Andhra Pradesh High Court - Amravati
The Orietnal Insurance Company Ltd vs Shaik Sabeera 3 Ors on 26 June, 2024
1
APHC010037372013
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3460]
(Special Original Jurisdiction)
WEDNESDAY, THE TWENTY SIXTH DAY OF JUNE
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL MISCELLANEOUS APPEAL NO: 727/2013
Between:
The Oriental Insurance Company Ltd ...APPELLANT
AND
Shaik Sabeera 3 Ors and Others ...RESPONDENT(S)
Counsel for the Appellant:
1. A ANASUYA
Counsel for the Respondent(S):
1. N SASIKALA
The Court made the following:
JUDGMENT:
1. The present C.M.A is filed under Section 30 of Employees'
Compensation Act, 1923 questioning the order dated 24.07.2008 passed
in W.C.No.7/2004 by the Commissioner for Workmen's Compensation
and Assistant Commissioner of Labour, Anantapur.
2. The facts leading to this appeal are as follows:-
One Shaik Ibrahim was working as a driver in an auto bearing
No.AP 02-U-5524 belonging to O.P.No.I. The said auto was insured with
the appellant/O.P.No.II. The deceased was being paid Rs.3,500/- per
month. On 23.09.2003, while driving the vehicle, the deceased met with
an accident as another vehicle came in opposite direction near
Thirunampalli Bus stop in a rash and negligent manner and caused the
auto to lose control and in the process, the auto turned turtle and the
deceased died on the particular spot. A criminal case was registered
under Section 304-A IPC against the deceased himself vide
Cr.No.42/2003 before Yadiki P.S., The claim was filed by the mother and
the sister of the deceased for Rs.3,40,000/-.
3. The Commissioner on the basis of the pleadings framed four issues
and marked Exs.A.1 to A.5 in evidence on behalf of the claimants and
Exs.B.1 and B.2 on behalf of the respondents. The claimants examined
as many as A.W.1, A.W.2 and A.W.3 while the insurance company
examined one C.V.S.S. Prasad on its behalf.
4. The insurance policy is not in dispute and the dispute was with
regard to lack of employer and employee relationship as the deceased
was none other than the son of O.P.No.I and the claim was filed by the
wife and daughters of O.P.No.I. The other ground which was urged was
that the deceased was not having valid driving license.
5. The Commissioner taking into consideration the submissions
made, allowed the claim and directed the respondents to pay
Rs.3,19,137/- to the claimants after fixing the monthly salary of the
deceased at the rate of minimum wages prescribed by the Government
i.e. Rs.2,834/- per month as against claimed salary of Rs.3,500/-. Hence,
the present C.M.A.
6. Heard Smt.Anasuya, learned counsel for the appellant/insurance
company and Smt.N.Sasikala, learned counsel for the
respondents/claimants.
7. The fact that the deceased was the son of O.P.No.I cannot be a
basis to say that there is no employer and employee relationship amongst
them. It is not the case of the appellant/insurance company that the
deceased was driving the vehicle free of cost without taking any money
from O.P.No.I. It is of common knowledge that notwithstanding the father
and son relationship, some amount would be paid to the deceased and
that amount qualifies for the employer-employee relationship and this
Court does not find any illegality in the claim made by the dependents of
the deceased.
8. As regards the non-filing of driving license, the Commissioner relied
on the Judgment of the Hon'ble Supreme Court in National Insurance
Company Ltd. vs Swaran Singh1 and opined that the burden of proof
being on the insurance company, they have not come forward to
discharge the initial onus and therefore after rejecting the plea of the
insurance company, had awarded compensation by partly allowing the
W.C.No.7/2004. Though, the law on this aspect had changed
subsequently, but the above referred judgment of Hon'ble Supreme Court
was holding the field as on the date of award by the commissioner.
Now, to remand the case and to call upon the claimants to file the driving
licence of the deceased at this length of time would be an improbability as
more than 21 years have lapsed from the date of fatal accident.
9. Therefore, this Court does not find any merit in the appeal and the
Civil Miscellaneous Appeal stands dismissed.
There shall be no order as to costs. As a sequel, pending
applications, if any, shall stand closed.
__________________
NYAPATHY VIJAY, J
Date: 26.06.2024
IS
2004 (3) SCC 297
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
CIVIL MISCELLANEOUS APPEAL NO: 727/2013
Date: 26.06.2024
IS
