The National Insurance Co. Ltd., ... vs Shaik Arifa And 2 Others
2021 Latest Caselaw 525 AP

             HON'BLE SRI JUSTICE M.VENKATA RAMANA

          CIVIL MISCELLANEOUS APPEAL No.548 of 2005

JUDGMENT :

This Civil Miscellaneous Appeal is directed against the order of the

Commissioner for Workmen's Compensation and Assistant Commissioner

of Labour, Kadapa in W.C.No.110 of 2003 dated 20.04.2005.

2. The 2nd respondent before the Commissioner is the appellant.

The applicants 1 and 2 are the respondents 1 and 2 herein and whereas

the 1st respondent before the Commissioner is the 3rd respondent herein.

3. The respondents 1 and 2 filed an application before the

Commissioner as the legal heirs of one Sri Mohammed Ali to award a

compensation of Rs.4,00,000/- with interest at 12% p.a. from the date of

the accident in their favour and against the 3rd respondent and the

applicant jointly and severally. They contended in their application that

the deceased Mohammed Ali was a driver employed by the 3rd respondent

of lorry AP 04U/5187 and that it was insured with the appellant.

4. The contention of the respondents 1 and 2 before the

Commissioner was also that on 12.10.2003 at about 4.45 p.m. when the

deceased was driving lorry AP-04-U-5187 on Kamalapuram to Yerraguntla

main road near Gollapalli on a bridge another lorry TN-23-C-3767 coming

from opposite direction in a rash and negligent manner at high speed

dashed against the lorry driven by the deceased. As a result, the deceased

died and the lorry being driven by him suffered extensive damage. Thus,

the respondents 1 and 2 contended that the above accident occurred in

the course and during employment of Sri Mohammed Ali.

MVR,J CMA No.548 of 2005

5. The respondents 1 and 2 further contended that Sri Mohammed

Ali was earning Rs.4,000/- per month towards his wages as well as batta,

who was hale and healthy at the time of the accident and was 34 years

old by then. He was the only source for their living and on account of his

untimely death they lost his support affecting their future. In those

circumstances, they claimed that compensation requested is just and

appropriate, which the appellant as well as the 3rd respondent are liable to

pay.

6. The 3rd respondent did not choose to contest the case before

the Commissioner.

7. The appellant resisting the claim of the respondents 1 and 2

filed a written statement before the Commissioner, mainly denying the

alleged accident and it being liable to satisfy the claim of the respondents

1 and 2. The main objection of the appellant was that at the time of the

alleged accident, the lorry driven by the deceased AP 04U/5187 though a

goods carrying vehicle, was used for transporting passengers and that

policy of insurance did not cover the risk of employee/driver. In the above

circumstances, it contended that the 3rd respondent alone is liable to

satisfy the claim of the respondents 1 and 2 and that it is not liable to

indemnify him. It also denied the wages of the deceased and contended

that the compensation so claimed is unnecessarily excessive and

exorbitant.

8. On the material, the Commissioner settled the following issues

for enquiry:

MVR,J CMA No.548 of 2005

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

2. What was the age of deceased at the time of accident?

3. What were the wages paid to the deceased at the time of accidental death?

4. What is the quantum of compensation payable to the applicants?

5. Who are liable to pay the compensation to the applicants?"

9. Before the Commissioner the 1st respondent examined herself as

A.W.1 and relied on Exs.A1 to A3. On behalf of the appellant, no evidence

was let in nor any document was marked.

10. Basing on the material, the Commissioner held that the

deceased Mohammed Ali was the driver working for the 3rd respondent at

the time of the accident which occurred during and in the course of his

employment as such. Basing on the age of the deceased and considering

his wages in terms of G.O.Ms.No.81 dated 29.03.2001 applying relevant

factor at 197.06, the Commissioner arrived at a compensation of

Rs.3,46,618/- directing the same to be paid by the 3rd respondent and the

appellant jointly and severally with interest at 12% p.a. from the date of

the accident till realization.

11. It is against this order, this Civil Miscellaneous Appeal is

presented.

12. Heard Sri P.Phalguna Rao, learned counsel for the appellant,

and Ms.Sodum Anvesha, learned counsel, for Sri P.Veera Reddy, learned

counsel for the respondents 1 and 2.

13. Now, the following points arise for determination:

1. Having regard to the nature of the accident in question, whether the appellant is liable to satisfy the claim of the MVR,J CMA No.548 of 2005

respondents 1 and 2 and if it is not liable to indemnity the 3rd respondent therefor?

2. To what relief?

POINT No.1:-

14. The 1st respondent as A.W.1 deposed setting out their case

that the deceased died in the accident occurred on 12.01.2003 at about

4.30 p.m. on the main road between Kamalapuram and Yerraguntla near

Gollapalli bridge. The version of A.W.1 is supported by Ex.A1- copy of First

Information Report in Cr.No.86 of 2003 for offences under Sections

337 IPC, 338 IPC and 304-A IPC registered in Kamalapura Police Station.

Ex.A2 copy of inquest report offered further corroboration to her version.

15. The material so placed proved that the mini lorry being driven

by the deceased Mohammed Ali suffered an accident at the above place

when another lorry TN 23C 3167 coming from opposite direction dashed

against it. As a result, not only the deceased Mohammed Ali, others

suffered injuries, who were either in the cabin or in the body of this lorry

and another person also died in that accident as per the contents of Ex.A2

inquest report.

16. Ex.A1 and Ex.A2 are to the effect that the deceased was

driving this lorry with a marriage party of about 45 persons on board and

that they began their journey from Chennur to go to Gangadevipalli to

attend a marriage reception.

17. The respondents 1 and 2 in their application or in their

evidence particularly in examination-in-chief of A.W.1 did not refer to this

fact. However, in her cross-examination on behalf of the appellant, A.W.1 MVR,J CMA No.548 of 2005

stated that there were 32 persons in the body of this lorry driven by Sri

Mohammed Ali when this accident occurred.

18. These circumstances are the basis for the contention of the

appellant.

19. Sri P.Phalguna Rao, learned counsel for the appellant, relying

on the above material strenuously contended that in as much as the lorry

driven by the deceased was overloaded and since the vehicle was misused

for carrying and transporting passengers, though a goods vehicle, the

appellant insurer is not liable to satisfy the claim of the respondents

1 and 2.

20. However, Ms. Sodum Anvesha, learned counsel for the

respondents 1 and 2, contended that the burden is on the appellant to

make out an exception that it is not liable to indemnify the 3rd respondent

under the contract of insurance. The learned counsel for the respondents

1 and 2 further contended that in as much as there is no evidence

adduced by the appellant of any nature before the Commissioner to

support this defence, it cannot rely on the statements of A.W.1 and that

even for such purpose to claim an exception, it is for the appellant to

discharge this burden.

21. The material on record indicated that the deceased Mohammed

Ali was driving the mini lorry in question that belonged to the 3rd

respondent with a marriage party when it met with the accident.

However, to claim that it is not liable to pay compensation to the

respondents 1 and 2, it is the duty of the appellant to produce necessary

evidence. Unfortunately, in this case on behalf of the appellant, its MVR,J CMA No.548 of 2005

defence was not properly carried forward before the Commissioner

adducing appropriate evidence. It was not proved before the

Commissioner by the appellant that though being a goods vehicle, it

would not stand within any of the exceptions of Rule-252 of A.P.Motor

Vehicle Rules to carry passengers. It also failed to prove the terms and

conditions by which the insurance policy was issued to this vehicle in

favour of the 3rd respondent. A.W.1 in her deposition clearly stated that

there was valid insurance policy for this vehicle at the time of the accident

and that it was in force. As seen from the written statement of the

appellant there is no denial of the same and on the other hand, the

appellant contended that it had issued the policy subject to certain terms

and conditions as well as endorsements thereon. It further contended that

the policy did not cover the risk of employee or the driver.

22. In such event, it is for the appellant to establish this defence

by producing a copy of policy of insurance and if required, necessary

records relating to this lorry from Road Transport Authority of the State.

Absolutely, no effort was made before the Commissioner in this direction.

The contents of its written statement cannot amount to proof.

23. Therefore, when the defence set up by the appellant is not

substantiated in any manner, it cannot claim that it is excluded of its

liability to indemnify the 3rd respondent under the contract of insurance. It

is further to be noted that the 3rd respondent did not choose to contest

this matter at any stage. Improper handling of defence on behalf of the

appellant has led to this situation.

24. The Commissioner did not discuss about the impact of carrying

passengers in a goods vehicle and held that the appellant as well as the MVR,J CMA No.548 of 2005

3rd respondent are jointly and severally liable to satisfy the claim of the

respondents 1 and 2. Nonetheless, on account of the fatal flaw and

omission of the appellant in failing to lead appropriate evidence before the

Commissioner, there is no other option except to hold the appellant is

liable along with the 3rd respondent to satisfy the claim of the respondents

1 and 2, the liability being joint and several.

25. Therefore, this point is answered in favour of the respondents

1 and 2 and against the appellant.

POINT No.2:

26. In view of the findings on point No.1, the order of the

Commissioner has to be confirmed in all respects.

27. In the result, this Civil Miscellaneous Appeal is dismissed and

without costs. Consequently, the order of the Commissioner for

Workmen's compensation and Assistant Commissioner of Labour, Kadapa

in W.C.No.110 of 2003 dated 20.04.2005 is confirmed. The Commissioner

is directed to disburse the unpaid amount, if any, payable towards

compensation so awarded to the respondents in accordance with

Workmen's Compensation Act particularly considering that the 2nd

respondent is a minor and to protect his interest.

As sequel thereto, all pending miscellaneous petitions, shall stand

closed. Interim Orders, if any, shall stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt: 02.02.2021 RR MVR,J CMA No.548 of 2005

HON'BLE SRI JUSTICE M.VENKATA RAMANA

CIVIL MISCELLANEOUS APPEAL No.548 of 2005

Dt:02.02.2021

RR