Andhra Pradesh High Court - Amravati
The National Insurance Company ... vs Kumbha Sivamma 5 Ors on 1 February, 2021
Bench: M.Venkata Ramana
MVR,J
C.M.A.No.1480 of 2008
1
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
C.M.A.No.1480 of 2008
Between:
The National Insurance Company Limited
Branch Office, Achreddy Complex, Arundelpet,
Narasaraopet, Guntur
... APPELLANT
AND
Kumbha Sivamma, S/o.late Yesaiah and five others
... RESPONDENTS
DATE OF JUDGMENT PRONOUNCED :01.02.2021
SUBMITTED FOR APPROVAL
HONOURABLE SRI JUSTICE M. VENKATA RAMANA
1. Whether Reporters of Local Newspapers
may be allowed to see the order? Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to see the
fair copy of the order? Yes/No
____________________
M.VENKATA RAMANA, J
MVR,J
C.M.A.No.1480 of 2008
2
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
*HONOURABLE SRI JUSTICE M. VENKATA RAMANA
+ C.M.A.No.1480 of 2008
% Dated : 01.02.2021
Between:
# The National Insurance Company Limited
Branch Office, Achreddy Complex, Arundelpet,
Narasaraopet, Guntur
... APPELLANT
AND
$ Kumbha Sivamma S/o late Yesaiah and five others
... RESPONDENTS
! Counsel for appellant : Mr. Naresh Byrapaneni
^Counsel for Respondents : Mr.G.V.S.Meher Kumar
<GIST :
>HEAD NOTE:
? Cases referred: NIL
____________________
M.VENKATA RAMANA, J
MVR,J
C.M.A.No.1480 of 2008
3
HON'BLE SRI JUSTICE M. VENKATA RAMANA
C.M.A.No.1480 OF 2008
ORDER:
This Civil Miscellaneous Appeal is directed against the order in
W.C.Case No.51 of 2004 dated 04.04.2006 of the Commissioner for
Workmen Compensation-cum-Assistant Commissioner of Labour, Circle I,
Guntur.
2. The third respondent before the Commissioner for Workmen
Compensation (Commissioner for 'short') is the appellant. The
respondents 1 to 4 were the applicants and the respondents 5 and 6
were the respondents 1 and 2 respectively before the Commissioner.
3. The respondents 1 to 4 filed an application before the
Commissioner claiming a compensation of Rs.3,00,000/- against the
respondents 1 and 6 and the appellant payable with interest at 18% per
annum from date of death of the deceased till realization and for costs.
This claim was filed on account of death of one Sri Kumbha Yesaiah. He
is the husband of the first respondent, father of the second respondent
and son of the respondents 3 and 4.
4. The contention of the respondents 1 to 4 before the Commissioner
was that Sri Yesaiah was a labourer working for the fifth respondent,
who was then the owner of tractor-trailer AP 7 G 6456/6457 and that it
was insured with the appellant. Their case was also that on 14.09.2002
at about 6.00 a.m. Sri Yesaiah along with others went on the above
tractor as coolies to load the earth from the quarry near Christian Burial
Ground, at Phirangipuram and to unload in the lands of the fifth
respondent. While they were working in the above quarry digging the
earth and loading the same into the trailer, a big boulder, which got
disturbed on account of digging, rolled down and fell on the back of Sri
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C.M.A.No.1480 of 2008
Yesaiah causing several injuries resulting in his instantaneous death,
according to the applicants. Crime No.69 of 2002 was registered in
Phirangipuram Police Station on the complaint given in respect of this
incident. Thus, the applicants/respondents 1 to 4 claimed before the
Commissioner that the death of Sri Yesaiah was during and in the course
of employment for the fifth respondent.
5. The respondents 1 to 4 further contended before the
Commissioner that Sri Yesaiah was 30 years old by the date of incident,
earning Rs.3000/- per month towards wages apart from batta, which he
was spending for the benefit of entire family. On account of his
untimely death, according to them, they lost support. They further
contended that inspite of demands, since no compensation was paid by
the respondents 5, 6 and the appellant, they laid the claim for
compensation before the Commissioner.
6. The respondents 5 and 6 did not choose to contest this claim
before the Commissioner. It is only the appellant that resisted their
claim filing a counter denying the nature of the accident. It also denied
that the deceased was working for the fifth respondent as a labourer on
the tractor, while also denying that it was insured with it. It further
contended that there is no relationship of employer and employee
between the deceased and the sixth respondent and it did not receive
any intimation about transfer of vehicle from the sixth respondent.
Thus, it claimed that it is not liable to satisfy the claim. It also
contended that the policy issued to the sixth respondent did not cover
the risk in respect of labourers.
7. On the material, the Commissioner settled the following issues for
the purpose of enquiry:
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C.M.A.No.1480 of 2008
"1. Whether the deceased was a workman as per the provisions of
the Act and he died due to personal injuries he received in an
accident arising out of and in the course of his employment?
2. Amount of compensation payable? And
3. Who are liable to pay the compensation?"
8. Before the Commissioner, on behalf of the respondents 1 to 4, the
first respondent examined himself as A.W.1 while relying on Ex.A1 to
Ex.A4. On behalf of the appellant, R.W.1 an assistant in its office was
examined while relying on Ex.B1 to Ex.B3. Upon consideration of the
material, the Commissioner held that the deceased Sri Yesaiah was a
workman as per Workmen Compensation Act and suffered multiple
injuries. Basing on the age and the income of the deceased, applying of
appropriate factor, since Ex.B1 insurance policy covered the risk relating
to the labourers, a compensation of Rs.2,08,709/- was awarded in favour
of respondents 1 to 4.
9. It is against this order, this civil miscellaneous appeal is preferred
by the insurer.
10. Sri Naresh Byrapaneni, learned counsel for the appellant and Sri
G.V.S.Meher Kumar, learned counsel for the respondents 1 to 4
addressed arguments. Respondents 5 and 6 though served notices, did
not choose to contest this matter.
11. Now, the following points arise for determination:
1. Whether there existed a relationship between the
deceased Sri Yesaiah and the respondent No.5 as servant
and master and if, this relationship binds respondent
No.6?
2. Whether the appellant is liable to indemnify under Ex.B1
policy of insurance, the owner of tractor-trailer?
3. To what relief?
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C.M.A.No.1480 of 2008
12. POINT No.1: The nature of the accident is clearly set out in the
application for this claim by respondents 1 to 4. The first respondent in
her deposition came out with the same version. Cross-examination of
the first respondent on behalf of the appellant did not bring out any
material to reject her testimony.
13. The version of respondents 1 to 4 in respect of this accident finds
support from Ex.A1 copy of FIR. A complaint was given by Panchayat
Secretary of Phirangipuram Gram Panchayat in respect of this incident,
when Sri Yesaiah died on account of fall of a huge boulder on his person
when he was excavating earth along with others near quarry behind the
Christian Cemetery at Phirangipuram on 14.09.2002. Crime No.69 of
2002 was registered under Section 174 Cr.P.C. thereupon in
Phirangipuram Police Station.
14. Ex.A2 is a photocopy of inquest report relating to Sri Yesaiah and
other labourers, who were with him when excavating earth at the place
of the accident, were examined during inquest. They are Sri Dasari
Koteswara Rao, Smt.Uyyala Parvathi, Sri K.Shankar and Sri T.Srinivasa
Rao. In column.No.15 of this inquest report it is specifically recorded
that Sri Yesaiah along with other labourers, referred to above, went by
tractor AP 7G 6456/6457 to the quarry behind the Christian Cemetery at
Phirangipuram, at about 6.00 a.m. on 14.09.2002 and when they were
all digging earth, a huge boulder rolled down on account of loosening of
earth. At that time, as per contents of this inquest report, while other
labourers could manage to escape, when Sri Yesaiah was about to climb
up, he slipped down and this boulder fell on his back causing serious
injuries, leading to his instantaneous death. Death of Sri Yesaiah due to
multiple injuries is also confirmed by Ex.A3 a photocopy of Post-mortem
report.
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C.M.A.No.1480 of 2008
15. Thus, the manner by which Sri Yesaiah suffered this accident
unfortunately is clearly stated in Ex.A3 inquest report and it is
supporting the version of A.W.1.
16. Contra to it, there is no evidence from respondents 5 and 6 or
from the appellant. Lone witness examined on behalf of the appellants
cannot displace her testimony, who did not have personal knowledge of
this accident. Thus, the manner of accident is established clearly. It is
further proving that Sri Yesaiah along with the labourers referred to
above, then worked for Sri Shaik Musthafa (respondent No.5) on the
tractor AP 7G 6456/6457. Thus, it established the relationship between
Sri Musthafa - the fifth respondent and Sri Yesaiah, as master and
servant respectively at the time of the accident. Mere denial on the
part of the appellant of this relationship in view of the material on
record, cannot stand.
17. A.W.1 stated in her cross-examination that she did not produce
any record to prove that Sri Yesaiah was working on this tractor as a
labourer and regarding employment of her husband likewise. This
statement cannot in any manner diminish the value of the material on
record, referred to above.
18. Thus, this point is answered in favour of respondents 1 to 4 and
against the appellant.
19. POINT No.2: Basing on the material, the Commissioner
considering the wages in terms of Minimum Wages Act and age of Sri
Yesaiah at 30 years, applying G.O.Ms.No.30 dated 27.07.2000 along with
variable DA, treated his income at Rs.2,003/-( Rs.1437 being basic wage
+ Rs.566 VDA) and applying the relevant factor computed the
compensation at Rs.2,08,292/-.
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C.M.A.No.1480 of 2008
20. A further direction was given by the Commissioner in the
impugned order making respondents 5, 6 and appellant liable jointly and
severally.
21. Liability of the appellant was arrived at considering subsistence of
Ex.B1 policy in respect of this tractor-trailer. Thus, it was held that the
appellant is bound to indemnify the owner of the vehicle thereunder.
22. Sri Naresh Byrapaneni, learned counsel for the appellant
strenuously contended that there is no proof that Sri Yesaiah was a
labourer employed for the purpose of this tractor-trailer. Learned
counsel further contended that since Ex.B1 is only Act Policy as is
deposed by A.W.2 representing the insurer, since there is no further
contract covering the risk of the labourers employed on this vehicle, the
findings so recorded by the Commissioner are not correct. Learned
counsel further contended that in terms of or Rule 252 of A.P.Motor
Vehicles Rules, having regard to nature of this vehicle, no passengers
can be permitted to travel using it and even if the case of the
respondents 1 to 4 is considered, Sri Yesaiah remained only as an unpaid
or gratuitous passenger on this vehicle. Therefore, in the above
circumstances, in as much as the deceased cannot be deemed an
employee in terms of the definition of a workman in Section 2(n), it is
not correct to invoke provisions of Workmen Compensation Act to make
a claim.
23. Casual nature of employment of Sri Yesaiah is apparently the basis
for this contention. In terms of Section 2(1)(n) of Workmen
Compensation Act, a workman whose nature of employment is casual, is
not excluded as such. The predominant factor to consider in this
context is the purpose for which he is employed at the time of the
alleged incident and that it is for the employer's trade or business. It
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C.M.A.No.1480 of 2008
should also be noted that a workman for the purpose under this Act is
also covered by Schedule II, where different types of services or
employment are described.
24. In the factual backdrop in this case when the inquest report,
which was recorded by the investigating agency clearly stated that Sri
Yesaiah along with other labourers employed on the tractor-trailer in
question, was excavating the earth for the purpose of unloading or to
dump in the agricultural field of the owner of this tractor, viz., the fifth
respondent, as the labourers employed on this tractor, every trait of a
workman in terms of Section 2(1)(n) is established. The position of Sri
Yesaiah therefore, did not get excluded from the purview of application
of Workmen Compensation Act.
25. Ex.B1 insurance policy reflected a contract of insurance between
the 6th respondent and the appellant. However, subject matter of this
contract is the tractor-trailer in question. Hence, this contract goes
with the vehicle, apart from the persons or parties to the contract.
When once this vehicle is transferred to another, the insurance policy of
the contract thereunder remains valid with reference to the vehicle and
thus, any action taken against the owner of this vehicle, whether the
insurance policy stood transferred in his name or otherwise, this
contract of insurance indemnifies him. Therefore, in that context, the
contention of Sri Naresh Byrapaneni, learned counsel that the privity of
contract remained between the appellant-insurer and the 6th respondent
only, cannot be a reason to disassociate liability of the appellant in this
regard.
26. It appears that this tractor-trailer was sold by respondent No.6 to
respondent No.5. There is deficiency to refer to this fact from the
material on record. Only indication of this transfer is the manner of
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C.M.A.No.1480 of 2008
description of the respondents 5 and 6 in the application before the
Commissioner and the manner by which both of them were treated
during the enquiry. It is supported by a reference in the counter of the
appellant in respect of transfer of this vehicle from the sixth
respondent, since it is contended that it did not receive any intimation
of this transfer of the vehicle. It is to be noted that the respondents 5
and 6 did not choose to contest this matter before the Commissioner or
in this appeal and thus they remained silent in respect of the claim of
respondents 1 to 4.
27. When once it is established that the accident occurred on account
of employment and during as well as in the course of the same, for the
fifth respondent, in which Sri Yesaiah was affected fatally, the
transferee of this vehicle also stands to same liability as of the
registered owner of this vehicle or in whose favour the policy of
insurance stands. Merely because, the insurer is not intimated of this
transfer of the vehicle, it cannot be stated that the insurer gets
exonerated from its liability nor it can avoid its liability on such score.
The contract of insurance is specifically with reference to the tractor-
trailer in question. The policy subsisting in the name of sixth respondent
under Ex.B1 also enures to the benefit of the fifth respondent being the
owner of this vehicle.
28. A transfer of the vehicle without intimating the insurer or getting
the policy transferred in favour of the transferee by itself is not a reason
to clothe or shield the insurer from any action and in enforcing its
liability. A contract of fidelity cannot get an insulation of this nature.
29. As seen from Ex.B1 policy, there is clear indication that
employees working for the owner (insured) were covered by it. In the
sense, risk relating to employees working on the vehicle was covered on
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C.M.A.No.1480 of 2008
account of payment of an extra premium of Rs.15/-. It was the basis for
the Commissioner to make the appellant liable. In his examination in-
chief, A.W.1 did not explain about this instance and why an extra
premium as against employee was collected under Ex.B1. However, in
cross-examination, he admitted collection of such extra premium. When
the burden is on the insurer to establish that it is not liable to answer a
claim, in the circumstances when Ex.B1 is offering positive material to
support the version of the respondents 1 to 4, the contentions advanced
on behalf of the appellant-insurer cannot stand.
30. Sri G.V.S.Meher Kumar, learned counsel for respondents 1 to 4
brought to the notice of this Court all the above factors contending that
liability of the appellant stands and that it has no defence to claim
exemption. This contention of Sri Meher Kumar, has to be accepted.
31. Therefore, it has to be held that the appellant - insurer is liable
along with respondents 5 and 6 to satisfy the claim of respondents 1 to 4
to the extent awarded by the Commissioner.
32. Contentions are not advanced with reference to quantum of
compensation awarded on behalf of both the parties. Even otherwise it
is on a reasonable scale and measures up in given facts and
circumstances of the case being just and appropriate.
33. Thus, this point is held.
34. POINT No.3: In view of the findings on points 1 and 2, this Civil
Miscellaneous Appeal has to be dismissed and in the circumstances,
without costs.
35. In the result, this Civil Miscellaneous Appeal is dismissed
confirming the order of the Commissioner for Workmen Compensation
cum Assistant Commissioner of Labour, Circle-I, Guntur, in W.C.Case
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C.M.A.No.1480 of 2008
No.51 of 2004 dated 04.04.2006. The Commissioner is directed to
disburse balance amount to the respondents 1 to 4 in accordance with
the provisions of Workmen Compensation Act, without insisting security.
No costs. All pending petitions, stand closed.
____________________
M. VENKATA RAMANA, J
Dt:01.02.2021
Rns
MVR,J
C.M.A.No.1480 of 2008
HON'BLE SRI JUSTICE M. VENKATA RAMANA
C.M.A.No.1480 OF 2008
Date: 01.02.2021
Rns
