Andhra Pradesh High Court - Amravati

The Branch Manager, The National ... vs Smt. Vadamala Rama Subbamma And 3 ... on 27 December, 2021

      THE HON'BLE Dr. JUSTICE K.MANMADHA RAO

     CIVIL MISCELLANEOUS APPEAL No. 222 OF 2008

JUDGMENT:

The present Civil Miscellaneous Appeal, under Section

30 of the Workmen's Compensation Act, 1923 ('the Act', for

brevity), is filed by the appellant-insurance company

aggrieved by the order in W.C.No.9 of 2005, dated 03.09.2007

passed by the Commissioner for Workmen's Compensation

and Assistant Commissioner of Labour, Kadapa.

2. The appellant herein is the opposite party No.II,

respondents 1 to 3 herein are the applicants, and respondent

No.4 herein is opposite party No.I, before the Commissioner.

For sake of convenience, the parties are hereinafter referred

to, as they are arrayed before the Commissioner.

3. The applicants are mother and elder sisters of one

Vadamala Sudhakar (hereinafter referred to, as 'the

deceased'). They filed W.C.No.9 of 2005 before the

Commissioner stating that the deceased was working as the

driver of Maruti Van bearing Registration No.AP04F 8923,

owned by opposite party No.I; that he started by the said van

from Khajipet to Rajampet to drop relatives of the owner in

Rajampet, and after dropping, he, along with three other

passengers known to the deceased, started from Rajampet at

9.00 PM on 19.11.2003 by the said van to Kadapa, and at

about 10.30 PM, when the van reached near Kanamalopalli

village on Kadapa-Rajampet main road, the deceased drove

the van at high speed, lost control over the van and dashed to

an unknown lorry, which was coming from opposite side, and

as a result, the inmates of the van, including the deceased,

received multiple bleeding injuries, and two inmates died

while proceeding to hospital; that the deceased was admitted

in Government Hospital, Kadapa and on 20.11.2003, he was

referred to Government General Hospital, Kurnool, where he

succumbed to the injuries on 21.11.2003. It is further

stated by the applicants that the deceased died in an accident

arising out of and in the course of his employment under

opposite party No.I, and he was aged 22 years and earning

Rs.3,500/- per month, and the subject van was insured with

opposite party No.II, and hence, both the opposite parties are

liable to pay compensation of Rs.4,00,000/-.

4. Opposite party No.I remained ex parte before the

Commissioner. Opposite party No.II filed counter before the

Commissioner denying the averments in the claim petition

and stating that the subject vehicle has to be used for private

purpose only, and if it is used for other purposes, insurer is

not liable for payment of compensation, if any; that the

subject accident occurred due to rash and negligent act of the

deceased, which is clear from the charge sheet filed by police,

and hence, the applicants are not entitled for any

compensation from the insurer; that the applicants failed to

follow the procedure laid down under Section 10-B of the Act

by informing the insurer about the accident and death of the

deceased therein, and hence, the application is not

maintainable; that the owner and insurer of the lorry involved

in the accident are necessary parties and hence, the

application is bad for non-joinder of necessary parties. It is

further stated that the deceased and other 3 inmates of the

vehicle at the time of the accident are not related to one group

or one family and they hailed from different places and

boarded the vehicle at Rajampet, and that passengers were

allowed to travel in the van and thereby the owner violated

the terms and conditions of the insurance policy. It is further

stated that the applicants have to prove that they are the

legal heirs of the deceased and that the deceased was earning

Rs.3,500/- per month as salary, and that the deceased was

earning only Rs.1,500/- per month as salary, and hence, the

compensation claimed is excessive and exorbitant.

5. The Commissioner framed the following issues for

consideration.

1) Whether the deceased was a workman as per the provisions of Workmen's Compensation Act, 1923 and he met with the accident arising out of and in course of his employment, resulting into death ?

2) What was the age of the injured applicant at the time of the accident ?

3) What were the wages paid to the deceased workman at the time of accident ?

4) What is the amount of compensation payable ?

5) Who are liable to pay the compensation ?

6. The Commissioner, on appreciation of the

evidence on record, directed opposite party No.II to deposit

Rs.3,42,515/- as compensation besides stamp duty of

Rs.800/- by means of Demand Drafts drawn in favour of the

Commissioner for Workmen's Compensation and Deputy

Commissioner of Labour, Kurnool, within 30 days from the

date of receipt of the order, and in case of failure to do so, the

insurer was directed to pay interest @ 12% per annum from

the date of realization and also penalty under Section 4A (3)

(b) of the Act.

7. Learned Standing Counsel for the appellant-

Insurance Company submits that the Commissioner erred in

assessing the income of the deceased and compensation

awarded by the Commissioner is on higher side; that the

insurer is not liable for the interest payable on the

compensation awarded, and hence, he prays to allow the

appeal.

8. On the other hand, the learned counsel for the

respondents-applicants submits that the Commissioner has

taken all the relevant factors into consideration and awarded

just and reasonable amount as compensation, and the

submissions made on behalf of the appellant do not merit

consideration, and there is nothing to interfere with the

impugned Order and ultimately prayed to dismiss the appeal.

9. The evidence adduced on behalf of the applicants

clearly demonstrates that the deceased died on 21.11.2003 in

an accident arising out of and in the course of his

employment under opposite party No.I, while he was driving

Maruti Van No.AP04-F 8923, owned by the opposite party

No.I. The evidence of A.W.1, coupled with the recitals in

Exs.A1, A.2, A.4 and A6, substantiates the same. So, the

only dispute is with regard to assessment and quantum of

compensation.

10. Section 4 of the Act reads as under:

"Amount of Compensation:- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:-

(a) Where death results from the injury - an amount equal to fifty percent of the monthly wages of the deceased workman multiplied by the relevant factor, or an amount of eighty thousand rupees, whichever is more.

(b) xxx Explanation I:- For the purposes of Clause (a) and Clause

(b), "relevant factor" in relation to a workman means the factor specified in second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due."

11. The Commissioner had calculated the

compensation payable to the applicants, as mentioned

hereunder:-

1. Monthly wage of the applicant : Rs.3,094/-

      2.   Age of the applicant                :      35 years
      3.   Relevant age factor                 :      221.37
      4.   Compensation                        :

221.37 X 50% of Rs.3,094.50 = Rs.3,42,515/-.

12. As far as the age of the deceased is concerned,

from the evidence of A.W.1, coupled with Ex.A3-driving

license of the deceased, it is clear that the deceased was aged

22 years by the date of his death. The same is based on

record and there is nothing to vary with the same.

13. As far as the monthly wage of the deceased is

concerned, it is the case of the applicants that the deceased

was earning Rs.3,500/- per month as driver, as on the date of

his death, but the same is disputed by the insurance

company. There cannot be any dispute that the earning

capability of the deceased at the relevant point of time is

required to be taken into consideration, to assess the

compensation. The Commissioner rightly took into

consideration the minimum rates of wages payable to a Light

Motor Vehicle Driver, as per G.O.Ms.No.81, dated 29.03.2001,

at Rs.3,094.50 ps (Basic wage Rs.2,370/- + V.D.A. Rs.724.50

ps), and assessed the compensation payable to the deceased,

by applying the relevant factor concerning to the age of the

deceased as per Schedule IV of the Act i.e.221.37, and

awarded compensation of Rs.3,42,515/- as per Section 4 (1)

(a) of the Act.

14. As regards award of interest on the compensation

granted, Section 4A (3) reads thus:

"(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall-

(a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government, by notification in the Official Gazette, on the amount due; and

(b) If, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty percent of such amount by way of penalty."

Having regard to the above provision, the Commissioner

rightly awarded interest @ 12% per annum on the amount

awarded from the date of the accident till realization, if the

awarded amount is not deposited within the stipulated time of

30 days. As per the finding of the Commissioner, the

compensation has to be paid by the insurer. Accordingly, the

insurer is also liable to pay interest. As such, there is no

irregularity in considering Section 4A (3) of the Act awarding

interest. The appellant is not disputing the liability in

awarding compensation and interest on the part of the

respondent by the Commissioner.