The United India Insurance ... vs Tadimarri Shaik Abdul Gaffar ...
2021 Latest Caselaw 1397 AP

                                                            MVR,J
                                                            C.M.A.No.959 of 2005

                                     1


               HON'BLE SRI JUSTICE M. VENKATA RAMANA

                           C.M.A.No.959 of 2005
JUDGMENT:

This Civil Miscellaneous Appeal is directed against the order of the

Commissioner under Workmen Compensation Act cum Assistant

Commissioner of Labour, Ananthapur, in W.C. Case No.10 of 2003 dated

08.06.2005.

2. The appellant is the second respondent-insurer, while respondents 2

to 4 were the applicants and the first respondent was the owner of the

jeep AP 02 U 4159, who was the first respondent before the Commissioner

(Commissioner for 'short').

3. The respondents 2 to 4 laid a claim before the Commissioner on

account of death of Sri Mekala Akkulappa, son of the second respondent.

The third respondent is the mother of the deceased and the wife of the

second respondent and whereas the fourth respondent is their daughter.

Sri Mekala Akkulappa, was a cleaner working on the jeep AP 02 U 4159

belonging to the first respondent. They are residents of Dharmavaram of

Ananthapur District.

4. The respondents 2 to 4 sought a compensation of Rs.2,50,000/-

against the first respondent and the appellant on account of death of Sri

Mekala Akkulappa in an accident near Almatti Dam on NH-13 on

04.07.2002. He was travelling in the jeep not only as a cleaner but also for

the purpose of collecting the fares from the passengers. On account of

driving the jeep in a rash and negligent manner by its driver and since it

dashed against a stationary lorry, the accident occurred in which not only

Sri Mekala Akkulappa, but two others were also died. Thus, it was an

incident occurred during and in the course of his employment for the first MVR,J C.M.A.No.959 of 2005

respondent. The respondents 2 to 4 also claimed that the deceased was

earning Rs.2,500/- per month and was 20 years old on the date of the

accident.

5. The first respondent filed a counter opposing this claim admitting

that the deceased Sri Mekala Akkulappa was an employee for him for

collecting fare from the passengers regulating their entry into the vehicle

while also attending to its cleaning. He further contended that since the

vehicle was insured with the appellant and since contract of insurance was

subsisting by the date of accident, he should be indemnified.

6. The appellant filed a detailed counter denying the nature of the

accident, the relationship of the deceased and the first respondent as

servant and master while denying its liability. While admitting that this

vehicle was insured with it on the date of the accident, where under

premium was also paid for '9' passengers apart from the driver, the

specific contention of the appellant in its counter was that risk of a cleaner

or other person employed on this vehicle was not indemnified under this

policy, since no special or extra premium was paid. It also disputed the

age and the wages claimed, of the deceased.

7. Basing on the material, the Commissioner settled the following

issues for enquiry:

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

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

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

4. What is the amount of compensation payable?

MVR,J C.M.A.No.959 of 2005

5. Who are liable to pay compensation?

8. Before the Commissioner in the course of enquiry, the second

respondent examined himself as A.W.1 and exhibited Ex.A1 to Ex.A7 in

support of his claim. No evidence was let in on behalf of the first

respondent. The appellant examined its Assistant Divisional Manager as

R.W.1 and relied on Ex.B1 copy of policy of insurance.

9. Basing on the material, the Commissioner held that the relationship

of the deceased and the first respondent being servant and master

respectively is established. Rejecting the contention of the appellant that

Ex.B1 policy did not cover the risk relating to an employee of the nature of

the deceased for the first respondent, considering the age as well as the

emoluments of the deceased, basing on G.O.Ms.No.30 dated 27.07.2000,

having regard to factor 224 applicable, the Commissioner awarded

a compensation of Rs.2,24,336/- with interest from the date of the claim

petition till the date of payment to the respondents 2 to 4 making the first

respondent and the appellant jointly and severally liable. However, with

reference to liability to pay interest, the appellant was exonerated while

directing the first respondent alone to pay that part of the compensation

awarded under this score.

10. Against this order, the appellant has preferred this appeal.

11. Sri Gudi Srinivas, learned standing counsel for the appellant, Sri

Maheswara Rao Kunchem, learned counsel for the first respondent and Sri

Ineni Venkata Prasad, learned counsel for the respondents 2 to 4 addressed

arguments.

12. Now, the following points arise for determination:

MVR,J C.M.A.No.959 of 2005

1. Whether the respondents 2 to 4 proved that the deceased Sri Mekala Akkulappa died in the alleged accident while working for the first respondent as a cleaner and as a workman collecting fares etc., on the offending jeep AP 02 U 4159?

2. Whether the appellant is liable to satisfy the claim of the respondents 2 to 4 and if the findings of the Commissioner thereon are proper?

3. To what relief?

13. POINT No.1: The second respondent examined himself as A.W.1. He

deposed in respect of the accident in question. Admittedly, he did not

have personal knowledge of the same. No other witness was examined

during enquiry for this purpose. However, the accident and its nature are

admitted by the first respondent in his counter. Apart from it, Ex.A1

certified copy of FIR relating to this accident, Ex.A2 certified copy of

Inquest Report of the inquest conducted on the dead body of Sri Mekala

Akkulappa, Ex.A3 certified copy of Post-mortem report, Ex.A4 certified

copy of Charge sheet lend support to the contention of the respondents 2

to 4.

14. Thus, when they are considered including with the stand of the first

respondent, it is clear that there is sufficient proof of the accident in

question. There is also sufficient proof that the deceased Sri Mekala

Akkulappa was working on the jeep of the first respondent as an employee.

Thus, their jural relationship in terms of Section 3 of Workmen

Compensation Act, stood established. The appellant did not place any

other material to rebut the evidence so available on record in this context.

Testimony of R.W.1 cannot be a substitute to reject the evidence so placed

in proof of this accident as well as the relationship between the deceased

and the first respondent.

MVR,J C.M.A.No.959 of 2005

15. Thus, this point is answered in favour of the respondents 2 to 4 and

against the appellant.

16. POINT No.2: It is the strenuous contention of the appellant that in

terms of Section 147 of Motor Vehicles Act, it is not liable to satisfy the

claim of the respondents 2 to 4 and that the first respondent is not

indemnified by the contract of insurance under Ex.B1 policy. It is also its

contention that Section 147(1)(b) of Motor Vehicles Act did not cover the

risk of a cleaner or any other person engaged for the purpose of regulating

entry or otherwise of the passengers into this jeep and that coverage of

compulsory risk relating to the driver cannot be extended to a cleaner.

17. As seen from Ex.B1 copy of policy of insurance and admitted stand of

the appellant is that this contract of insurance covered the risk of '9'

passengers apart from the driver of the vehicle. Extra premium was paid in

all Rs.1000/- there for.

18. The material on record also makes out that there were only '6'

passengers travelling in the jeep at the time of the accident and thus less

than the number stated in this policy. The Commissioner considered the

case of the deceased as a workman under Section 2(1)(n)(c) of Workmen

Compensation Act and to include a driver, helper, mechanic, cleaner or in

any other capacity in connection with the motor vehicle. Thus,

Commissioner observed that conductor falls within the purview of

description of workman, under the category "in any other capacity".

Thereupon, having regard to Ex.B1 policy and statement of R.W.1 in cross-

examination that Rs.1,443/- was collected as basic premium that included

the risk under Motor Vehicles Act, ultimately held that the defence of the

appellant cannot stand. Holding that the cleaner then travelling in the MVR,J C.M.A.No.959 of 2005

vehicle was meant for its purposes regulating the passengers, rejected such

objection of the appellant.

19. Sri Gudi Srinivas, learned counsel for the appellant strenuously

contended that the approach of the Commissioner is improper in as much

as in terms of Section 147(1)(b) of Motor Vehicles Act, since there is no

special contract covering the risk of a cleaner, the appellant could not

have been made liable to satisfy the claim. It is further contended that

the contention of the respondents 2 to 4 that the deceased Sri Mekala

Akkulappa, was a conductor in the vehicle is an afterthought, which was

subsequently introduced, though he was a cleaner. It is further contended

that there has been collusion between the respondents 2 to 4 on one hand

and the first respondent on the other, in order to cause loss to the

appellant.

20. However, Sri Ineni Venkata Prasad, learned counsel for the

respondents 2 to 4 with equal vehemence contended that the cleaner is

included within the definition of Section 2(n) of Workmen Compensation

Act as well as conductor, in description of 'any other person' and when the

Commissioner had taken into consideration not only Section 147(1)(b)

proviso 1(b) of Motor Vehicles Act, but also the vehicle in question

undisputedly being a public carrier, there is no necessity to disturb the

order under appeal.

21. RAMASHRAY SINGH v. NEW INDIA ASSURANCE CO.LTD.AND

OTHERS1 is relied on by Sri Gudi Srinivas, learned counsel for the appellant

in this context, with reference to application of Section 147(1)(b) of Motor

Vehicles Act. In para-8 it is observed as under:

2003 ACJ 1550 MVR,J C.M.A.No.959 of 2005

"Over and above the risks which are covered by this statutory provision, parties may of course enter into a contract by which the insurer agrees to cover additional risks. It is not the appellant's case that apart from the policy of insurance there was any contract between the appellant and the insurance company. The policy has a clause which defines the limits of liability in respect of death or bodily injury to any person caused by or arising out of the use of the motor vehicle under Section II(i) of the terms and conditions of the Policy. In proviso (b) to Section II(1), it has been expressly stated that "Except so far as is necessary to meet the requirements of the Motor Vehicles Act, the Company shall not be liable in respect of death of or bodily injury to any person in the employment of the insured arising out of and in the course of such employment."

This ruling later on was followed by the then High Court of A.P., at

Hyderabad in K.SARESWARA RAO v. KAKARAPARTHI ANJALI DEVI2 .

22. In respect of bringing liability or the risk within the frame work of

the insurance contract between the appellant and the first respondent

insofar as others, who are outside the application of Section 147(1)(B)

proviso(1) of MV Act as rightly contended for the appellant, additional

premium should be paid and a special contract needs to be entered into.

At the same time, the effect of this provision in relation to workmen,

where there is proved relationship of master and servant has to be

considered. What all it states with reference to the workman covered by

Workmen Compensation Act, is that if any policy has been taken by the

owner of the vehicle, the liability of the insurance company will be

confined to that extent arising under the Workmen Compensation Act.

23. Basing on the facts in this case, the Commissioner accepted that the

deceased was attending to collecting fare from the passengers, who were

making use of this vehicle. Though the appellant has seriously denied it, in

2013(5) ALD 351.

MVR,J C.M.A.No.959 of 2005

as much as such status of the deceased is also confirmed by the owner of

the vehicle, viz., the first respondent, the same has to be accepted and as

proved. Evidence adduced by the appellant in this context is not sufficient

to rebut the same. Apart from such purpose, he was also attending to

cleaning this vehicle.

24. Therefore, in given facts, in as much as Ex.B1 policy was issued

under Commercial Vehicle Package Policy covering risk of '9' passengers

apart from driver upon payment of extra premium by the first respondent

in tune with Section 147(1)(b) proviso 1(b) of Motor Vehicles Act, the case

of the deceased has to be brought in. Since the vehicle in question is a

public service vehicle covered by Commercial Package Policy in Ex.B1, the

status of the deceased as conductor of this vehicle attracts coverage of

risk, since the policy itself is comprehensive in nature. Thus, the findings

recorded by the Commissioner should be confirmed in this respect,

accepting the contention of the respondents 2 to 4.

25. Therefore, liability of the first respondent as well as the appellant

stand and to pay compensation on account of death of the deceased Sri

Mekala Akkulappa, to the respondents 2 to 4.

26. The Commissioner has taken into consideration the appropriate

parameters to arrive at the compensation, having regard to the age of the

deceased, applying the wages payable in terms of Minimum Wages Act as

declared by the Government and appropriate factor. Therefore, awarding

compensation of Rs.2,24,336/- in this case, is just and proper. Hence, the

order under appeal requires no interference and necessarily it has to be

confirmed.

27. Thus, this point is answered.

MVR,J C.M.A.No.959 of 2005

28. POINT No.3: In view of the findings on points 1 and 2, the appeal

has to be dismissed confirming the order of the Commissioner for Workmen

Compensation, Ananthapur.

29. In the result, this Civil Miscellaneous Appeal is dismissed confirming

the order of the Commissioner for Workmen Compensation cum Assistant

Commissioner of Labour, Ananthapur, in W.C.Case No.10 of 2003 dated

08.06.2005 without costs. Interim orders, if any, stand vacated. All

pending petitions stand closed. If any amount in deposit to the credit of

this case before the Commissioner is available, it shall be disbursed to

respondents 2 to 4 in accordance with Workmen Compensation Act, without

insisting for any security.

____________________ M. VENKATA RAMANA, J Dt:05.03.2021 Rns MVR,J C.M.A.No.959 of 2005

HON'BLE SRI JUSTICE M. VENKATA RAMANA

C.M.A.No.959 OF 2005

Date: 05.03.2021

Rns