United Insurance Company Ltd, vs Thottempudi Rama Devi
2021 Latest Caselaw 3115 AP

           THE HON'BLE Ms JUSTICE J.UMA DEVI

    CIVIL MISCELLANEOUS APPEAL No.2183 of 2002
                       &
     CIVIL MISCELLANEOUS APPEAL No.80 of 2010

COMMON JUDGMENT:

      Since these appeals arise out of the award passed by the

Commissioner    for   Workmen's    Compensation    and    Assistant

Commissioner of Labour, Ongole, Prakasam District in W.C.No.2 of

2001, both are heard together and are being disposed of by passing

the common judgment.

CMA No.2183 of 2002:

      2. In CMA No.2183 of 2002 the appellant is United Insurance

Company Limited with whom the Zeep bearing registration No.AP7T-

8849 is insured. In the later appeal, the appellants are parents of

the deceased by name Thottempudi Koteswararao.        In both the

appeals, it has not been contended by any of the parties that the

Commissioner has committed error in awarding compensation of

Rs.2,07,980/- and thus, the compensation determined is not in

dispute.

      3. Before the Commissioner for Workmen's Compensation

claim for compensation is laid by the wife, daughter and parents of

the deceased raising a contention that the deceased while working

as driver under Guduri Ramamurthy, the owner of the Zeep bearing

registration No.AP7T-8849 (5th respondent herein), his death has

occurred; since the death of the deceased has occurred during

course of employment under Guduri Ramamurthy, the owner of the 2 JUD,J CMAs.2183/2002 & 80/2010

aforementioned Zeep, which is insured with the United Insurance

Company Limited, they are entitled to lay a claim for compensation

as against both.

4. The Commissioner for Workmen's Compensation having

been convinced with the statement made by Smt.Thottempudi

Ramadevi, the wife of the deceased has determined the

compensation at Rs.2,07,980/- restricting the monthly wages of the

deceased at Rs.2,000/- as per Explanation II of Sec.4(1)(b) of

Workmen's Compensation Act. In addition to the amount so

determined, a sum of Rs.416/- towards costs of stamps and a sum

of Rs.200/- towards costs of the application is awarded. Thus, total

compensation of Rs.2,08,596/- is awarded to the claimants in

W.C.No.2 of 2001.

5. The contention raised by the appellant-insurance company

while assailing the award passed by the Commissioner for

Workmen's Compensation is that placing reliance on the solitary

testimony of the wife of the deceased, the Commissioner ought not

to have come to the conclusion that the relationship of employee

and employer is established; its' other contention is that due to

non-filing of driving licence by the applicants, the Commissioner may

have drawn an adverse inference as against them; Instead of

dismissing their claim for compensation, by drawing adverse

inference, the Commissioner has awarded compensation to them

and fastened the joint liability of payment of compensation as

against the insurance company. This is main argument advanced by 3 JUD,J CMAs.2183/2002 & 80/2010

the insurance company while questioning the award under

challenge.

6. The Administration Officer of the Insurance Company is

examined by the appellant's insurance company as OP-2. The

contention of the appellant's insurance company is that the terms

and conditions of the policy of the vehicle are deliberately

violated/breached by the vehicle owner and due to breach of terms

and conditions of the policy by him, insurance company may have

been absolved from the liability of payment of compensation.

7. Here in this case, the deceased was aged about 30 years

by the date of accident as per the evidence given by the wife of the

deceased and he was working as driver under Respondent No.5-

Guduri Ramamurthy since 13 years prior to his death. Notices

issued on respondent No.5, the owner of the Zeep, were the

documents produced by the insurance company to claim that the

deceased had no licence, and that terms of the policy were

contravened by respondent No.5. But this itself is not enough to say

that the deceased had no proper driving licence. It is not in dispute

that death of the deceased took place while he was working as

employee under Respondent No.5 herein. It is born by record that

the deceased was working as driver under Respondent No.5 since

13 years prior to his death. The evidence given in this regard by the

wife of the deceased has not been rebutted.

8. It has been contended by the counsel who appeared for the

parents of the deceased that the defences enshrined under Section 4 JUD,J CMAs.2183/2002 & 80/2010

149 of M.V.Act can be raised in the claim made under Motor

Vehicles Act, but not in the claim laid under Workmen's

Compensation Act, which is a welfare legislation enacted in the

interests of the workmen.

9. Here in this case a contention as regards to breach of

terms and conditions of the policy by the vehicle owner is raised by

the insurance company without production of any evidence as

regards to non-possessing of driving licence by the deceased, and

that raising of such defence is only available under Motor Vehicles

Act but not under Workmen's Compensation Act, which is altogether

a different Act.

10. When a contention is raised by the insurance company

that no driving license was possessed by the deceased and due to

failure of respondent No.5 and the applicants to produce the driving

licence of the deceased, the Commissioner ought not to have made

the insurance company liable to pay compensation along with owner

of the offending vehicle, it is its duty to discharge the burden of

proving such contention. But no evidence is placed before the

Commissioner for Workmen's Compensation to establish that the

deceased had no licence to drive the Zeep and that the relationship

of employee and employer not existed between him and Respondent

No.5. In the absence of any valid evidence as regard to the plea of

defence of wilful and deliberate breach of the terms and conditions

of the policy by respondent No.5, the Commissioner cannot be

faulted in directing the appellant-insurance company to pay 5 JUD,J CMAs.2183/2002 & 80/2010

compensation by fixing joint liability of payment of compensation as

against it. The appeal filed by the insurance company fails for this

reason, and is hereby dismissed accordingly.

CMA No.80 of 2010

11. Coming to the other appeal, which is filed by the parents

of the deceased, questioning the apportionment of compensation

made by the Commissioner for Workmen's Compensation is

concerned, the contention raised by the parents of the deceased,

who are also arrayed as claimants in W.C.No.2 of 2001 that the

widow of the deceased Smt.Thottempudi Ramadevi is not entitled to

get compensation on account of her re-marriage. Their further

contention is that the widow of the deceased after re-marriage

cannot be considered as dependent of the deceased and she is not

the legal representative of the deceased, as defined under Section

2(1)(d)(i) of the Act; but the Commissioner without taking into

consideration of this aspect, has awarded major compensation

amount to her and meagre compensation of Rs.5,000/- for each of

them. As per their contention no enquiry is held by the

Commissioner for Workmen's Compensation and no direction

whatsoever is given to the dependants of the deceased to appear

before him before passing an order for apportionment of

compensation and thus, award passed by the Commissioner is

wholly unjustified.

12. It is noticed on reading the award under challenge that at

the time of passing of award under challenge, the apportionment of 6 JUD,J CMAs.2183/2002 & 80/2010

compensation amount to the applicants is not made and subsequent

to passing of the award, the Commissioner for Workmen's

Compensation appears to have passed an order on 03.09.2002

apportioning the compensation among the applicants. Vide order

dated 03.09.2002, a sum of Rs.94,298/- each is awarded as

compensation to the wife and minor daughter of the deceased,

whereas the parents of the deceased are awarded with

compensation of Rs.5,000/- each. Grievance of appellant in this

case is regarding the order passed by the Commissioner in awarding

compensation of Rs.5,000/- to each of them. Since this appeal is

filed questioning the apportionment of compensation among the

applicants, the insurance company may not have any role and it

does not have any point to contest the case.

13. It is brought to the notice of this court that after filing of

the present miscellaneous appeal, the father of the deceased

expired. The main contention raised by the appellants is that the

wife of the deceased after re-marriage cannot be considered as

dependent of the deceased, therefore, the Commissioner ought not

to have granted compensation of Rs.94,298/- to her.

14. It is not in dispute that even after re-marriage of the wife

of the deceased, the daughter of the deceased remained with her

and she herself had taken care of her and performed her marriage.

Counsel who filed the appeal on behalf of the parents of the

deceased has not disputed this fact.

                                   7                                JUD,J
                                                CMAs.2183/2002 & 80/2010

15. Having regard to the above, and the understanding

reached between mother of the deceased and the other remaining

living dependents, namely, the wife and daughter of the deceased, it

is appropriate to hold that the father and mother of the deceased

will get compensation of Rs.25,000/- each. As the father of the

deceased is no more, whatsoever compensation granted to him can

be received by his wife who is none other than the mother of the

deceased. The Commissioner while passing order of disbursement

of the compensation shall take into consideration the amount, if any,

withdrawn by the claimants and pass appropriate order.

16. In the result, CMA.No.2183 of 2002 is dismissed and

CMA.No.80 of 2010 is disposed of in the manner indicated above.

There is no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed in

consequence.

_______________ J.UMA DEVI,J Date: 19.08.2021 Dsr