Shriram Insurance Co. Ltd., vs Bandaru Narayanamma 3 Others
2022 Latest Caselaw 7405 AP

       THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

       CIVIL MISCELLANEOUS APPEAL No.186 of 2017

JUDGMENT:-

      This   Civil   Miscellaneous   Appeal   is   filed   by   Shriram

Insurance Co. Ltd. aggrieved by the award dated 29.09.2015

passed in W.C.No.07 of 2012 on the file of Commissioner for

Workmen's Compensation and the Assistant Commissioner of

Labour, Dharmavaram.


2.    The brief facts of the case are that wife and children of the

deceased filed W.C.No.07 of 2012 claiming compensation of

Rs.10,00,000/- on account of death of the deceased due to his

involvement in an accident. The deceased worked as driver of van

bearing No.AP 02 W 4863, belongs to opposite party No.1. On

26.09.2011, the deceased drove the vehicle loaded with oranges

from Battalapalli to Devanahalli on Bangalore-Ballery road. In the

middle of the journey, the deceased stopped the vehicle on the

extreme left side of the road and went to Dhaba and while he was

returning from the dhaba, rider of scooter bearing No.KA 04 1029

drove it in a rash and negligent manner and hit the deceased, due

to   which   the     deceased   sustained   serious    head     injuries.
                                     2

Immediately he was shifted to Devanahallil hospital and from

there he was referred to NIMHANS, Bangalore. The deceased died

on the way to NIMHANS hospital. As the deceased died during the

course of employment under opposite party No.1, the present

claim is filed.


3.     Opposite party No.1 remained exparte before the learned

Commissioner.


4.     Opposite party No.2 filed counter denying age, employment

of the deceased and employer and employee relationship between

the deceased and opposite party No.1. Eventually, prayed to

dismiss the claim application.


5.     Basing on the above pleadings, Commissioner framed the

following issues for trial:


     1. Whether the deceased was an employee as per the provisions of
       the Workmen Compensation Act, 1923 and he met with the
       accident arising out of and in course of his employment resulting
       to death?

     2. What was the age of the deceased employee at the time of
       accident?
                                     3

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

     4. What is the amount of compensation payable?

     5. Who are liable to pay compensation?

6.      On behalf of the applicants, applicant No.1 was examined as

AW1 besides examining cleaner of van, who is also witness as

AW2 and Exs.A1 to A8 were marked. Employee of the Insurance

Company was examined as RW1 and Ex.B1 is filed through her.


7.      After considering the evidence adduced on either side,

Commissioner passed the award directing opposite party Nos.1

and 2 to jointly and severally pay compensation of Rs.4,84,375/-

within thirty days from the date of the award by way of demand

draft. Aggrieved by the same, the present appeal is filed by

opposite party No.2.


8.      Heard learned counsel for the appellants and learned

counsel for respondent No.1 to 3.

9. Learned counsel for the appellant would submit that

Commissioner failed to appreciate that applicants are not entitled

for compensation under W.C. Act as they failed to prove employer

and employee relationship either by examining opposite party

No.1 or by adducing cogent evidence. He would submit that

opposite part No.1 failed to file counter and give evidence, as such

it is not established that deceased was workman under owner of

the vehicle and died in the course of employment.

10. He would further submit that applicants failed to prove age,

income and occupation of the deceased and the compensation was

awarded without there being any evidence and by wrongly

assessing monthly wage as Rs.5,183.25/-.

11. Learned counsel would further submit that the deceased

was not holding any driving license to drive van and it is basic

duty of the employer or the applicants who claim that the

deceased was working as driver of the insured vehicle. He would

further submit that the owner of van did not choose to contest the

claim before the Commissioner and did not adduce any evidence

that deceased was under his employment.

12. Learned counsel for the appellant would submit that

insurance company can be made liable to pay the compensation

only if the conditions of policy are not violated, whereas in this

case, the deceased was not holding valid driving license, as such

insurance company is not liable to pay compensation to the

applicants. He would further submit that the Hon'ble Apex Court

time and again held that when conditions of policy are violated,

fixing liability on insurance company is bad and Commissioner

erred in fixing liability on insurance company instead of fixing

liability on opposite party No.1 alone. Hence, he prays to allow the

appeal.

13. Learned counsel for respondent Nos.1 to 3 would submit

that opposite party No.1 is owner of van which was driven by the

deceased and the relationship between opposite party and the

deceased as employer and employee is established through the

cross-examination of AW2, wherein he stated that he is working

as cleaner of the van and that deceased was working as driver.

Learned counsel would submit that AW2 further deposed that the

deceased was working as driver under opposite party No.1 since

three years prior to the accident. On the date of accident they

were transporting oranges from Batthalapalli to Devanahalli.

Thus, learned counsel for respondent Nos.1 to 3 would submit

that the death of the deceased was occurred during course of

employment and out of employment, which are necessary

requirements to be proved in the claim filed under W.C. Act.

14. Learned counsel would further submits that in view of the

decision of the Hon'ble Apex Court reported in National

Insurance Company Limited v. Swaran Singh 1, the burden lies

on the insurance company to prove that the driver was not having

valid driving license at the time of accident. He would submit in

the present case insurance company failed to prove the burden

lying on it. Hence, there is no illegality in the award impugned.

Therefore, he prays to dismiss the appeal.

15. While admitting the appeal the following substantial

questions of law are formulated:

1. Whether the Tribunal below can assume employment of the deceased with respondent No.4/O.P.No.1 and the respondent No.4 admittedly failed to appear and contest the case and as the respondent Nos.1 to 3 failed to file documents to prove employment of the deceased and wage of the deceased with the respondent No.4/O.P.No.1?

2004 (2) ALD 36

2. Whether there was any material on record except for self serving statement of the applicants would entitle the authority/Workmen Commissioner to pass the order under challenge?

3. Whether the deceased met with accident during the course of employment and out of the employment was established on the basis of material available?

4. Whether the authority/Workmen Commissioner, on the basis of Minimum Wages Act, by assuming that the deceased was driver without calling for the records from respondent No.4 for non-production of record?

5. Whether the pleadings if consider would prove the perverse order of the authority/Workmen Commissioner i.e. whether the deceased met with the accident during the course of employment and out of the employment?

6. Whether Workmen Commissioner is justified in granting compensation of Rs.4,84,375/- without there being any documentary evidence to prove the wages of the deceased?

7. Whether Workmen Commissioner is justified in granting compensation without following principles laid down in Workmen Compensation Act?

8. Whether Workmen Compensation is justified in granting compensation when the terms and

conditions of the policy violated, the deceased was not holding any driving license?

Substantial Questions 1 to 3

Since these questions of law are interrelated, they are

answered together.

16. Statutory requirements to be proved in claims of this nature

are that 1) employer-employee relationship; 2) accident arose out

of employment and during the course of employment and 3) policy

issued by the insurer covers the risk of the workman in question.

17. Coming to the facts of the case, insurance company is

disputing the relationship of employer and employee between the

opposite party No.1 and deceased. By examining AW2 cleaner of

vehicle, claimants proved that deceased was working as driver of

vehicle on the date of accident. In fact, A.W.2 deposed that

deceased was working as driver under opposite party No.1 since

three years prior to the accident. In the absence of any contra

evidence the finding recorded by learned Commissioner that the

deceased was working as driver does not brook interference from

Court. In fact, learned Commissioner also considered Exs.A1 to

A4, wherein the occupation of the deceased was shown as driver

under opposite party No.1. Therefore, first requirement of

employer and employee relationship is proved.

18. With regard to the second requirement a perusal of cross-

examination of AW2 discloses that on the date of accident they

were transporting oranges from Batthalapalli to Devanahalli.

Thus, it is clear that the death of the deceased occurred during

course of employment and out of employment

19. The other contention raised by learned counsel for the

appellant is that the deceased did not possess valid driving license

at the time of alleged accident. The burden of proof lies on

insurance company to prove that driver has no driving license and

the employer was guilty of negligence in allowing driving the

vehicle by an unlicensed driver and insurance company cannot

avoid its liability unless the breach of conditions of policy by the

driver was so fundamental as to the cause of the accident. No

evidence was let in by the Company. Mere pleading is not

sufficient. Pleading should be supported by evidence. Thus

appellant's contention regarding driving license falls to ground.

20. As there is no dispute with regard to existence of insurance

policy and as coverage of risk of the deceased is also not disputed,

insurance company cannot escape from its liability.

21. Apart from the above, learned counsel for the appellant

raised a contention with regard to income of the deceased. In this

regard though the applicants claimed the income of deceased as

Rs.8,000/- per month, as there was no documentary evidence in

proof of the same, Commissioner took the income of the deceased

as Rs.5,183.25 paise, which is in line with the minimum wages

fixed by the Government vide G.O.Ms.No.83 LET & F (Lab-II)

Department, dated 22.11.2006 and published in A.P. Gazette part

I No.723, dated 04.12.2006, to the light vehicle driver.

22. Learned Commissioner, after considering all the aspects

basing on oral and documentary evidence came to the conclusion

that the death of the deceased took place while he was on duty.

Nothing contra was produced or elicited during the course of cross

examination of A.W.1 or A.W.2. The statutory requirements of

relationship of employer and employee, occurrence of death of the

deceased out of employment and during course of employment

and coverage of risk under insurance policy are proved.

These substantial questions of law are answered

accordingly.

23. There are no grounds, which brook interference of this

Court and the same is liable to be dismissed.

24. Accordingly, the Civil Miscellaneous Appeal is dismissed

confirming the Award dated 29.09.2015 passed in W.C.No.07 of

2012 on the file of Commissioner for Workmen's Compensation

and the Assistant Commissioner of Labour, Dharmavaram. No

costs.

Miscellaneous Petitions pending, if any, shall stand closed.

________________________________ JUSTICE SUBBA REDDY SATTI

Date: 27.09.2022 ikn

THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

C.M.A.No.186 of 2017

Date: 27.09.2022

ikn