The Oriental Insurance Company ... vs M.Lakshmidevi 4 Ors
2022 Latest Caselaw 8740 AP

         THE HON'BLE SRI JUSTICE VUTUKURU SRINIVAS

          CIVIL MISCELLANEOUS APPEAL No.637 of 2010


JUDGMENT:

This Civil Miscellaneous Appeal is directed against the order

of the Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour, Anantapur (hereinafter called as 'the

Commissioner') in W.C.No.29 of 2006 dated 28.01.2010.

2. The insurer of the Tata SUMO bearing No.GA 02 A 9603,

belonging to the 4th respondent herein, is the appellant. The

respondent No.1 herein is the wife and respondent Nos.2 and 3 are

the children of M.Mallikarjuna (hereinafter called as 'the

deceased'). The appeal against respondent No.5 herein, who sold

the said Tata Sumo to the 4th respondent herein, dismissed vide

order dated 19.04.2016.

3. According to the respondent Nos.1 to 3/applicants, in the

application before the Commissioner for Workmen's Compensation

at Anantapur, the deceased was working as a driver under the 4th

respondent herein on monthly wages of Rs.4,000/- p.m. On

23.08.2005, the deceased was waiting near fire station at

Tadipartri along with said Tata Sumo bearing No.GA 02 A 9603 to

attend the personal work of respondent No.4 herein. In the

meanwhile, some unknown persons came and engaged the said

vehicle on hire and proceeded towards Guntakal Town and on the

next day the dead body of the deceased was found near

Bhogalakatta under Yadiki Police Limits. As the deceased died

during and in the course of employment, the applicants filed

application under W.C. claiming compensation.

4. The respondent Nos.4 and 5 herein set ex parte.

5. Counter was filed by the insurer/appellant denying the

liability stating that there is no employer and employee

relationship; that the deceased was not died during the course of

employment; that the deceased has no valid driving license and

prays to dismiss the application.

6. The Commissioner settled the following issues for enquiry

basing on the material:

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 an in the course of his employment resulting his death?

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

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

4.What is the amount of compensation payable to the applicants? and

5.Who are liable to pay compensation?

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

to 3 were examined and Exs.A.1 to A.6 were marked. On behalf of

the appellant/insurer, R.W.1 was examined and Ex.B.1 was

marked.

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

was a driver worked under respondent Nos.4 and 5 herein in their

vehicle bearing No.GA 02A 9603 and a workman as per the

provisions of the Act, who died by way of murder arising out of and

in the course of his employment and as the policy was in force, at

the time of incident, directed the appellant and respondent Nos.4

and 5 herein to deposit the compensation amount of Rs.3,06,947/-

and the stamp duty of Rs.614/- by means of a demand draft drawn

in favour of Commissioner for Workmen's Compensation and the

Joint Commissioner of Labour, Kurnool, within thirty (30) days from

the date of receipt of this order and further ordered that if they

fails to deposit the compensation amount within the stipulated

time, they shall be liable to pay penalty under Section 4(A)3 of the

Act.

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

preferred by the applicant.

10. Heard Sri N.Rama Krishna, learned counsel for the appellant

and Sri M.Karibasaiah, learned counsel for the respondent Nos.1 to

3 herein/applicants.

11. Now, the following points arise for determination:

1. Whether there is any employer and employee relationship between insured and deceased ?

2. Whether the Workmen's Compensation Act applies to a person, who was murdered in an incident occurred during and in the course of employment ?

3. Whether the deceased having valid driving license at the time of incident, if so the order of the Commissioner is correct in making the appellant liable to pay compensation ? and

4. To what relief ?

12. POINT No.1:

The undisputed facts found from the record placed before

this Court is that the applicants are wife and children of the

deceased, who said to be driver, aged about 35 years, worked

under respondent No.4 herein with wages of Rs.4,000/- per month.

On 23.08.2005, the deceased waiting near fire station at Tadipatri

along with Tata Sumo bearing No.GA 02 A 9603 to go to personal

work of the 4th respondent herein, who is owner of the said vehicle

and in the meanwhile some unknown persons came and engaged

the vehicle on heir and proceeded towards Guntakal Town and ne

the next day the dead body of the deceased was found near

Bhogalakatta under Yadiki Police Limits and on information a case

in Cr.No.42 of 2005 was registered.

13. The applicants filed attested copies of F.I.R., post mortem

report, inquest report and copy of legal notice, which was issued

to appellant and respondent Nos.4 and 5 herein and got marked

the same as Exs.A.1 to A.4.

14. It is also placed on record that the respondent No.5 herein

sold the said vehicle to respondent No.4 herein and that the 4 th

respondent herein said to have been informed to the

appellant/insurer herein about purchase of the vehicle bearing

No.GA 02 A 9603.

15. It is the contention of the learned counsel for the appellant

that initially the applicants orally approached the opposite parties

for compensation and thereafter got issued legal notice as the

issue was not settled and filed present W.C.No.29 of 2006. The

appellant filed counter denying the material allegations and seeks

for dismissal of the application on the ground of misjoinder, proof

regarding employment, there is no valid license to the deceased

and thereby the insurer is not liable to pay any compensation.

16. The aspect of whether the deceased was a workmen as per

the provisions of Workmen's Compensation Act at the time of

incident is concerned, the 4th respondent herein, who is owner of

the vehicle as A.W.3 categorically stated that he is the owner of

the vehicle bearing No.GA 02 A 9603 and the deceased was working

under him as driver of the said jeep with a wage of Rs.4,500/- per

month and he was murdered accidentally during the course of

employment and Yadiki Police informed him about the death of

deceased and when the applicants approached him for

compensation, he informed them to proceed legally and since the

policy is in force as on the date, the insurance company is liable to

pay compensation.

17. No doubt, the 4th respondent herein was cross examined at

length by the insurer and he deposed during the cross examination

that he purchased the vehicle from one Nagi Reddy, but he has not

taken any agreement for sale of the vehicle and he appointed the

deceased as driver of the vehicle by paying Rs.4,500/- per month

towards salary and he consistently says that he informed to the

insurance company for transfer of policy in his name after

purchase of the vehicle and he also informed the appellant that his

driver was murdered by unknown persons. So the evidence of

respondent No.4 is crystal clear that the deceased was workmen as

per the provisions of Workmen's Compensation Act, 1923 under the

4th respondent herein. Moreover, no contra evidence is placed by

the appellant/insurer before this Court to deny the case of the

applicants. Thus, this point is answered in favour of the applicants

and against the appellant herein.

18. POINT No.2:

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

point No.1, as stated supra, the deceased was working as driver in

the vehicle belonging to the 4th respondent herein and on

24.08.2005, he was found murdered by unknown persons. The

material placed on record under Exs.A.1 to A.3 categorically shows

that the incident occurred during and in the course of employment

and there is employer and employee relationship between the 4th

respondent herein and deceased. Now there is any point in

deciding the liability of the insurance company, when the deceased

was murdered by unknown persons during and in the course of

employment. For which the applicants relied upon a decision of

the Hon'ble Supreme Court between Rita Devi and others v.

New India Assurance Company Limited and another 1, wherein at

paragraph No.10 held as follows:

10.The question, therefore, is can a murder be an accident in any given case? There is no doubt that murder, as it is understood, in the common parlance is a felonious act where

1 2000 ACJ 801

death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing. But there are also instances where murder can be by accident on a given set of facts. The difference between a murder which is not an accident and a murder which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.

19. From the above it is clear that there is a difference between

a 'murder', which is not an accident, and a 'murder' which is an

accident depends on the proximity of the cause of such murder. If

the dominant intention of the act of felony is to kill any particular

person then such killing is not an accidental murder but is a

murder simpliciter, while if the cause of murder or act of murder

was originally not intended and the same was caused in

furtherance of any other felonious act then such murder is an

accidental murder.

20. In the case on hand, while the deceased was working as

driver in the above said vehicle and while he was on duty he was

taken by unknown persons and thereafter committed murder

without any reason and no reasons were forthcoming for

committing such murder and such murder is during and in the

course of employment when the deceased proceeded on heir on

23.08.2005. Therefore, the deceased was working as driver on the

vehicle under the 4th respondent herein and the said vehicle

belongs to respondent Nos.4 and 5 herein and the murder of the

deceased which is an accidental murder occurred during and in the

course of employment. Thus, this point is answered against the

appellant and in favour of the applicants.

21. POINT NO.3:

Admittedly, so far as driving license of the deceased is

concerned, it is the specific contention of the appellant that the

deceased has no driving license at all. Though the insurer has

taken such a plea that the deceased did not have valid and

effective driving license to drive the vehicle bearing No.GA 02 A

9603 as on the date of the incident, but it is not lead under

evidence in support of its contention. No doubt, under Section

149(2)(ii)(a) of the Act, the Insurance Company can avoid its

liability if a driver of a vehicle is not duly licensed. Section 5 of

the Act shows no owner or person in-charge of a motor vehicle

shall cause or permit any person who does not satisfy the

provisions of the Section 3 or Section 4 to drive the vehicle. But it

is settled law that mere absence, fake or invalid driving license or

disqualification of the driver for driving at the relevant time, are

not in themselves defence available to the insurer against either

the insured or the third parties. To avoid its liability towards

insured, the insurer has to prove that the insured was guilty of the

negligence and failed to exercise reasonable care in the matter to

fulfilling the condition of the policy regarding use of vehicles by

duly licensed driver or one who was not qualified to driver at the

relevant time.

22. However, the license of the deceased has no role at all in

this case, as the incident was not happened while driving the

vehicle. Therefore, the defence of the insurer in this regard has no

locus. Thus, this point is answered against the appellant and in

favour of the applicants.

23. POINT NO.4:

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

Commissioner rightly gave a finding that as the deceased was

murdered, which is an accidental murder, during and in the course

of employment and as the Ex.B.1 policy is in force by the date of

incident, the appellant and respondent Nos.4 and 5 are jointly

liable to pay compensation to the applicants.

24. Having regard to the above, 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.

25. 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, Anantapur in

W.C.No.29 of 2006 dated 28.01.2010. The balance amount, if any,

in deposit payable to the respondent Nos.1 to 3(applicants) herein

shall be released by the Commissioner without insisting for any

security. There shall be no order as to costs.

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

27. Miscellaneous petitions pending if any, stand closed.

___________________ VUTUKURU SRINIVAS, J Date: 15.11.2022 Krs

THE HON'BLE SRI JUSTICE VUTUKURU SRINIVAS

CIVIL MISCELLANEOUS APPEAL No. 637 of 2010

DATE: 15.11.2022

Krs