in the accident, occurrence of the accident and death of the deceased in the said accident.
6. It is also stated by opposite party No.1 in the counter that the deceased was employed as driver on vehicle involved in the accident through its Sub-contractor Mahindra Logistics Limited, who in turn took the services of Narayan Auto Works Limited, for hiring the deceased as driver, who used to collect vehicles and drop at various showrooms of Mahindra Company. Hence, the deceased was not employed under opposite party No.1. 5
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7. Furthermore, as per opposite party No.1, the applicants ought to have made the owner of lorry bearing No.AP 16 TY 0642 and its insurance company as parties to the present claim application, as the accident occurred due to the rash and negligent manner of the driver of the said lorry. It is also stated that the vehicle bearing No.AP 23 TC 252, which is owned by opposite party No.1 was insured with opposite party No.2 with valid and effective insurance policy as on the date of the accident. As such, if there is any liability, then opposite party No.2 alone is liable to pay compensation to the applicants. Hence, prayed to dismiss the claim application against them.
8. Opposite party No.2 filed its counter denying the averments of the claim application such as employment, age, wages, manner of the accident and death of the deceased in the accident that occurred on 02.03.2015. Opposite party No.2 also denied that the deceased was having valid driving license. It is also stated that the claim application is not maintainable as the applicants have not made parties the owner and insurer of lorry bearing No.AP 16 TY 0642, which was involved in the accident along with the vehicle 6 MGP,J CMA_890_2016 of the deceased. Hence, prayed to dismiss the claim application against them.
9. In support of their case, the applicants got examined A.W.1 and got marked Exs.A-1 to A-8. Opposite party No.1 got examined R.W.1 and Exs.B-1 to B-6 were got marked. Opposite party No.2 got examined R.W.2 and Ex.B-7 was marked.
10. On the basis of the above pleadings and evidence, the Commissioner framed the following issues:
"1. Whether the deceased met with an accident on 02.03.2015 and died due to the injuries sustained in the accident during the course and out of his employment as a driver on the vehicle bearing No.AP 23 TC 252 under the employment of O.P.1?
2. If yes, who are liable to pay compensation?
3. What is the amount of compensation entitled by applicants?"
11. After considering the evidence and documents filed by both sides, the Commissioner awarded an amount of Rs.7,08,012/- towards compensation to the applicants. Aggrieved by the same, the present appeal is filed by opposite party No.2.
12. Heard both sides.
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13. Learned counsel for the appellant/opposite party No.2 contended that though, the applicants failed to establish employee and employer relationship between the deceased and opposite party No.1, the Commissioner without considering the evidence on record has granted compensation. It is also contended that the compensation and interest thereon granted by the Commissioner is on higher side. Hence, prayed to set aside the impugned order by allowing the present appeal.
14. Per contra, the learned counsel for the respondent Nos.1 to 3/applicants contended that the Commissioner after considering all the aspects has awarded reasonable compensation and interference of this Court is unnecessary.
15. Now, the point for determination is as follows:
"Whether the applicants are entitled for the compensation as granted by the Commissioner?"
Point:-
16. This Court has perused the entire evidence and documents placed on record by both the parties. Applicant No.1 was examined as A.W.1 and she reiterated the contents of the claim application. She got marked Exs.A-1 to A-8 in support of her 8 MGP,J CMA_890_2016 case. She also deposed that opposite party No.1 paid some amount towards funeral expenses of the deceased. In the cross- examination by opposite party No.1, A.W.1 denied the suggestions made by opposite party No.1 and deposed that she did not know about the agreements between opposite party No.1, Mahindra Logistics Limited and Narayana Auto Works. In the cross- examination by opposite party No.2, A.W.2 deposed that she was not eye-witness to the accident and she categorically denied the suggestions made by opposite party No.2.
17. On behalf of opposite party No.1, its Assistant Manager was examined as R.W.1. He reiterated the contents of counter filed by opposite party No.1 and got marked Exs.B-1 to B-6, in support of their case. In the cross-examination by the applicants, R.W.1 accepted the occurrence of the accident, involvement of vehicle owned by opposite party No.1 and also death of the deceased, who was working as driver. He also accepted that the vehicle involved in the accident was having valid insurance policy under Ex.A-6/ B-3 and the deceased being driver was covered under the said policy. He accepted that the deceased was working for the work of opposite party No.1 and that Mahindra Logistics Limited was 9 MGP,J CMA_890_2016 managing agent of opposite party No.1 and Narayana Auto Works was managing agent of Mahindra Logistics Limited. He denied the liability of opposite party No.1 and also denied that the deceased died during the course and out of his employment with opposite party No.1. He also stated that the vehicle was damaged in the accident and opposite party No.1 claimed damages from opposite party No.2 showing the deceased as its driver. In the cross- examination by opposite party No.2, R.W.1 stated that there was no employee and employer relationship between the deceased and opposite party No.1 and that opposite party No.1 has not engaged the deceased as driver on the vehicle involved in the accident. He also stated that opposite party No.1 is not liable for acts done by Narayana Auto works. He denied that the deceased was not covered under the policy issued by opposite party No.2 and that opposite party No.1 never made any application for settlement of damages and that opposite party No.2 never paid any amount.
18. Opposite party No.2 got examined its Assistant Manager as R.W.2, he reiterated the contents of the counter filed by opposite party No.2 and stated that the insurance policy was issued subject to conditions. He deposed that as per the counter filed by 10 MGP,J CMA_890_2016 opposite party No.1 as on the date of the accident, the deceased was not working under opposite party No.1. He also stated that opposite party No.1 has given sub-contract to Mahindra Logistics Limited and they in turn gave sub-contract to Narayan Auto Works Limited for shifting of new vehicles from opposite party No.1 to various showrooms of opposite party No.1. It is stated that the policy was issued in the name of opposite party No.1, whereas the deceased was working under Narayana Auto Works Limited. Hence, there was no employee and employer relationship between the deceased and opposite party No.1. Therefore, prayed to dismiss the appeal against opposite party No.2. In the cross- examination by the counsel for applicants, R.W.2 admitted that he was deposing as per record and as per record there was an accident and the deceased died in the said accident while driving the vehicle owned by opposite party No.1 bearing No.AP 23 TC
252. He also accepted that the deceased was working as driver on vehicle bearing No.AP 23 TC 252. He admitted that the risk of the driver is covered under the policy issued by opposite party No.2. However, he denied that the deceased was working as a driver on the said vehicle under employment of opposite party No.1. He accepted that even though the deceased was employed through 11 MGP,J CMA_890_2016 Narayan Auto Works, he was working as driver on the vehicle bearing No.AP 23 TC 252, which is owned by opposite party No.1. He also admitted that policy under Ex.A-6/B-7 was taken by opposite party No.2 for the above said vehicle on which the deceased was working as driver.
19. It is pertinent to state that Ex.A-1 First Information Report in Crime No.23 of 2015 along with complaint, Ex.A-2 inquest panchanama, Ex.A-3 postmortem report and Ex.A-4 charge sheet clearly disclose that on 02.03.2015, the deceased was on duty as driver on vehicle bearing No.AP 23 TC 252, which is owned by opposite party No.1 and insured with opposite party No.2 and during the course and out of his employment, the accident occurred and he died in the said accident. The said accident occurred when a lorry bearing No.AP 16 TY 0642 dashed the vehicle driven by the deceased, due to which the deceased sustained injuries and died on the spot. Hence, there is no dispute with regard to occurrence of the accident and death of the deceased.
20. The only dispute in the present case is with regard to employment of the deceased under opposite party No.1. Learned 12 MGP,J CMA_890_2016 counsel for respondent Nos.1 to 3/applicants contended deceased was employed under opposite party No.1 as driver and he used to collect vehicles from opposite party No.1 and drop the same at various showrooms of Mahindra Company Manufactured vehicles belonging to opposite party No.1. While so, on 02.03.2015, the deceased was delivering vehicle bearing No.AP 23 TC 252 and during the course of delivery, one lorry bearing No.AP 16 TY 0642 came in opposite direction at the outskirts of Ranjole village, near Allipur Khana on National Highway 65 and dashed the vehicle of the deceased. Due to the said accident, the deceased sustained injuries and died on the spot.
21. It is the case of opposite party No.1 that it has entered into an agreement for outbound transportation dated 10.07.2014 with Mahindra Logistics Limited, for transportation of vehicles manufactured by opposite party No.1 to various showrooms and the said company in turn entered into agreement with Narayan Auto Works, for hiring drivers and transportation of the vehicles. The deceased was one such driver and opposite party No.1 has not at all hired the deceased to work as driver on vehicle bearing No.AP 23 TC 252. Hence, they are not liable to pay any 13 MGP,J CMA_890_2016 compensation for the death of the deceased. It is also contended that the said vehicle was insured with opposite party No.2 through valid insurance policy as such they are bound to indemnify the liability of opposite party No.1.
22. On the other hand, it is the case of opposite party No.2 that the deceased was not working under opposite party No.2 as on the date of the accident, as such they are not liable to pay compensation for his death. Learned counsel for the appellant/opposite party No.2 contended that the policy was issued to cover the risk of vehicle owned by opposite party No.1, but the deceased was not employee of opposite party No.1 and he was employed under Narayan Auto Works. Hence, opposite party No.2 is not liable to pay compensation.
23. It is pertinent to state that the vehicle bearing No.AP 23 TC 252 was owned by opposite party No.1 and insured with opposite party No.2. It is evident from the record that as on the date of the accident, the deceased was working to transport the vehicles owned by opposite party No.1 and on the date of the accident, he was driving vehicle bearing No.AP 23 TC 252, to deliver the same. The deceased was working in the capacity of driver of the said 14 MGP,J CMA_890_2016 vehicle on the date of the accident. Opposite party No.1 engaged the services of Mahindra Logistics Limited, to transport the vehicle owned by them and Mahindra Logistics Limited, in turn entered into agreement with Narayan Auto Works, for transportation of the vehicles. Hence, it can be clearly said that the deceased was indirectly working for the work of opposite party No.1. The deceased died during the course and out of his employment while delivering the vehicle owned by opposite party No.1, which was insured with opposite party No.2. The evidence of A.W.1 and R.W.1 also clearly establishes about the relationship and connection between opposite party No.1, Mahindra Logistics Limited, Narayan Auto Works and the deceased. It is clear that the Mahindra Logistics Limited and Narayan Auto Works were agents and opposite party No.1 was their principal and all of them were working for transportation of vehicles manufactured and owned by opposite party No.1. Hence, considering all these aspects the Commissioner has rightly held that opposite party No.1 is principal employer of the deceased as such the deceased was employed under opposite party No.1 as he was engaged in driving the vehicle bearing No.AP 23 TC 252 and while discharging his duties, he died in an accident.
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24. Once, the occurrence of the accident, death of the deceased during the course and out of employment and employee and employer relationship are established, the insurance company is liable to indemnify opposite party No.1 and pay compensation to the applicants. There is no dispute with regard to existence of valid policy as on the date of the accident pertaining to the vehicle involved in the accident. It is also admitted that the risk of the driver is covered under the said policy. In the said circumstances, the Commissioner has held that opposite party No.2 being insurer is bound to indemnify the liability of opposite party No.1. Therefore, the Commissioner held that opposite party No.1 being principal employer, owner of the vehicle involved in the accident and opposite party No.2 being insurer are jointly and severally held liable to pay compensation. This Court does not find any reason to interfere into the said findings.
25. Even otherwise, the contention of the opposite party No.2 before this Court is certainly based on question of fact. The Hon'ble Supreme Court in North East Karnataka Road Transport Corporation v. Sujatha 1 held as under:
1 (2019) 11 SCC 514 16 MGP,J CMA_890_2016 "9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.
10. The aforementioned questions are essentially the questions of fact and therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.
11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.
12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."
26. Even in Golla Rajanna v. The Divisional Manager 2 the Hon'ble Supreme Court held under the scheme of the Act that the Workmen's Compensation Commissioner is the last authority on facts. In view of the principle laid down in the above decisions, 2 2017 (2) ALD 14 (SC) 17 MGP,J CMA_890_2016 since the contentions raised by the learned counsel for opposite party No.2/insurance company are based on questions of fact, it is evident that scope of appeal under Section 30 of the Workmen's Compensation Act, 1923, is very limited, thereby the ambit of interfering with the order passed by the Commissioner is also limited until and unless the order passed by the Commissioner is perverse or when there is patent irregularity or illegality committed by the Commissioner while passing the impugned order. Moreover, when two interpretations are possible, the interpretation, which is favourable to the applicants, shall be taken into consideration, since the Workmen's Compensation Act, 1923, is a beneficial legislation enacted to protect the interest of employees. Hence, this Court is of the considered opinion that the contention of the learned counsel for the appellant/opposite party No.2 that there is no employee and employer relationship between the deceased and opposite party No.1 is unsustainable.
27. Coming to the quantum of compensation, the Commissioner as there was no proper evidence with regard to salary of the deceased has considered minimum wages and fixed the wages of the deceased at Rs.6,658.50/- per month. Further, the 18 MGP,J CMA_890_2016 Commissioner based on the driving license of the deceased under Ex.A-7 has determined the age of the deceased as 28 years, while calculating compensation. The Commissioner in all granted an amount of Rs.7,08,012/- along with interest at 12 % per annum from 03.04.2015 till the date of realization. This Court is of the considered opinion that the said amount is just and reasonable and interference of this Court is unwarranted. The appeal is devoid of merits and the same is liable to be dismissed.
28. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order dated 20.07.2016 in W.C.No.46 of 2015 on the file of the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-II (FAC), Hyderabad. There shall be no order as to costs. Miscellaneous applications, if any pending, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 24.01.2024 GVR