Andhra Pradesh High Court - Amravati
The National Insurance Co. Ltd., vs Pendluru Gangulamma 4 Others on 29 November, 2022
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
CIVIL MISCELLANEOUS APPEAL No. 163 OF 2016
JUDGMENT:
The claimants herein filed the Claim Application under
the Employees Compensation Act, 1923 and A.P. Rules 1953
seeking grant of compensation on account of death of Pendluru
Srinivasulu in a motor vehicle accident which occurred on
04.02.2009 at Kadiri-Pulivendula Ghat road. The applicants are
wife, son and parents of the deceased Pendluru Srinivasulu,
who was the driver of the lorry bearing No.KA 08 A 1099, are
the legal heirs and dependents of the deceased. The 1st opposite
party is the owner of the lorry vide vehicle bearing no. KA 08 A
1099 and the 2nd opposite party is its insurer.
2. On the instructions of the employer/1st opposite party,
the said Srinivas drove the vehicle which was loaded with bricks
from Kadiri towards Pulivendula, when the lorry reached the
ghat road, he drove the lorry carefully but due to unavoidable
circumstances the lorry fell on the road side and turned turtle,
and in the meanwhile the deceased jumped from the lorry to
escape the death, unfortunately the bricks fall on the deceased
driver due to which he met with instantaneous death.
3. As per the claim averments, the deceased was 40 years
old at the time of his death and claimants have claimed
compensation of Rs.5,00,000/- with interest @ 12% from the
date of accident. In the claim application it was further asserted
that the accident was occurred during the course of the
employment of the deceased under 1st opposite party. The
insurance company who is appellant herein was arrayed as 2nd
opposite party in the claim application before the Court of
Commissioner for Employee's Compensation and Assistant
Commissioner of Labour, Kadapa and denied the allegations
made in the petition put-forth by the applicants who are
respondents herein and further contended that the deceased is
not having valid driving licence to drive the vehicle at the
relevant point of time i.e. at the time of accident.
4. The Commissioner has framed as many as seven issues,
one such issue is that, whether Opposite Party-1 committed
breach of policy condition by allowing the deceased driver
Penduluru Sreenivasulu whose driving licence was lapsed. After
considering all the issues, the Commissioner for Employees
Compensation-cum-Assistant Commissioner of Labour, Kadapa
has allowed the application and directed to pay a compensation
of Rs.3,73,800/- with interest @ 7.5% from the date of filing of
claim application i.e. 13.04.2010 till realization besides stamp
duty of Rs.708/- fixing the liability jointly and severally. And
upholded the contentions raised by the 2nd opposite party that
the deceased has no driving licence at the time of accident but,
however, directed the insurance company to pay and recover the
said amount.
5. Aggrieved by the Order in W.C. No.13 of 2010 dated
26.09.2014, the present appeal came to be filed on the ground
that the Commissioner has erred in directing the insurance
company who is appellant herein to pay and recover the amount
which is not applicable to the employees compensation act and
relied on the judgments of the Hon'ble Supreme Court in
National Insurance Company v. Laxmi Narian Dhut 1 , National
Insurance Company Limited v. Vidhyadhar Mahariwala and
others 2 and Oriental Insurance Company Limited v. Meena
Variyal and others3 for the proposition that the pay and recover
theory is not applicable under the workman/ employee
compensation act, as the deceased does not come under third
party.
(2007) 3 SCC 700
(2008) 12 SCC 701
(2007) 5 SCC 428
7. The Hon'ble Apex Court in Beli Ram case relied on the
judgment of the Himachal Pradesh High Court in National
Insurance Company v. Hem Raj & Ors. 4 Wherein it was held
that when a person is not renewed the licence after expiry, the
insurance company is not responsible to satisfy such claim. A
reading of the judgment of Hon'ble Apex Court in Beliram's case
makes it clear that when the driver of the offence vehicle does
not possess driving licence or fail to renew the driving licence
after expiry of validity period, the insurance company is not
liable to pay compensation to the claimants.
8. In view of the judgment of the Hon'ble Apex Court in Beli
Ram case, the award passed by the Commissioner ordering pay
and recover directing the insurance company to pay at the first
instance and recover the same from the second respondent i.e.
owner of the vehicle is erroneous and liable to be set aside and
accordingly it is set aside.
9. This Court on 17.03.2015 granted stay in I.A. No.1 of
2015 (CMAMP No.302 of 2015) and on 26.02.2016 in I.A. No.1
of 2016 (CMAMP 232 of 2016) in CMA No.163 of 2016 permitted
the respondent claimants to withdraw 25% of the deposit
amount that the same shall not be recovered by the insurance
2012 ACJ 1891
company from the claimants and the respondent claimants are
entitled to recover the rest of the amount from the employer i.e.
1st opposite party.
10. With the above said direction, the Civil Miscellaneous
Appeal is allowed and order of the Commissioner for Employees
Compensation and Assistant Commissioner of Labour, Kadapa
is hereby set aside.
Miscellaneous applications pending, if any, stands closed.
_______________________________________
JUSTICE TARLADA RAJASEKHAR RAO
Date: 29-11-2022
Harin
THE HON'BLE SRI JUSTICE TARLADA RAJASEKHAR RAO
C.M.A. No. 163 of 2022
Date: 29-11-2022
Harin
