Telangana High Court
Bajaj Allianz General Insurance Co. ... vs Sri K.Balaiah And 2 Others on 15 March, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.300 of 2013
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed against order dated 16.08.2012 in W.C.No.171 of 2011 on the file of the Commissioner for Employees' Compensation and Deputy Commissioner of Labour-I, Hyderabad (hereinafter referred to as 'the Commissioner'). The said claim application was filed by the applicants therein seeking compensation for death of one Sri K. Mallesh (hereinafter referred to as 'deceased'), who died in an accident that occurred on 10.12.2007 and the same was partly allowed by the Commissioner awarding compensation of Rs.4,31,765/-. 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 and 2 herein are applicants and respondent No.3 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 are that applicants are parents of the deceased and the deceased was working as driver on auto bearing No.AP 23 U 2803 under the employment of opposite party No.1. On 10.12.2007, while the deceased was on duty as driver on the said auto and proceeding towards Thoopran from Medchal along with passengers, at about 06:45 PM, when the said auto reached near the outskirts of Manhorabad village on National Highway No.7, one lorry bearing No.AAJ 4548 driven by its driver in high speed in rash and negligent manner dashed the auto of the deceased and accident occurred. Due to the said accident, the deceased sustained severe injuries and was shifted to Gandhi Hospital, Secunderabad, where he died, while undergoing the treatment. With regard to accident, a case was registered in Crime No.317 of 2007 under Sections 304-A and 337 of the Indian Penal Code, 1860.
4. It is further case of the applicants that the deceased was aged about 20 years as on the date of the accident and that he was being paid an amount of Rs.4,000/- towards wages. Further, the accident occurred during the course and out of his employment under opposite party No.1. The auto involved in the 3 MGP,J CMA_300_2013 accident was owned by opposite party No.1 and insured with opposite party No.2. Hence, the present claim application is filed seeking compensation of Rs.5,00,000/-.
5. Opposite party No.1 remained ex parte. Opposite party no.2 filed its counter denying the averments of the claim application such as age, wages, manner of the accident, employee and employer relationship of the applicant and opposite party No.1. Further, as the compensation claimed was excess and exorbitant, opposite party No.2 prayed to dismiss the claim application.
6. In support of their case, the applicants got examined applicant No.1 as A.W.1 and got marked Exs.A-1 to A-7. Opposite party No.2 got examined R.W.1 and Exs.B-1 to B-7 were got marked.
7. On the basis of the above pleadings and evidence, the Commissioner framed the following issues:
"1. Whether the deceased died during the course and out of his employment as driver on the auto bearing No.AP 23 U 2803 under employment of the 1st opp. party?
2. If yes, who are liable to pay compensation?4
MGP,J CMA_300_2013
3. Whether there was any violation of policy conditions by the insured?
4. What is the amount of compensation entitled by the dependents of the deceased?"
8. After considering the evidence and documents filed by both sides, the Commissioner awarded an amount of Rs.4,37,765/- towards compensation to the applicants. Aggrieved by the same, the present appeal is filed by opposite party No.2.
9. Heard both sides.
10. The learned counsel for the appellant/opposite party No.2 contended that the deceased was not holding valid driving license at the time of the accident and further, there was no employee and employer relationship between the deceased and opposite party No.1, without considering the said aspects, the Commissioner awarded compensation to the applicants holding both the opposite parties jointly and severally liable. It is also contended that the Commissioner erred in granting compensation without there being any income proof filed by the applicants before the Commissioner.
11. Per contra, the learned counsel for respondent Nos.1 and 2/applicants contended that the Commissioner after considering 5 MGP,J CMA_300_2013 all the aspects has awarded reasonable compensation and interference of this Court is unnecessary. Hence, prayed to dismiss the appeal.
12. Now, the point for determination is as follows:
"Whether opposite party No.2 is liable to pay compensation to the applicants as held by the Commissioner?"
Point:-
13. This Court has perused the entire evidence and documents placed on record by both the parties. Applicant No.1 got examined himself as A.W.1 reiterating the contents of the claim application such as manner of the accident and also death of the deceased. In the cross-examination, A.W.1 accepted that he has not filed any document to prove the age, employment and wages paid to the deceased. He admitted that he has not produced the original driving license of the deceased. He categorically denied all other suggestions put to him.
14. Opposite party No.2 got examined its Assistant Manager- Legal as R.W.1. R.W.1 deposed reiterating the contents of the counter filed by opposite party No.2 and admitted that auto 6 MGP,J CMA_300_2013 involved in the accident was insured under valid insurance policy with opposite party No.2. He also deposed that opposite party No.1 failed to furnish particulars of the accident to opposite party No.2, which is a statutory requirement. Though, opposite party No.2 issued notice to opposite party No.1 to furnish the particulars, opposite party No.1 failed to furnish the same. He also deposed that the Toopran Police also failed to forward all the relevant documents to the opposite party No.2, in spite of addressing a letter to them. In the cross examination, he admitted that the policy was in force as on the date of the accident and risk of driver was covered under the policy.
15. A perusal of Ex.A-1 certified copy of FIR shows that with regard to accident the Toopran police registered Crime No.317 of 2007 under Section 304-A and 337 of the Indian Penal Code, 1860 and after thorough investigation laid charge sheet under Ex.A-2. Ex.A-3 is inquest report, which shows the occurrence of the accident and death of the deceased. Ex.A-4 postmortem examination report shows that the deceased died due to multiple injuries. Ex.A-5 is certified copy of MVI report, which discloses that the accident did not occur due to any mechanical defect. 7
MGP,J CMA_300_2013 Ex.A-6 is photo copy of the insurance policy and Ex.A-7 is photo copy of registration certificate of vehicle owned by opposite party No.1. All these documents clearly show the occurrence of the accident, death of the deceased and involvement of auto owned by opposite party No.1 in the accident, which was insured with opposite party No.2. Therefore, there is no dispute with regard to accident, ownership of the vehicle and also death of the deceased.
16. In the present case, the dispute is with regard to employee and employer relationship between the deceased and opposite party No.1, holding of valid driving license by the deceased and also monthly income of the deceased.
17. It is pertinent to state that opposite party No.1 remained ex parte. In the absence of any documentary evidence, the right person to speak with regard to employee and employer relationship between the deceased and opposite party No.1 is opposite party No.1 himself, but he remained ex parte. On the other hand, the evidence adduced by the applicants under Exs.A- 1 to A-7 show that the deceased was employed under opposite party No.1. When, no evidence is available on record, merely based on the averments made by opposite party No.2, it cannot be 8 MGP,J CMA_300_2013 said that the deceased was not employed with opposite party No.1. Therefore, this Court is of the considered opinion that the applicants have successfully established the employee and employer relationship between the deceased and opposite party No.1 and the contention of the learned counsel for the appellant is unsustainable.
18. Now coming to the quantum of compensation, it is the case of the applicants that the deceased was aged about 20 years. However, in the absence of evidence, the Commissioner taking into consideration the postmortem examination report under Ex.A-4 determined the age of the deceased as 18 years. The said aspect was rightly considered by the Commissioner and interference of this Court is unwarranted.
19. It is the case of the applicants that the deceased was earning an amount of Rs.4,000/- per month. However, as rightly contended by the learned counsel for the appellant, no proof of income was filed by the applicants before the Commissioner. In the said circumstances, the Commissioner has considered the minimum wages prevailing as on the date of accident to determine the compensation. Thus, this Court is of the considered opinion 9 MGP,J CMA_300_2013 that the Commissioner has rightly considered the minimum wages prevailing as on the date of accident to determine the compensation and interference of this Court is unwarranted.
20. Learned counsel for the appellant further contended that the applicants have not produced driving license of the deceased before the Commissioner, as such the deceased was not holding valid driving license as on the date of the accident.
21. Admittedly, the applicants have not produced the driving license of the deceased to show that the deceased was holding valid driving license as on the date of the accident. The said aspect has also been admitted by A.W.1 in the cross-examination. However, he stated that the driving license of the deceased was lost at the time of the accident. In the said circumstances, it is apt to refer to the decision of the High Court for the erstwhile State of Andhra Pradesh in the case of United India Insurance Company Limited v. Sri Mohd. Khaleel Khan 1, wherein it was held as under:
"9. The provisions of Workmen's Compensation Act no where prescribe that if a driver is employed he should possess valid licence as is required in terms of the mandate of Motor Vehicles 1 CMA No.872 of 2005 decided on 14.10.2015 10 MGP,J CMA_300_2013 Act 1939. This view is fortified by the judgment of Hon'ble High court of Karnatka titled Oriental Insurance Co. Ltd. v. Hazira Begum and others reported in MANU/KA/0384/1994, it is profitable to reproduce the para 9 of the judgment herein:
"9. A scan of various decisions of the High court will disclose that where a workman was engaged in the employer's business and who was doing the very thing he was employed to do, then the mere fact that he was not acting strictly by the letter of law will not make the accident any the less 'arising out of and in the course of employment.' It follows, therefore, the owner and insurance company are both liable in such an event.""
22. It is pertinent to note that the claim of the applicants is filed under the provisions of the Employee's Compensation Act, 1923, which do not mandate that if a driver is employed, he should possess valid license as is required in terms of the mandate of the Motor Vehicles Act, 1939. Moreover, the policy conditions regarding driver not holding valid and effective driving license at the time of accident cannot be considered as fundamental breach that had contributed to the cause of the accident to discharge the appellant from the liability.
23. As per the decision of the Apex Court in the case of National Insurance Company Ltd. v. Swaran Singh 2, the insurer had to indemnify the compensation amount payable to the third party and the insurance company may recover the same from the 2 (2004) 3 SCC 297 11 MGP,J CMA_300_2013 insured. In the said decision, the Apex Court considered the doctrine of "pay and recover" and examined the liability of the insurance company in cases of breach of policy condition due to disqualifications of the driver or invalid driving license of the driver and held that in case of third party risks, the insurer has to indemnify the compensation amount to the third party and the insurance company may recover the same from the insured.
24. In view of the above, this Court is of the considered view that the applicants are entitled for compensation for death of the deceased in the accident and opposite party No.2 is liable to pay the same and after payment is entitled to recover the same from opposite party No.1.
25. In the result, the Civil Miscellaneous Appeal is allowed by following the doctrine 'pay and recover', the appellant is directed to pay the compensation amount awarded by the Commissioner to the applicants, in the first instance and thereafter, recover the same from opposite party No.1, who is owner of the vehicle involved in the accident, without initiating any separate 12 MGP,J CMA_300_2013 proceedings. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 15.03.2024 GVR