Shaik Shabbeer vs Danda Siva Naga Malleswara Rao And ...
2022 Latest Caselaw 8629 AP

          THE HON'BLE SRI JUSTICE VUTUKURU SRINIVAS

          CIVIL MISCELLANEOUS APPEAL No.891 of 2009


JUDGMENT:

This Civil Miscellaneous Appeal is directed against the order

of the Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour-1 Circle, Guntur (hereinafter called as

'the Commissioner') in W.C.No.33 of 2004 dated 15.05.2006.

2. The applicant before the Commissioner is the appellant

herein. The 2nd respondent herein is the insurer of the Mini Lorry

bearing No.AP 7T 8829 (hereinafter called as 'crime vehicle')

belonging to the 1st respondent herein.

3. According to the appellant/applicant, in the application

before the Commissioner for Workmen's Compensation at Guntur,

he worked as Coolie under the 1st respondent Poultry Farm. On

22.03.2003, while the applicant and others travelling in crime

vehicle to unload the eggs, within the jurisdiction of Amaravathi

P.S., the accident was occurred and he received injuries. Since the

accident occurred during and in the course of employment, the

applicant filed application under W.C. claiming compensation.

4. The 1st respondent herein filed counter, while admitting

employment, accident, injuries of the applicant, stated that his

vehicle was insured with 2nd respondent herein and the same was

in force by the date of accident and prays to dismiss the petition

against him.

5. Counter was filed by the insurer denying the material

averments and stated that the applicant is not under the

employment as a coolie of the said crime vehicle; that the 1st

respondent herein not paid any premium towards the liability of

coolies and prays to dismiss the application.

6. The Commissioner settled the following issues for enquiry

basing on the material:

1.Whether the applicant was a workman as per the provisions of the Act and he received personal injuries 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?

7. In the course of enquiry, on behalf of the

applicant/appellant, AW.1 and AW.2 were examined and Exs.A.1 to

A.8 were marked. On behalf of the 1st respondent herein, himself

examined as R.W.1. No oral and documentary evidence was

adduced on behalf of the 2nd respondent herein.

8. On the material, the Commissioner held that the applicant

worked as a coolie in the poultry farm of the 1 st respondent

herein, but not as coolie on the crime vehicle in question and

there is no employer and employee relationship between the

applicant and 1st respondent herein so far as the crime vehicle is

concerned and as per the F.I.R. and charge sheet, there are fifteen

(15) persons travelling in the crime vehicle at the time of accident

and thereby violated the terms and conditions of the policy.

Hence, the 1st respondent herein alone liable to pay compensation

of Rs.48,109/- to the applicant, within thirty days from the date of

receipt of this order, by way of demand draft drawn in favour of

Commissioner for Workmen's Compensation, Guntur and submit

the DD in the office of Deputy Commissioner of Labour, Guntur.

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

preferred by the applicant.

10. Heard Smt.M.L.Neelima, learned counsel for the appellant

and Sri Gudi Srinivasu, learned counsel for the 2nd respondent.

11. Now, the following points arise for determination:

1. Whether the injuries received by the appellant/claimant covered under the terms and conditions of the policy issued in respect of the crime vehicle?

2. Whether the insurer is liable to pay compensation to the applicant ? and

3. To what relief ?

12. POINT No.1:

In order to decide that the injuries received by the

appellant covered under the terms and conditions of the policy,

the fact to be noticed is that the appellant worked as coolie in the

poultry form, but not as a loading and unloading coolie on the

crime vehicle at the time of accident, as observed in the F.I.R. and

charge sheet also. The applicant did not place any record to show

that he is a loading and unloading coolie on the lorry in question.

No document or otherwise filed to make a finding that there is any

employer and employee relationship between the 1 st respondent

and applicant in respect of the crime vehicle is concerned. Even

though the 1st respondent herein (R.W.1), who is none other than

the owner of the crime vehicle, admitted employment of the

applicant, but the insurance policy covers the risk of persons in the

vehicle in question only, but not coolies in the poultry farm. More

particularly, at the time of accident fifteen (15) persons were

traveling in the crime vehicle, which is violation to the terms and

conditions of the policy by allowing more persons other than

permitted in the policy and permit.

13. At this juncture, the learned counsel for the appellant

submits that the policy is not brought on record. It is true that the

policy is not filed either before the Commissioner or before this

Court. On that aspect, the learned counsel for the 2nd respondent

herein/insurer submits that no policy will cover the risk of fifteen

(15) persons who are travelling in a goods vehicle i.e., mini lorry at

the time of accident. He further submits that it is nothing but

violation of terms and conditions of the policy. Admittedly, the

claimant neither before the Commissioner nor in this Court filed

any application to summon the policy. Even otherwise, it is an

admitted fact that no policy will cover the risk of fifteen (15)

persons travelling in a mini lorry as passengers or coolies.

Moreover, it is an established fact that the appellant/workmen

herein worked as coolie in the poultry farm, but not on the crime

vehicle.

14. At this juncture, it is also relevant to state that the learned

counsel for the 2nd respondent brought to the notice of this Court

that the seating capacity of the mini lorry bearing No.AP 7 T 8829

is three (3) including driver and cleaner. In the case on hand, as

per the charge sheet the driver, cleaner and owner were already

on the vehicle and admittedly the appellant is neither driver nor

cleaner or owner of the crime vehicle. Even on that ground also,

there is no case in favour of the appellant to claim compensation

against the insurer.

15. In view of the above, the Commissioner rightly came to a

conclusion that the policy issued in respect of the crime vehicle

does not cover the risk of the coolies working in poultry farm.

Thus, this appoint is answered in favour of 2nd respondent and

against the appellant herein.

16. POINT No.2:

So far as this aspect is concerned, in view of the findings in

point No.1, the appellant failed to establish his case before the

Commissioner that he was working as loading and unloading coolie

on the crime vehicle at the time of accident. On the other hand,

as stated supra as per the charge sheet and F.I.R. there are more

than fifteen (15) persons travelling in the crime vehicle at the

time of accident, which is violation to the terms and conditions of

the policy. Having regard to the above, the Commissioner rightly

gave a finding that the 2nd respondent herein is not liable to pay

any compensation to the appellant and the 1st respondent herein

alone liable to pay compensation. Thus, this appoint is answered in

favour of 2nd respondent and against the appellant herein.

17. POINT No.3:

In view of the findings on point Nos.1 and 2, the order of the

Commissioner does not suffer any infirmities and this Court is not

inclined to meddle with the well articulated order passed by the

Commissioner and as such 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-1 Circle,

Guntur in W.C.No.33 of 2004 dated 15.05.2006. 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.

___________________ VUTUKURU SRINIVAS, J Date: 10.11.2022 Krs

THE HON'BLE SRI JUSTICE VUTUKURU SRINIVAS

CIVIL MISCELLANEOUS APPEAL No. 891 of 2009

DATE: 10.11.2022

Krs