Andhra Pradesh High Court - Amravati

The New India Assurance Co Ltd vs Sri Pothuri Pullam Raju 2 Ors on 15 March, 2021

Bench: M.Venkata Ramana

                                                            MVR,J
                                                           C.M.A.No.1616 of 2008

                                    1


               HON'BLE SRI JUSTICE M. VENKATA RAMANA

                         C.M.A.No.1616 of 2008
JUDGMENT:

This Civil Miscellaneous Appeal is directed against the order of the

Commissioner under Workmen Compensation Act cum Assistant

Commissioner of Labour, Eluru, in W.C. Case No.53 of 2006 dated

15.11.2007 (Commissioner for 'short').

2. The insurer of the Bajaj Scooter AP 37K 2230 belonging to the third

respondent is the appellant. The respondents 1 and 2 are the parents of

the deceased Sri Pothuri Narasimha Raju. He died in an accident on

08.09.2006 at 2.30 p.m. near Digumarru Village, when an unidentified lorry

coming from opposite direction dashed against the above scooter on which

he was going to Chinchinada along with Sri Kunapuraju Rama Rangaraju.

3. According to the respondents 1 and 2, in the application before the

Commissioner for Workmen Compensation at Eluru, the deceased was

working as a Supervisor of the fish ponds belonging to the third respondent

and was 26 years old on the date of the accident. They further stated that

the third respondent was paying to the deceased Rs.5,000/- per month

towards wages. Contending that the deceased died during and in the

course of employment of the third respondent, compensation of

Rs.4,00,000/- was claimed by them against the third respondent and the

appellant.

4. The third respondent before the Commissioner admitted that the

deceased was working for him and also the wages, which he was paying as

well as the age of the deceased. He did not dispute the nature of the

accident and admitted that the scooter AP 37K 2230 belonging to him.

MVR,J C.M.A.No.1616 of 2008

5. The appellant resisting this claim denied the version of the

respondents 1 and 2 mainly contending that the deceased did not have a

valid driving licence at the time of the accident. It also contended that

the accident occurred when the deceased and another were proceeding to

a car festival at Chinchinada, which is also stated in the First Information

Report (FIR) registered by the police concerned to this accident. Thus

denying its liability, it is stated that even otherwise, the compensation

claimed is excessive.

6. The Commissioner settled the following issues for enquiry basing on

the material:

1. Whether deceased is a workman, died while on duty and

whether the accident occurred, during the course of

employment or not and liability of opposite parties?

2. What are the wage and age particulars to determine the

quantum of compensation?

7. In the course of enquiry, the first respondent examined himself as

A.W.1 and an injured as well as the pillion-rider on the scooter at the time

of the accident Sri K.Rama Rangaraju as A.W.2, while relying on Exs.A1 to

A4. On behalf of the insurer, R.W.1 was examined through whom, Ex.B1 to

Ex.B3 were marked before the Commissioner.

8. On the material, the Commissioner held that the deceased died

during and in the course of the employment of the third respondent and

that the liability of the appellant stands in view of subsisting contract of

insurance between the third respondent and the appellant under Ex.B2

policy. Thus, basing on the material considering the age of the deceased

and minimum wages applicable to a supervisor on the date of the accident,

applying appropriate factor, the Commissioner arrived at a compensation MVR,J C.M.A.No.1616 of 2008

of Rs.4,21,895/- directing the third respondent and the appellant to pay

jointly and severally.

9. It is against the said order, this Civil Miscellaneous Appeal is

preferred by the insurer.

10. Sri Amancherla Satish Babu, learned counsel for the appellant and

Sri D.Krishna Murthy, learned counsel for the respondents 1 and 2

addressed arguments.

11. Now, the following points arise for determination:

1. Whether the deceased died during and in the course of

employment for the third respondent?

2. Whether the appellant is liable to satisfy the claim of the

respondents 1 and 2?

3. To what relief?

12. POINT No.1: Nature of the accident in which the deceased died on

08.05.2006 at 2.30 p.m. at Digumarru village when he was riding on a

scooter with A.W.2 Sri K.Rama Ranga Raju is proved not only by the

testimony of A.W.2 but also Ex.A1 and Ex.A2 - copies of FIR and Inquest

Report respectively. The nature of death of the deceased due to severe

injuries received in this accident is proved by copy of post-mortem report

in Ex.A3. The testimony of A.W.1 the father of the deceased, is not that of

an eyewitness to the accident.

13. First Information (complaint) was given in this case to the

concerned police by A.W.2 Sri K.Rama Ranga Raju on which FIR was

registered. The contention of the appellant is that the deceased and

A.W.2 were proceeding to the car festival on the scooter in question and

A.W.2 was holding a goat in his hand. Therefore, it is contended for the MVR,J C.M.A.No.1616 of 2008

appellant that it can never be stated that the deceased was proceeding on

account of the work entrusted to him by the third respondent.

14. It is the specific contention of the respondents 1 and 2 that the

deceased was going to Chinchinada to purchase aqua feed for the purpose

of fish ponds of the third respondent and when this accident occurred.

15. Ex.A1 copy of FIR refers to involvement of the deceased as well as

A.W.2 Sri K.Rama Ranga Raju in this accident. Sri K.Rama Ranga Raju

suffered serious injuries in that accident, but he survived. He clearly

deposed the purpose for which the deceased was proceeding and according

to him, at his request the deceased offered to drop him at Chinchinada.

The material on record shows that it was A.W.2 Sri K.Rama Ranga Raju,

who was holding the goat. Since the purpose of the deceased riding the

scooter was to go to Chinchinada, on behalf of the third respondent his

employer, the statement whatever recorded by the police in Ex.A1 FIR

cannot be taken as giving out complete information. Merely because A.W.2

was holding a goat when sitting as a pillion rider on the scooter, it cannot

lead to hold that the deceased was also going on the scooter for the same

purpose to attend the car festival in that village.

16. The third respondent categorically came out as R.W.1 the purpose

for which the deceased was going on that day, viz. to purchase aqua feed

for his fish tanks, though he could not produce any record as to nature of

employment of the deceased, the material on record clearly makes out

that the deceased was going to Chinchinada only for the purpose of the

third respondent as a part of his employment and when this accident

occurred.

17. Contra to this evidence of the respondents 1 and 2 on record, the

appellant did not place any other material nor the defence raised by the MVR,J C.M.A.No.1616 of 2008

appellant in this respect is not in any manner diluting the acceptable

nature of the evidence adduced by the respondents 1 and 2 before the

Commissioner.

18. Therefore, the inference to draw is that the deceased was going on

the scooter of the third respondent at the time of the accident on account

of his employment for the third respondent and during its course. Thus,

this point is answered in favour of the respondents 1 and 2 and against the

appellant.

19. POINT No.2: Admittedly, on the date of the accident, the scooter in

question was covered by insurance policy under Ex.P1. It has covered the

third party risk apart from the owner's risk.

20. In order to support its defence that the deceased was not holding a

valid driving licence at the time of the accident, the appellant did not

produce necessary material. It did not examine anyone from the office of

the Road Transport Authority and to prove that the deceased never had a

driving licence. It is in the evidence of R.W.1, viz., the third respondent

that he got a driving licence issued to the deceased. Though a notice was

issued to the respondents 1 and 2 in the course of enquiry as seen from

Ex.B3 to produce the driving licence of the deceased, which was not

responded to, the insurer could have taken steps to examine anyone from

the Road Transport Authority as rightly observed by the Commissioner in

the order impugned.

21. In terms of Section 147(1)(b) of Motor Vehicles Act, in case of

application of workmen compensation Act, between employer and

employee, it is not necessary that an insurance policy is not required, when

the employee to whom this provision is applicable was engaged in driving

the vehicle. When there is material to apply Section 3(1) of the Workmen MVR,J C.M.A.No.1616 of 2008

Compensation Act, when it is read along with Section 147(1)(b) of Motor

Vehicles Act, Ex.B1 policy covers such risk.

22. My view in this regard is supported by the judgment in ORIENTAL

INSURANCE COMPANY LIMITED v. DAVIS AND ANOTHER of Sri

T.B.Radhakrishnan, J.,(as his Lordship then was) In para - 9 of this ruling,

in this context, it is stated as under:

"9. In terms of Section 3(1) thereof, the liability of an employer to pay compensation in accordance with the provisions of Chapter II of the W.C. Act, is for the personal injury caused to a workman by the accident arising out of and in the course of his employment. The thrust is on the course of employment. While drafting the first proviso to Section 147 of the M.V. Act, the legislature has used the terms 'employment', 'employed' and 'engaged'. The liability that is required to be covered in terms of the first proviso is the compensation due on account of injury arising out of and in the course of his 'employment', suffered by the employee, while Clause (a) under proviso (i) uses the word 'engaged'. The legislature by the use of the words 'employment', 'employed' and 'engaged' in the M.V. Act, with reference to W.C. Act, a legislation that was already in existence, the clear distinction between the concept of 'employment' and 'engagement' is maintained. Hence, the word 'engaged' in Clause

(a) of proviso (i) is not to be read as 'employment'. Therefore, the legislative intention is clear that any injury sustained by an employee during the course of his employment has to be compensated if bodily injury or death has occasioned during his engagement in driving the vehicle. So much so, the word 'engaged' in Clause (a) of proviso (i) indicates the duty or activity carried on by the workman at the time of suffering the accident, resulting in his death or in injuries to him. Hence, it would be an impermissible and an extremely restricted approach to hold that a person, who was employed as a driver, would alone fall under Clause (a) of proviso (i). Therefore, the only manner in which proviso (i)(a) of Section 147(1) can be interpreted is by holding

2007 ACJ 1617(Kerala High Court) MVR,J C.M.A.No.1616 of 2008

that it is not necessary for a person to be employed exclusively as a driver under an employer to sustain a claim referable to the said provision and one who is engaged in driving the vehicle, thereby meaning, driving the vehicle at the time of the accident, is entitled to compensation and insurance covered under the said proviso, provided he was in the employment of the employer and, therefore, a workman and still further, that he was driving the vehicle at the time of the accident under due authorisation of the employer."

23. Therefore, the objection of the appellant in the light of these

reasons cannot stand nor can it contend that it stands exonerated from

liability. The Commissioner took into consideration the age of the

deceased, appropriate factor applicable to his age and also wages of the

deceased in terms of Minimum Wages Act, at Rs.3,919.50 ps. On such

basis, he awarded the compensation by the order under challenge.

24. There is no reason to interfere with the order under appeal, since it

is a reasoned order. The contentions of the appellant did not in any

manner lead to hold that interference is required with the same. Thus,

this point is answered.

25. POINT No.3: In view of the findings on points 1 and 2, this civil

miscellaneous appeal has to be dismissed and without costs confirming the