Telangana High Court
United India Insurance Company Ltd., vs Smt. G.Channamma And Another on 4 March, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.324 of 2014
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed against order dated 11.01.2013 in W.C.No.126 of 2010 on the file of the Commissioner for Employees' Compensation and Deputy Commissioner of Labour-II, Hyderabad (hereinafter referred to as 'the Commissioner'). The said claim application was filed by the applicant therein seeking compensation for death of one Sri G. Balaraju (hereinafter referred to as 'deceased'), who died in an accident that occurred on 09.04.2010 and the same was partly allowed by the Commissioner awarding compensation of Rs.4,44,771/-. 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 No.1 herein is applicant and respondent No.2 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.
2
MGP,J CMA_324_2014
3. The brief facts of the case of the applicant are that she is wife of the deceased. The deceased was working as labourer under the employment of opposite party No.1 and received personal injuries in an accident during the course and out of his employment resulting in his death. According to the applicant, on 09.04.2010, the deceased was on duty as labourer and he was performing his duties at a newly constructing apartments' site of opposite party No.1 at Rangareddy Nagar. While so, when the deceased was getting down from the third floor of the said apartment through stair case in order to remove some part of the crane, accidentally, due to darkness in the night, he slipped and fell down in the pit dug for the lift. As a result, the deceased sustained grievous injuries besides multiple fractures, he also received head injury. Immediately, he was shifted to Ram Hospital, Shapurnagar, for treatment, where the doctors declared him as brought dead. In this regard, a case was registered in Crime No.115 of 2010 on the file of Police Station Balangar.
4. It is further the case of the applicant that the deceased was aged 35 years as on the date of the accident and that he was being paid an amount of Rs.5,500/- per month towards wages and 3 MGP,J CMA_324_2014 Rs.200/- per day towards batha. Further, the accident occurred during the course and out of his employment under opposite party No.1. The deceased was covered under the Workmen's Compensation Policy taken by opposite party No.1 from opposite party No.2 and the said insurance was valid as on the date of the accident. Hence, the present claim application is filed seeking compensation of Rs.7,00,000/-.
5. Opposite party No.1 filed his counter admitting the employee and employer relationship between the deceased and opposite party No.1. Opposite party No.1 admitted the age, wages and death of the deceased in the accident that occurred on 09.04.2010. It is also admitted that the risk of the deceased was covered under the policy obtained by opposite party No.1 from opposite party No.2 and the same was in force as on the date of the accident, as such, if there is any liability opposite party No.2 alone is liable to pay. Therefore, prayed to dismiss case against them.
6. 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 4 MGP,J CMA_324_2014 opposite party No.1. Further, as the compensation claimed was excess and exorbitant, opposite party No.2 prayed to dismiss the claim application.
7. In support of his case, the applicant got examined herself as A.W.1 and got marked Exs.A-1 to A-8. No oral or documentary evidence was adduced by both opposite parties, but Ex.B-1 was got marked.
8. On the basis of the above pleadings and evidence, the Commissioner framed the following issues:
"1. Whether the deceased was an employee within the meaning of the Act and died during the course and out of his employment with opposite party No.1?
2. If yes, who are liable to pay compensation to the applicant? And;
3. What is the amount of compensation entitled by the applicant?"
9. After considering the evidence and documents filed by both sides, the Commissioner awarded an amount of Rs.4,44,771/- towards compensation to the applicant. Aggrieved by the same, the present appeal is filed by opposite party No.2.
10. Heard both sides.
5
MGP,J CMA_324_2014
11. The main contention of the learned counsel for the appellant/opposite party No.2 is that deceased was employed by the contractor and not by opposite party No.1, as such there is no employee and employer relationship between the deceased and opposite party No.1. Without considering the said aspect, the Commissioner erred in awarding compensation to the applicant. It is also contended that the compensation awarded by the Commissioner is excess and exorbitant. Hence, prayed to allow the appeal and set aside the impugned order passed by the Commissioner.
12. Per contra, the learned counsel for respondent No.1/applicant contended that the Commissioner after considering all the aspects has awarded reasonable compensation and interference of this Court is unnecessary. It is further contended that the present appeal is not maintainable as the appellant/opposite party No.2 failed to deposit the amount of compensation granted by the Commissioner, which is mandate to file an appeal under the provisions of the Workmen's Compensation Act, 1923. Hence, prayed to dismiss the appeal. 6
MGP,J CMA_324_2014
13. Now, the point for determination is as follows:
"Whether the applicant is entitled for the compensation as granted by the Commissioner?"
Point:-
14. This Court has perused the entire evidence and documents placed on record by both the parties. The applicant got examined herself as A.W.1 reiterating the contents of the claim application such as manner of the accident and also death of the deceased. In support of her case, she got marked Exs.A-1 to A-8. In the cross-examination, she accepted that she has not filed employment certificate of the deceased to prove his employment. She stated that her brother Garammi Chennaiah worked as supervisor with opposite party No.1 and he used to take the works on contract basis from opposite party No.1 and engage the labour and execute them. She denied that the deceased worked under said Garammi Chennaiah.
15. A perusal of Ex.A-1 shows that a case has been registered in Crime No.115 of 2010 on the file of Police Station Balanagar and after thorough investigation final result under Ex.A-6 was filed. Ex.A-2 is copy of complaint, Ex.A-3 is copy of spot panchanama, 7 MGP,J CMA_324_2014 Ex.A-4 is copy of inquest report, Ex.A-5 is copy of postmortem report and Ex.A-6 is copy of death certificate of deceased. All these documents clearly disclose occurrence of the accident, occupation and employment of the deceased and also death of the deceased. Ex.A-8/B-1 is copy of insurance policy, which clearly discloses that the risk of the deceased is covered under the said policy and the same was in force as on the date of the accident. Opposite party No.2, except mere contention that there is no employee and employer relationship between the deceased and opposite party No.1 and that the deceased was employed under a contractor has not adduced any cogent and convincing evidence to prove that the deceased was not employed under opposite party No.1. On the other hand, the applicant relied upon Exs.A-1 to A-8 to prove the case set up by her. Considering the said aspects, the Commissioner has rightly arrived at the conclusion that the deceased was employed under opposite party No.1 and interference of this Court is unwarranted.
16. It is pertinent to state that the Commissioner relied upon Ex.A-5 postmortem examination report and rightly considered the age of the deceased as 35 years as on the date of accident for the 8 MGP,J CMA_324_2014 purpose of calculating compensation. Furthermore, as no evidence is produced by applicant with regard to wages paid to the deceased by opposite party No.1, the Commissioner considered minimum wages and has rightly awarded compensation, which 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.
17. Learned counsel for respondent No.1/applicant also contended that the present appeal is not maintainable as the appellant/opposite party No.2 failed to deposit the amount of compensation granted by the Commissioner, which is mandate to file an appeal under the provisions of the Workmen's Compensation Act, 1923.
18. It is pertinent to state that as rightly contended by the learned counsel for respondent No.1/applicant under the provisions of the Workmen's Compensation Act, 1923, an appeal to the order passed by the Commissioner lies to High Court and it is mandate to deposit the compensation granted by the Commissioner by the appellant before filing the appeal and also file a memo to that effect, failing which appeal is not maintainable. 9
MGP,J CMA_324_2014 It is stated that in the present case, the appellant/opposite party No.2 did not deposit amount of compensation granted by the Commissioner before filing the appeal and the same was subsequently, deposited after filing of recovery petition and after receiving notice. Under these circumstances also, the appeal is not maintainable and the same is liable to be dismissed.
19. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order dated 11.01.2013 in W.C.No.126 of 2010 on the file of the Commissioner for Employees' Compensation and Deputy Commissioner of Labour-II, Hyderabad. There shall be no order as to costs. Miscellaneous applications, if any pending, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 04.03.2024 GVR