Telangana High Court
Hdfc Ergo General Insurance Co.Ltd., vs Smt.Halima Begum on 21 June, 2024
HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.131 of 2016
JUDGMENT:
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1. Aggrieved by the order dated 08.12.2015 passed in W.C.No.124 of 2014, on the file of the learned Commissioner for Employee's Compensation and Assistant Commissioner of Labour- IV, Hyderabad (for short, 'the Commissioner'), the opposite party No.2/Insurance Company filed the present Appeal seeking to allow the appeal by setting aside the order of the learned Commissioner.
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 applicants, who are the wife and father of the deceased-Sri Mohd.Khasim filed a claim application under the provisions of Workmen's Compensation Act, 1923 (for short, 'the Act') claiming compensation of Rs.5,00,000/- along with costs for the death of the deceased in an accident that occurred on 21.05.2012. It is stated by the applicants that the deceased used to work as 'Driver' under the employment of opposite party No.1 on his TATA Ace Auto Bearing No.AP-29V-3510 and died due to the injuries sustained in an accident that occurred on 21.05.2012. As stated by the applicants, on 21.05.2012, the deceased was on duty as a Driver on the subject TATA Ace Auto 2 MGP,J CMA.No.131 of 2016 along with one Sri I.Nageswara Rao,who is labourer on the vehicle of Gona Creamline Ice-Cream Factory and proceeded from Medchal to go to IDA Uppal and when the said vehicle passed through Alugaddabavi bridge near S & T Workshop, the deceased dashed the said vehicle against one unknown stationed lorry which resulted in an accident. In the said accident, the deceased sustained serious injuries and was stuck in the Auto and Police came and removed the deceased and sent to Gandhi Hospital, Secunderabad for treatment and on the same day, at about 6.15AM, the deceased died while undergoing treatment. Police of Lalaguda Police Station registered a case in Crime No.60 of 2012 under Section 337 and 304A IPC. The applicants stated that the deceased was aged about 26 years and was being paid wages of Rs.6,000/- per month by opposite party No.1 and they were totally dependent on the earnings of the deceased and due to his death, they are finding very difficult to eke out their livelihood and hence, filed claim application seeking compensation of Rs.5,00,000/- payable by both the opposite party Nos.1 & 2 as the deceased died during the course of his employment under opposite party No.1 as a driver on the said TATA Ace Auto which was insured with opposite party No.2.
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4. Opposite party No.1, who is the owner of the subject TATA Ace Auto, filed his counter admitting the employment of the deceased as a Driver on the said Auto including, occurrence and narration of the accident, death of the deceased due to the injuries sustained to him in the accident, wages paid to him and contended that as the subject Auto was insured with opposite party No.2 vide policy bearing No.231520022754740000 for the period from 15.03.2012 to 14.03.2013 and the said policy was subsisting as on the date of accident, hence, opposite party No.2/Insurance company alone is liable to pay compensation to the applicants and prayed to dismiss the claim against it.
5. Opposite party No.2/Insurance Company filed its counter denying the averments made in the claim application including, age, wages paid to the deceased, employment of the deceased as Driver on the subject TATA Ace Auto, occurrence and narration of the incident, employee-employer relationship, deceased having valid driving license at the time of alleged accident, subject Auto was roadworthy to ply. It also contended that opposite party No.1 did not inform about the accident which is the preliminary obligation to perform by it and also contended that the amount of compensation is excess and exorbitant and hence, prayed to dismiss the claim against it.
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6. Based on the above pleadings, the learned Commissioner had framed the following issues:-
(i) Whether the deceased died due to the injuries sustained in the accident on 21.05.2012 during the course and out of his employment as a driver on the TATA Ace Auto Bearing No.AP-29V-3510 under the employment of the 1st opposite party?
(ii) If yes, who are liable to pay compensation to the dependants of the deceased? And;
(iii) What is the amount of compensation entitled by the dependants of the deceased?
7. Before the Commissioner, the applicant No.2, who is the father of the deceased, was examined as AW1.
8. On behalf of opposite party No.1, none of the witnesses were examined.
9. On behalf of opposite party No.2, RW1, who is working as Senior Manager in their Insurance company, was examined and got marked Exs.B1 to B4. Upon receipt of summons issued by opposite party No.2, opposite party No.1 was examined as RW2 and through him, Exs.X1 and X2 were marked.
10. The learned Commissioner, after considering the evidence and documents available on record and by applying the minimum rates of wages which are applicable for a light vehicle driver as per 5 MGP,J CMA.No.131 of 2016 G.O.Ms.No.83 LET & F (Lab-II) Department, dated 22.11.2006 w.e.f. 04.12.2006, had awarded compensation of Rs.5,88,287/- along with interest payable by both opposite party Nos.1 & 2 jointly and severally within a period of thirty (30) days from the date of receipt of order.
11. Aggrieved by the said order, opposite party No.2/Insurance Company filed the present Appeal seeking to set-aside the same.
12. Heard the submission of the learned Standing counsel for Appellant/Insurance Company as well as learned counsel appearing for the respondents.
13. The main contention raised by the learned counsel for appellant /Insurance Company is that as the driver of the vehicle involved in the accident do not possess any driving license, the Insurance Company is not liable to pay any compensation to the applicants and that the learned Commissioner had not properly considered the evidence of RWs 1 & 2 and documents marked under Exs.B1 & B4 and hence prayed to allow the appeal by setting aside the order of the learned Commissioner.
14. Per contra, learned counsel for respondents stated that the learned Commissioner, after considering all the aspects, had 6 MGP,J CMA.No.131 of 2016 awarded reasonable compensation for which interference of this Court is unwarranted.
15. Now the point that emerges for consideration is, Whether the order passed by the learned Commissioner requires interference of this Court?
POINT:
16. This Court has perused the entire evidence and documents filed. The applicant No.2, who is the father of the deceased, was examined as AW1 and filed chief affidavit in lieu of his chief examination. He reiterated the contents as to what is stated in the claim application and deposed that on 21.05.2012 at 1.45 AM in the night , his son along with one Mr.I.Nageswara Rao, who is Labourer on the vehicle of Gona Creamline Ice-cream factory started from Medchal to go to IDA Uppal and when the vehicle passed through Alugaddabavi bridge near S& T Workshop, his son drove the said vehicle in a rash and negligent manner and dashed to a parked unknown lorry, due to which he sustained serious injuries and was struck in the auto. Therefore, police came and had taken out the body of his son and sent him in 108 Ambulance to Gandhi Hospital, Secunderabad for treatment and while undergoing treatment, his son died on the same day at 6.15AM. He further stated that the driving license of his son was lost in the said accident. In support of his evidence, he got marked Exs.A1 to 7 MGP,J CMA.No.131 of 2016 A4 on his behalf. Ex.A1 is the FIR in Crime No.60 of 2012 registered by Police of Lalaguda Police Station, Hyderabad based on a complaint given by Sri I.Nageswara Rao, who traveled along with the deceased on the subject Auto on the date of incident. The contents of the FIR states that " As per the statement of one I Nageswara Rao, who is the complainant and whois working as a Labour in Gona Cream lines Ice Cream Factory at Uppal, on 20/21.05.2012 at 1.45 hours, he , along with the company driver- Anwar left from Medchal to IDA Uppal towards Alugaddabavi by TATA Ace bearing No.AP-29V-3510 and at about 3.00 hours, while they were passing Alugaddabavi bridge, near S&T workshop, the driver of TATA Ace drove the vehicle in a rash and negligent manner and dashed to an unknown parked lorry, due to which he received minor injuries and the driver received severe injuries and felt unconscious. Immediately, the Police personnel came to the spot and shifted them to Gandhi Hospital for treatment. Hence the FIR." Ex.A2 is the inquest panchanama wherein, the opinion expressed by the Panchayatdars is that the deceased while working as Driver on TATA Ace Auto on 20/21.05.2012 at about 3.00 hours dashed a lorry which is stationed at S & T Workshop. In the said accident, he sustained injuries on forehead, left hand, right leg and due to severe bleeding caused due to the above injuries, he died. Ex.A3 is the post mortem examination report wherein the injuries sustained 8 MGP,J CMA.No.131 of 2016 by the deceased are, (i) Laceration of 5x3xcm musclwe deep present on right side forehead; (ii) Closed freactur eof middle of left memory present; (iii) rupture liver present. Bladder contusion present and (iv) left kidney ruptured and the opinion expressed for cause of death is due to blunt injury abdomen. Ex.A4 is the Final report filed by Police of Lalaguda Police Station wherein the investigation done and the evidence collected would establish that the deceased was the driver of TATA Acer bearing No.AP-29V-3510 and he drove the same in a rash and negligent manner with high speed and gave dash to a stationed lorry at S& T Workshop, Mettuguda Secunderabad and sustained bleeding injuries on the abdomen and other parts of the body and while undergoing treatment in the Gandhi Hospital, he died on the same day i.e., on 21.05.2012 at 6.15 hours. There is no foul play for the cause of death of the deceased. It is also stated in the final report that the deceased was accompanied by the complainant who also sustained minor injuries.
17. In the cross-examination by opposite party No.2, he accepted that there is no documentary proof regarding age, wage and employment of the deceased under opposite party No.1. He denied that the deceased was not having driving license and also 9 MGP,J CMA.No.131 of 2016 denied the suggestion that the opposite party No.2 is not liable to pay compensation.
18. On behalf of Opposite party No.2, RW1, who is working as Senior Manager in their Insurance Company was examined. He stated that the vehicle TATA Ace Auto bearing No.AP-29V-3510 had valid insurance for the period from 15.03.2012 to 14.03.2013, which is subsisting as on the date of accident. He also stated that the deceased was not having a valid and effective driving license to drive the TATA Ace Auto bearing No.AP-29V-3510 and that opposite party No.1 had willfully and knowingly handed over the possession of vehicle to the deceased who had no driving license and thereby contravened the provisions of the Motor Vehicles Act and Rules thereunder and hence, Opposite party No.2/Insurance Company is not liable to pay any compensation. In support of his evidence, he got marked Exs.B1 to B4 on their behalf. Ex.B1 is the copy of insurance policy. Exs.B2 & B3 are the reminder letters issued to opposite party No.1/Ms.Gonna Creamlines requesting them to provide certain documents viz., driving license of the driver of the vehicle, fitness certificate and claim form. Ex.B4 is the final letter issued to opposite party No.1.
19. During his cross-examination, he accepted that the vehicle TATA Ace was having valid insurance as on the date of accident. 10
MGP,J CMA.No.131 of 2016 He said that he do not know whether the driving license of the deceased was misplaced at the time of accident. He accepted that the Insurance company had not filed acknowledgments of Exs.B2 to B4 letters issued to opposite party No.1.
20. On receipt of summons from 2nd opposite party, opposite party No.1 was present and was examined as RW2. In his evidence, he deposed that the deceased worked as driver under him for a period of six years prior to his death. He admitted that he had not filed any documentary proof with regard to employment of the deceased and he had not kept a copy of driving license of the deceased in his office record. He denied the suggestion that the deceased was not his employee and he had no driving license. He also denied the suggestion that he had not intimated to Food Safety Department regarding his workforce. In support of his evidence, he got marked Exs.X1 & X2 respectively. Ex.X1 is the Aadhar card of opposite party No.1 and Ex.X2 is the copy of license issued by the Food Safety Department.
21. A perusal of the documents discussed under Exs.A1 to A4, shows that the deceased worked as Driver under the employment of Opposite party No.1 on his TATA Ace Auto bearing No.AP-29V- 3510 and on 21.05.2012, he met with an accident while discharging his duties as a driver on the said vehicle. Further, 11 MGP,J CMA.No.131 of 2016 opposite party No.1, who was examined as RW2, admitted the employment of the deceased as a driver on his vehicle. Therefore, it can be held that the deceased was a workman within the meaning of the Act and died during the course of his employment. Admittedly, the subject TATA Ace vehicle was insured with opposite party No.2 covering the risk of the deceased and the policy was subsisting as on the date of accident which fact was admitted by RW1 during the course of his evidence. Hence, opposite party No.2 is bound to indemnify opposite party No.1 for payment of compensation.
22. The only dispute that has to be answered is that though the deceased do not possess any driving license to drive the vehicle, the opposite party No.1, having knowledge of the same, handed over the insured vehicle to the deceased thereby violating the terms and conditions of the policy. As such, opposite party No.2 is not liable to pay any compensation to the applicants.
23. In this regard, it is pertinent to state that a perusal of Exs.B2 to B4 shows that the Insurance Company inspite of making bonafide efforts in issuing reminder letters which are dated 03.07.2012, 16.07.2012 and 26.07.2012 to opposite party No.1 asking him to submit necessary documents, which includes driving license of the deceased, for processing the claim application, the 12 MGP,J CMA.No.131 of 2016 opposite party No.1, who is the owner of the TATA Ace vehicle failed to give any reply nor submitted the same. Hence, from the above, it is made clear that opposite party No.1, having knowledge that the deceased do not possess any driving license, willfully handed over the subject TATA Ace vehicle to him and had violated the terms and conditions of the Insurance policy.
24. In this regard, it is pertinent to refer the decision of the Hon'ble Supreme Court in the case between S. Iyyapan v/s M/s United India Insurance Company and Another 1 wherein, the Hon'ble Supreme Court held that the Insurance Company is liable to pay the victim even if the driver was unlicensed so that the victim should not be deprived of the money due to him. The Insurance Company has full rights to recover their money from the owner of the vehicle. Further, the owner can make the unlicensed driver to pay the compensation.
25. From the above decision, it is clear that the Insurance Company cannot be exonerated from its liability to pay the compensation amount. It shall pay the compensation at first and then recover the same from the owner, who in turn can add the unlicensed driver to pay the compensation.
1 (2013) 7 SCC 62 13 MGP,J CMA.No.131 of 2016
26. Hence, this Court is inclined to interfere with the finding of the learned Commissioner and would apply pay and recover policy so far as fixing of liability upon Insurance Company is concerned. The Insurance Company shall pay the compensation at first instance and shall recover the same from the owner, who in turn can add the unlicensed driver to pay the compensation. Except the above finding, the findings awarded by the learned Commissioner in respect of other aspects shall remain the same.
27. With the above observation, the Civil Miscellaneous Appeal is partly allowed. The order passed by the learned Commissioner is modified to the extent indicated above.
28. Miscellaneous petitions pending, if any, shall stand closed.
_____________________________ JUSTICE M.G.PRIYADARSINI Dt.21.06.2024 ysk