National Ins Co Ltd., ... vs Ram Palli Guirunadha Rao, ...
2022 Latest Caselaw 7477 AP

       THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI


        CIVIL MISCELLANEOUS APPEAL No.166 of 2016


JUDGMENT:-

       This   Civil   Miscellaneous    Appeal    is   filed   by   National

Insurance     Company       Ltd.   aggrieved    by    the     award   dated

24.12.2014     passed    in   W.C.No.07    of 2013       on    the file   of

Commissioner under Employees' (Workmen's) Compensation Act,

1923    and     Assistant     Commissioner       of   labour,      Circle-II,

Visakhapatnam.


2.     The brief facts of the case are that parents of the deceased

filed W.C.No.7 of 2013 claiming compensation of Rs.8,11,122/- on

account of death of their son in an accident. The deceased was

working as driver in GVMC, Visakhapatnam. On 22.07.2013, the

deceased while on duty after dropping duty Doctor in jeep bearing

No.AP 31 BR 6911 proceeded from Sheela Nagar towards Convent

junction, when he reached near INS Dega Port connectivity road,

Malkapuram, Visakhapatnam, the vehicle accidently dashed the

divider. As a result, deceased received grievous injuries all over

his body. He succumbed to injuries on 25.07.2013 while
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undergoing treatment. The vehicle belongs to opposite party -I

and it is insured with opposite party-II. As the death took place

during employment and out of employment, both the opposite

parties are liable to pay compensation. Hence, filed petition

claiming compensation.


3.      Opposite party-I filed counter wherein it was admitted that

the deceased died in accident which occurred after dropping the

Medical officer. However, it is submitted that the deceased drove

the vehicle in a rash and negligent manner, as a result of which

accident occurred. It is stated that the vehicle was insured with

the opposite party-II and the policy was in force as on the date of

accident.     Thus,   opposite   party-II   alone   is   liable   to   pay

compensation. Hence, prayed for dismissal of claim petition

against it.


4.      Opposite party-II filed counter denying all the averments of

the claim petition and put the applicants to strict proof of the

same.


5.      Basing on the above pleadings, Commissioner framed the

following issues for trial:
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     1. Whether there exists the employer and employee relationship
        between the opposite party-I and the deceased?

     2. If such relation exists, whether the deceased died due to the
        accident occurred during the course and out of employment or
        not?

     3. If so what amount of compensation, the applicants are entitled to
        receive and who has to pay?

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

AW1 besides examining AWs 2 to 4 and Exs.A1 to A8 were

marked. Assistant Manager of National Insurance Company was

examined as RW1 and Exs.B1 and B2 were marked on behalf of

opposite party-II.


7.      Upon considering the evidence adduced on either side,

Commissioner passed the award directing opposite parties I and II

to jointly and severally pay compensation of Rs.7,18,971/- by way

of demand draft within thirty days from the date of the award.

Aggrieved by the same, the present appeal is filed by opposite

party-II.


8.      Heard learned counsel for the appellant and learned counsel

for respondent Nos.1 and 2.

9. Learned counsel for the appellant would submit that

compensation is awarded without their being documentary

evidence with regard to income and age of the deceased. He would

further submit that applicants are not entitled for compensation

in the absence of documentary evidence which establish

employment of the deceased under opposite part No.1. Hence, he

prays to allow the appeal.

10. Learned counsel for respondent Nos.1 and 2 supported the

award passed by the Commissioner.

11. While admitting the appeal the following substantial

questions of law are formulated:

1. Whether the deceased Rampalli Amarnath was a workmen U/s (1) (N) of the Workmen Compensation Act at the time of his death?

2. Whether the deceased had died as a result of accident arising out of and in the course of employment?

3. Whether the commissioner is right in ordering the compensation for the death of the deceased when there is no proof with regard to employer and employee relationship between the deceased and opposite party No.1?

Substantial Questions 1 to 3

Since these questions of law are interrelated, they are

answered together.

12. One of the contentions raised by learned counsel for the

appellant is that applicants failed to establish the employment of

the deceased under opposite party No.1 and consequentially failed

to establish that the death was during the course of employment

and out of the employment. In fact, in the counter filed by

opposite party-I, it was admitted that on 22.07.2013 the accident

took place while returning after dropping medical officer. Further

in the cross-examination of AW1, he deposed that deceased has

been working as such since three and half years prior to the

accident. Thus, a perusal of the pleadings and depositions of the

other witnesses i.e. AWs2 to 4 would prove that the deceased was

working as driver of the subject vehicle, which belongs to opposite

party -I. In Ex.A1/FIR, the avocation of the deceased was shown

as driver of jeep bearing No.AP 31 BR 6911 and in Ex.A3, it is

mentioned that the deceased is driver of Jeep in GVMC. Thus, the

documentary evidence also supports the case of the applicants.

13. Thus, in view of the above, it can be concluded that

deceased is employee under opposite party-I and that he died out

of the employment and during the course of employment.

14. Coming to the contention raised by learned counsel for the

appellant with regard to income of the deceased, though the

applicants pleaded that the deceased was earning Rs.7,800/-, no

documentary evidence was produced. Therefore, the learned

Commissioner has taken the income of the deceased as

Rs.6,982/- per month as per G.O.Ms.No.90 of LET & F (Lab-II)

Dept, dated 20.08.2007. Hence, the contention of learned counsel

for the appellant that compensation was awarded without there

being any proof of income and age cannot be accepted.

15. The subsistence of insurance policy and coverage of risk of

the deceased are not in dispute.

16. Therefore, the statutory requirements to claim compensation

under W.C. Act i.e. 1) employer-employee relationship; 2) that

accident occurs during and out of course of employment and 3)

policy should cover the risk of the workman in question are

satisfied. Thus, learned Commissioner has rightly concluded that

the death of the deceased took place during and out of

employment.

These substantial questions of law are answered

accordingly.

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

Court and the same is liable to be dismissed.

18. Accordingly, this Civil Miscellaneous Appeal is dismissed

confirming the award dated 24.12.2014 passed in W.C.No.07 of

2013 on the file of Commissioner under Employees' (Workmen's)

Compensation Act, 1923 and Assistant Commissioner of labour,

Circle-II, Visakhapatnam.

Miscellaneous Petitions pending, if any, shall stand closed.

________________________________ JUSTICE SUBBA REDDY SATTI

Date: 29.09.2022 ikn

THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

C.M.A.No.116 of 2016

Date: 29.09.2022

ikn