The Oriental Ins Comp Ltd, ... vs R Sreenu Guntur Dist Amp 4 Others
2022 Latest Caselaw 7527 AP

     THE HON'BLE SRI JUSTICE SUBBA REDDY SATTI

       CIVIL MISCELLANEOUS APPEAL No.39 of 2016

JUDGMENT:

The Oriental Insurance Company Limited, represented

by its Divisional Manager, filed the above Civil Miscellaneous

Appeal against order dated 28.05.2015 in W.C.Case No.6 of

2010 on the file of Commissioner for Employees'

Compensation Act, 1923-cum-Assistant Commissioner of

Labour, Ongole.

2. Parties to this judgment are referred to as per their

array in W.C.Case No.6 of 2010.

3. Applicants filed the case against the respondents

claiming Rs.4,00,000/- towards compensation with interest

at 12% p.a. from the date of death till realization and for

costs etc., for the death of Rayapudi Guravaiah, while

working as cleaner in the lorry bearing No.AP27 V 8277

belonged to 2nd opposite party under Employees'

Compensation Act, 1923 (for short "the Act 1923").

4. Applicants contended interalia that deceased Rayapudi

Guravaiah, brother of applicants, while working as cleaner in

Lorry bearing No.AP27 V 8277 of 2nd opposite party, on

11.07.2009 at 5.30 a.m. when the lorry reached Nalgonda,

first opposite party, drove lorry in a rash and negligent

manner and dashed the lorry bearing No.AP37 T 6858, which

was coming in opposite direction, as a result, both lorries

were damaged. The cleaner of lorry bearing No.AP27 V 8277

sustained injuries and he was shifted to Government

Headquarters Hospital, Nalgonda in 108 ambulance and

while taking treatment, he died at 7.00 a.m. on 11.07.2009 in

the hospital. It was averred that the accident was occurred

out of employment and during the course of employment. 2nd

opposite party is the owner of the vehicle, which was insured

with 3rd opposite party. Therefore, respondents 2 and 3 are

liable to pay compensation. The deceased is aged about 28

years and drawing Rs.3,500/- per month towards salary.

5. 2nd Opposite Party filed counter and contended interalia

that he is the owner of lorry bearing No.AP27 V 8277 and it

was insured with 3rd opposite party vide policy

No.432900/31/2009/3824 for the period from 22.03.2009 to

21.03.2010; that Kandimalla Narasimha Rao is the driver of

the lorry; that deceased never worked under his employment

and there is no employee and employer relationship; that

applicants are major brothers of deceased and they are not

dependants, as such they are not entitled for compensation

and thus, prayed the Court to dismiss the application.

6. 3rd Opposite Party filed counter and contended interalia

that the applicants are major brothers of deceased and they

are not dependants and hence, they are not entitled for any

compensation for the death of their brother; that the accident

was not occurred during the course of employment; that as

per Section 134 (c) of the Motor Vehicles Act, 1988 (for short

"the Act 1988"), it is mandatory duty of the insured to

furnish the particulars of policy, date, time and place of

accident, particulars of deceased and the name of driver and

particulars of driving license, however, 2nd opposite party did

not comply with the statutory demand; that as per Section

158 (6) of the Act 1988, it is mandatory duty of the concerned

police station to furnish all the relevant documents to the

concerned insurer within 30 days from the date of

information of accident, however no information was

furnished by the Nalgonda II Town Police Station and

eventually, prayed to dismiss the application.

7. Basing on the above pleadings, the tribunal framed the

following points for consideration:

(1) Whether the applicants are entitled for compensation as claimed by the applicants? (2) Who are liable to pay compensation? (3) To what relief the applicants are entitled to?

8. On behalf of applicants, 1st applicant was examined as

A.W.1 and Exs.A-1 and A-2 were marked. 2nd Opposite party

was examined as R.W.1 and the General Manager of 3rd

opposite party was examined as R.W.2. Copy of policy was

marked as Ex.B-1.

9. Lower tribunal while dismissing the claim against the

first opposite party (driver of vehicle), granted compensation

of Rs.3,70,783/- and directed the 2nd and 3rd opposite parties

to pay the amount jointly and severally within 30 days and in

case of failure, interest at 12% p.a. shall be levied on the

awarded amount from the date of accident till realization.

Aggrieved by the said order, the above appeal is filed.

10. Heard Mrs.A.Jayanthi, learned counsel for appellant

and Sri K.Koutilya, learned counsel for respondents 1 to 3

and none appeared for the respondents 4 and 5.

11. Learned counsel for appellant would submit that the

applicants are not dependants as per Section 2 (d) of the Act

1923 and hence, they are not entitled for compensation. She

would submit that R.W.1, owner of vehicle denied his

engaging the deceased as cleaner of lorry and hence, in the

absence of any evidence, deceased cannot be treated as

employee of 2nd opposite party. She would also submit that

since there is no employee and employer relationship,

applicants are not entitled for any compensation. She would

further submit that there is no evidence on record to show

that applicants are depending on the income of deceased and

thus, prayed the Court to allow the appeal.

12. Learned counsel for respondents 1 to 3 would submit

that evidence on record would establish that deceased was

engaged as a cleaner of 2nd opposite party and the deceased

during the employment and out of the course of employment

and hence, considering all the aspects, tribunal awarded the

compensation and thus, prayed the Court to dismiss the

appeal.

13. The following substantial questions of law arise for

consideration:

(1) Whether the deceased Rayapudi Guravaiah died during the employment and out of the course of employment?

(2) Whether the applicants are dependants and hence, they are entitled for compensation under the provisions of the Act 1923?

14. Applicants are brothers of deceased Guravaiah, died on

11.07.2009 at 7.00 a.m. due to accident involving lorry

bearing No.AP27 V 8277 with another lorry bearing No.AP37

T 6858. In fact, the driver, who was driving the lorry bearing

No.AP37 T 6858 gave complaint to police. The cleaner of lorry

vehicle bearing No. AP 27 V 8277 was shifted to Government

Headquarters Hospital, Nalgonda in 108 ambulance and

while taking treatment, he succumbed to injuries.

15. Though it was contended by 2nd opposite party that he

did not engage the deceased as cleaner, the evidence on

record would disclose that deceased died due to accident on

11.07.2009. The complaint was lodged by the opposite lorry

driver bearing No.AP37 T 6858. According to the complaint,

cleaner of lorry bearing No.AP27 V 8277 sustained injuries

due to accident and the driver of lorry bearing No.AP27 V

8277 drove the same in a rash and negligent manner. The

evidence of R.W.1 has to be considered cautiously. During

the cross examination, R.W.1 deposed that he is the owner of

lorry bearing No.AP27 V 8277 and after the accident, he sold

away the vehicle. He deposed that on the date of accident,

Kandimalla Narasimha Rao was the driver on duty, however,

he deposed that he does not know the deceased and he has

no acquaintance. He further deposed that he sent one Srinu

as cleaner on that vehicle.

16. It is pertinent to mention here that having deposed that

he sent Srinu as cleaner of the vehicle, he further deposed

that he does not know the particulars of said Srinu; usually,

he used to send available persons, anybody as cleaner and

he is not particular. This part of the cross examination of

R.W.1, in the considered opinion of the Court, is only an

afterthought to deny his liability, being employer. Going by

the documentary evidence, Ex.X-1 F.I.R, this Court is of the

opinion that deceased was engaged as cleaner by R.W.1 and

he died due to accident on 11.07.2009 out of employment

and during the course of employment. This point is answered

accordingly.

17. Whether the applicants are entitled to claim

compensation as dependants?

18. 'Dependant' is defined under Section 2 (d) of the Act

1923, which reads thus:

(d) "dependant" means any of the following relatives of a deceased workman, namely-

            (i)     a widow, a minor [legitimate or adopted] son,
                    an   unmarried     [legitimate  or  adopted]
                    daughter, or a widowed mother; and

            (ii)    if wholly dependant on the earnings of the
                    workman at the time of his death, a son or a

daughter who has attained the age of 18 years and who is infirm;

(iii) if wholly or in part dependant on the earnings of the workman at the time of his death-

            (a)     a widower,

            (b)     a parent other than a widowed mother,

            (c)     a minor illegitimate son, an unmarried

illegitimate daughter or a daughter [legitimate or illegitimate or adopted] if married and a minor or if widowed and a minor,

(d) a minor brother or an unmarried sister or a widowed sister if a minor,

(e) a widowed daughter-in-law,

(f) a minor child of a pre-deceased son,

(g) a minor child of a pre-deceased daughter where no parent of the child is alive, or

(h) a paternal grandparent if no parent of the workman is alive];

Explanation.- For the purposes of sub-clause (ii) and items

(f) and (g) of sub-clause (iii), reference to a son, daughter or child include an adopted son, daughter or child respectively;

19. A perusal of the above definition makes it clear that a

widow, a minor [legitimate or adopted] son, an unmarried

[legitimate or adopted] daughter, or a widowed mother, in the

first place are to be shown as dependants. As per Clause (ii)

major son and daughter are also been shown as dependants,

if they are infirm. As per Clause (iii), some more persons

were also shown as dependants. However major brothers are

not included as dependants. Though the appellant and 2nd

opposite party raised contention before the lower tribunal

stating that applicants are not dependants as per Section 2

(d) of the Act 1923, however, for the reasons best known, in

spite of pleadings and cross examination of A.W.1, lower

tribunal failed to consider the said aspect, which goes to the

root of the matter.

20. During the evidence of A.W.1, he deposed that

deceased died unmarried and parents pre-deceased him. No

evidence was produced to show that applicants 1 to 3 are

residing along with deceased and depend upon the income of

the deceased. He further deposed that applicants 1 to 3 are

residing at Ravavaram and deceased Guravaiah used to

reside at Chimakurthy and used to come to them after

completion of duty. He also deposed that applicants 1 to 3

are majors. The unequivocal admission made by A.W.1

makes it clear that applicants 1 to 3 are majors. Once the

applicants are majors, they cannot be termed as dependants

under Section 2 (d) of the Act 1923. Hence, the application

filed by applicants claiming compensation as dependants due

to death of Guravaiah is not maintainable. This point is

answered accordingly.

21. In view of the foregoing discussion, since the applicants

are not dependants of deceased, they are entitled to any

compensation. Thus, the appeal is liable to be allowed.

22. Accordingly, the civil miscellaneous appeal is allowed

and the order dated 28.05.2015 in W.C.Case No.6 of 2010 on

the file of Commissioner for Employees' Compensation Act,

1923-cum-Assistant Commissioner of Labour, Ongole is set

aside. No order as to costs.

This Court admitted the appeal on 03.03.2016 and

while granting stay in CMAMP No.88 of 2016 permitted the

claimants to withdraw 50% of the deposited amount on

furnishing bank guarantee for the said amount. If the

claimants withdraw the amount pursuant to the interim

order and the bank guarantee subsists, Insurance Company

is at liberty to encash the bank guarantee. If the bank

guarantee is not subsisting, appellant can recover the

amount from the owner - 5th respondent.

As a sequel, all the pending miscellaneous applications

shall stand closed.

__________________________ SUBBA REDDY SATTI, J

30th September, 2022

PVD