Andhra Pradesh High Court - Amravati

The United India Insurance Company ... vs Nakka Appanna on 15 November, 2024

                                         1


            THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY

              CIVIL MISCELLANEOUS APPEAL No.717 of 2024
JUDGMENT:

This Civil Miscellaneous Appeal is filed under Section 30 of Workmen's

Compensation Act, 1923 questioning the award passed by the Commissioner

for Workmen's Compensation and the Assistant Commissioner of Labour,

Narsipatnam, in W.C.No.33 of 2012, dated 15.03.2013.

2. The facts leading to the present appeal are, as under;

One Mr.Nakka Durga Prasad was working as loading and unloading

worker in their Tractor-Trailer bearing Nos. AP05X2191 and AP05TT9942

belonging to OP.No.1. The deceased was being paid Rs.6000/- per month

apart from, Batta of Rs.50/- per day. On 12.04.2012, the deceased boarded

the Tractor-Trailer as a tractor coolie and sat beside the driver of the Tractor.

The driver brought the Tractor-Trailer to the Adigarla Srinivasu cattle sheds to

load the cattle manure in the Trailer. The driver of the Tractor left the Trailer at

the cattle manure heap for the purpose of loading manure into the Trailer.

Thereafter, the driver of the Tractor with a view to park the Tractor beside

Kondagedda canal, drove in a rash and negligent manner and lost control

over the Tractor and the Tractor turtle into Kondagedda canal resulting to the

death of the deceased.

3. The Police Makavaram has registered a case in Crime No.42 of 2012

under Section 304-A of I.P.C against the Driver of the offending vehicle as the

Tractor and Trailer were duly insured with M/s. United India Insurance

Company Limited bearing Policy No.150381/31/11/02/00000606, which was

valid from 13.08.2011 to 12.08.2012.

4. It was further submitted that the parents of the deceased filed an

application before the Commissioner seeking compensation of Rs.6.00 lakhs.

The OP.No.1 I.e. the Employer filed his counter admitting the employment and

wages of the deceased and also the manner of the accident. Apart from

admitting that the accident occurred in the course of employment, it was also

pleaded that the driver of the crime vehicle was having valid driving license i.e.

L.M.V.H.G.V and H.P.V, which was valid till 24.12.2012.

5. The OP.No.2 filed their counter denying all the claim averments as

expected. It was also pleased by the Insurance Company that the issue got

investigated and during their investigation, it was revealed that the deceased

was allowed to travel by sitting beside the Tractor driver. Even as per the

charge-sheet and F.I.R and Case Diary Part-II statements of the witnesses in

Crime No.42 of 2012 of Makavaram Police Station, the deceased was made

to sit in the Tractor even though there was no place to sit authorizedly. Hence

there was any liability on the part of Insurance Company as the terms of the

Policy were not validated.

6. On behalf of the claimants, Ex.A1 to A8 were marked and on behalf of

Insurance Company, Ex.B1 to B3 were marked. Ex.X1 and X2 were marked

through RW2 I.e. the Employee of the R.T.O. office.

7. The Commissioner has framed the following issues;

1. Whether the deceased is a workman under the provisions of W.C.Act and there exists employee- employer relation and death aroused out of and in the course of employment?

2. What is the Age & Wage of the deceased at the time of the accident?

3. Whether the applicant is entitled for any amount of compensation? If so what amount of compensation the applicants are entitled and who are liable to pay compensation?

8. In the course of enquiry, the claimant No.1 was examined as AW1 and

an Eye-witness by name Sri Surla Venkata Ramana, was examined as AW2.

On behalf of the Insurance Company, RW.1 Sri Md Mohamood, who was

working as Sr. Assistant in the M/s. United India Insurance Company Ltd, was

examined and RW2 Sri Tatapudi Annaji, Jr. Assistant working in R.T.O. Office,

Anakapalli, was also examined.

9. The Commissioner taking into consideration the evidence and the

contentions, awarded compensation of Rs.5,26,447/- in favour of the

claimants by adopting minimum wage at the rate of Rs.4650.50 per month, as

against the claim compensation of Rs.6.00 lakhs. Aggrieved, the present

appeal is filed.

10. Heard Sri. Naresh Byrapaneni, learned counsel for the appellant and

Sri.M.V. Vijay Aditya Reddy, learned counsel for the respondents.

11. In the present appeal, the substantial question of law raised by the

claimants-Insurance Company is that:

(i) That the deceased was neither a workman nor a regular employee of respondent No.1 i.e. OP.No.1.

(ii) That the driver of the vehicle was not having valid Driving License

(iii) That the owner and driver of the vehicle were violated the terms of conditions of the Insurance Company.

12. The appellant counsel reiterated these issues in his arguments. As

regards the 1st ground with regard to the Employee-Employer relationship, this

Court is of the opinion that the counter filed by the OP.No.1- Employer

admitting to employment and wages of the deceased is sufficient to come to a

conclusion that the deceased was employed with OP.No.1.

13. The Insurance Company did not choose to summon OP.No.1 and

question him regarding employment. Therefore, this Court is not inclined to

examine this issue as the same is being a question of fact. Therefore, this

Court is of the opinion that there are no merits in this ground and the same is

rejected.

14. The plea of the insurance company is that as the deceased was sitting

next to the driver on the tractor, which only accommodate the driver of the

vehicle; as such there was violation of policy and the claimants are not entitled

for the compensation. There is no dispute to the fact that the deceased was

taken for the purpose of work at that given place and the incident occurred in

the course of his employment only. The primary requirement for compensation

under Workmen's Compensation Act is that the deceased should be employed

and the tragic incident should have happened only in the course of accident.

It is the primary requirement for granting compensation under this Act, this

having not been satisfied, it is not open to the Insurance Company to refuse to

pay compensation. It is difficult to visualise the manner in which the tractors

are used in agricultural operations. Many of the operations may not be strictly

in tune with the policy, but are a requirement in agricultural operations. It is a

common site to see workmen sitting not only by the side of the driver, but on

the ploughing equipment so that the soil can be ploughed little deeper. It is

not the case of the Police that the accident occurred because the deceased

was sitting next to the driver but the incident occurred due to rash and

negligent driving of the driver; the insurance company cannot disown its

liability.

15. In similar circumstances, the High Court of Madhya Pradesh in Ganesh

Bai v. Sobran Rai1 held as under:

(9) IT is not in dispute and has also been found by learned Claims Tribunal that the tractor was being used for the purpose of agriculture at the time when accident took place. It is also the finding recorded by the learned Claims Tribunal that the deceased was not sitting as a traveller, but, was actually involved in helping the ploughing operation. All of a sudden tractor turned turtle, owing to which injuries were sustained and Vithol succumbed to the injuries on the spot. We find that the deceased was not a passenger on the tractor, but, was actually involved and helping in the agriculture operation at the time of accident. Tractor was in the agriculture field. Thus, it cannot be said to be a case of passenger travelling on tractor unauthorisedy, as tractor was in use at the time of accident for the purpose of agriculture. In our opinion, the insurer cannot escape from the liability from making payment of compensation along with driver and owner.

2007 0 ACJ 1942

The decision relied upon by the Tribunal in New India Assurance Co. Ltd. v. Tarawati, 1994 ACJ 822 (Pandh), is distinguishable on facts as deceased was travelling as a passenger. In the instant case, deceased was not a passenger, hence, there was no violation of the terms and conditions of the policy of insurance.

16. As regards the issue of driving licence, one Mr. Tatapudi Annaji, working

at R.T.O Office was examined as R2. Ex.X1 and X2 were marked at his

instance. The Ex.X1 is the Driving License of the driver to the Tractor and as

per the Driving License, the driver of the Tractor by name Mr. Dantuluri

Venkata Jagannadharaju was entitled to drive L.M.V. transport and non-

transport, Motor Cycle with Gear and also HGV (Heavy Goods Vehicle), HPV

vehicles(Heavy Passenger Vehicle) with transport and non-transport vehicles.

The transport endorsement of License expired on 24.06.2012 and was not

renewed as on the date of accident. The non-transport LMV licence is valid till

09.11.2017. As per the constitutional Bench judgment of the Hon'ble Supreme

Court in Mukund Dewagan v. Oriental Insurance Company Ltd2, the non-

transport LMV licence also holds good to drive vehicles less than 7500 kgs of