The National Insurance Co.Ltd., ... vs Lodagala Venkata Lakshmi, ...
2022 Latest Caselaw 9294 AP

               THE HON'BLE SRI JUSTICE V.SRINIVAS

          CIVIL MISCELLANEOUS APPEAL No.315 of 2015


JUDGMENT:

This Civil Miscellaneous Appeal is directed against the order

of the Commissioner for Workmen's Compensation Act and

Assistant Commissioner of Labour-I, Visakhapatnam (hereinafter

called as 'the Commissioner'), in W.C.No.48 of 2005 dated

10.06.2009.

2. The insurer of the Tractor-Trailer bearing No.ABV 6227 &

6228, belonging to the 6th respondent herein, is the appellant. The

respondent Nos.1 to 5 herein are the applicants.

3. Respondent Nos.1 to 5/applicants herein filed the said W.C.

claiming compensation of Rs.4,00,000/- for the death of Lodagala

Appalaswamy (hereinafter called as 'the deceased'), who died in

an accident that occurred on 13.05.2005 during the course of his

employment. They stated in the application before the

Commissioner that the deceased was worked as a laborer on the

Tractor-Trailer bearing No.ABV 6227 & 6228 belonging to the 6th

respondent herein. On 13.05.2005, the deceased attended his duty

as a laborer in the said vehicle along with others and loaded the

iron and wooden railway sleepers. When the said vehicle

proceeding towards Marripalem goods shed for unloading the load

at the Railway yard, due to rash and negligent driving, the driver

of the vehicle dashed against the electrical pole near Marripalem

Ampu Yard. As a result, the deceased fell on the road from the

trailer and the wooden sleepers fell on him. Due to which, he

sustained head injury and died during the course of treatment at

K.G.H., Visakhapatnam. At the time of accident, the deceased

was aged about 28 years and earning Rs.4,000/- p.m and Rs.50/-

per day as batta. The appellant being the insurer and the 6 th

respondent herein being the owner of the vehicle are jointly and

severally liable to pay compensation.

4. Counter was filed by the insurer/appellant denying all the

contentions of the applicants and also denied the employment of

the deceased with the 6th respondent; that there is no employer

and employee relationship and prayed to dismiss the application.

5. The 6th respondent/owner also filed counter disputing the

material averments and further he did not admit the employment

of the deceased, the deceased was a workman within the meaning

of the Act, the occurrence of the accident, the narration of

accident, workman sustained injuries during the course and out of

his employment and the wages of the deceased. Hence, he prayed

to dismiss the application.

6. The Commissioner settled the following issues for enquiry

basing on the material:

1.Whether the deceased L.Applanarasayya worked as a Labourer and employee of Opposite Party-I ?

2.Whether he died during and arising in the course of employment with OP-I ?

3.Whether his age was 28 years at the time of accident ?

4.Whether he was paid Rs.4,000/- per month as wages and Rs.50/- per day as batta ?

5.Whether the applicants are entitled for payment of compensation, if so, who is liable to pay the same and how much ?

7. In the course of enquiry, on behalf of the applicants, AW.1

and AW.2 were examined and Exs.A.1 to A.4 were marked. On

behalf of the appellant/insurer, R.W.1 was examined and Exs.B.1

to B.4 were marked.

8. On the material placed on record, the Commissioner held

that the deceased died in an accident during the course and out of

his employment under the 6th respondent and as the policy was in

force at the time of accident, directed the appellant and

respondent No.6 herein to deposit the compensation amount of

Rs.2,57,735/- by way of demand draft drawn in favour of

Commissioner for Workmen's Compensation, Visakhapatnam,

payable on SBI, Maharanipeta, Visakhapatnam, within thirty days

from the date of receipt of that order.

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

preferred by the insurer.

10. Heard Sri T.S.Rayalu, learned counsel for the appellant and

Sri Y.Koteswara Rao, learned counsel for respondent Nos.1 to 5.

11. Now, the following points arise for determination:

1. Whether the deceased was a workman under the tractor belonging to the 6th respondent herein ?

2. Whether there is no employee and employer relationship as contented by the appellant ?

3. Whether the policy issued by the appellant does not cover the risk of the deceased ? and

4. To what relief ?

12. POINT Nos.1 to 3:

Shorn of the facts and evidence as placed on record

explicitly establishes that the wife, children and parents of the

deceased have filed the claim application and established their

case before the commissioner. The deceased worked for wages

Rs.4,000/- per month and Rs.50/- per day batta and was aged 28

years, which are undisputed facts.

13. While the deceased was working as labour, on 13 05.2005,

along with other workers loaded iron and wooden railway sleepers

in the vehicle belonging to the 6th respondent and while

proceeding towards Marripalem goods shed for unloading the said

vehicle, met with an accident. Resulting, the deceased fell on the

road from the trailer and received head injury. While taking

treatment, in K.G.H., Visakhapatnam, succumbed to injuries and

accident occurred due to negligent driving of driver of the 6th

respondent.

14. It is placed on record, the evidence of one Baki Ramu

(A.W.3), who travelled along with the deceased as coworker,

confirmed the above facts and nothing found in the cross

examination to disbelieve his evidence and he consistently stated

that the deceased was working under the 6th respondent and got

wages from him and whenever the 6th respondent work is there,

they attend his work and when there is no work, they attend the

works through their Mastries. Nothing found from the testimony of

Baki Ramu (A.W.3) to disbelieve his evidence. Thereby, it is

established that the deceased worked as labourer in a tractor

belonging to the 6th respondent and died during and in the course

of employment and the policy of the 6th respondent vehicle has got

marked as Ex.B.1, which clearly emanates that it covers the risk of

the workers also and even the appellant's witness (R.W.1)

categorically admitted that the policy covers the risk of six (6)

labour apart from driver of the vehicle as on the date of the

accident. It is only stated by the appellant before the

Commissioner that the deceased was not travelling in the capacity

of labour, but no contra evidence is placed to that effect, except

the evidence of N.Saroja, Assistant Administrative Officer, who was

examined on behalf of the appellant.

15. Since, the vehicle of the 6th respondent having valid

insurance policy and the deceased was travelling as labour, which

is said to be established, the Commissioner found that the

deceased was labour and employed under the 6th respondent and

he died during and in the course of employment.

16. The Commissioner after duly following the minimum wages

prescribed by the Government of Andhra Pradesh for the category

of labourer working in Public Motor Transport undertakings and as

per the Workmen's Compensation Act, arrived at calculations for

awarding compensation. Moreover, there is no dispute regarding

wages of the deceased as well as calculations mentioned by the

Commissioner. Therefore, the Commissioner had calculating the

wages as per the formula as envisaged in the Workmen's

Compensation Act and arrived at a figure of Rs.2,57,735/-, which

is liable to be paid by the appellant as well as the 6 th respondent

herein jointly and severally. The Commissioner after duly

considering the material on record passed the well articulated

order and nothing found in the appeal warrants interference of

this Court. Thus, these points are answered in favour of

respondent Nos.1 to 5 and against the appellant herein.

17. POINT No.4:

In view of the findings on point Nos.1 to 3, this civil

miscellaneous appeal is liable to be dismissed.

18. In the result, this Civil Miscellaneous Appeal is dismissed by

confirming the order of the Commissioner for Workmen's

Compensation and Assistant Commissioner of Labour-I,

Visakhapatnam, in W.C.No.48 of 2005 dated 10.06.2009. The

balance amount, if any, in deposit payable to the respondent Nos.1

to 5(applicants) herein shall be released by the Commissioner

without insisting for any security. There shall be no order as to

costs.

19. Interim orders granted earlier if any, stand vacated.

20. Miscellaneous petitions pending if any, stand closed.

___________ V.SRINIVAS, J Date: 05.12.2022 krs

THE HON'BLE SRI JUSTICE V.SRINIVAS

CIVIL MISCELLANEOUS APPEAL No.315 of 2015

DATE: 05.12.2022

Krs