National Insurance Co. Ltd. vs B. Suvarna And 3 Others
2022 Latest Caselaw 6351 Tel

 THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU

      CIVIL MISCELLANEOUS APPEAL No.188 OF 2022


ORDER:

This Civil Miscellaneous Appeal has been filed by the

second opposite party in E.C.NO.15 of 2018 on the file of

the Commissioner for Employees Compensation and

Assistant Commissioner of Labour-II, under Section 30 of

the Employees Compensation Act,1923. Respondent Nos.1

to 3 herein are applicants and respondent No.4 hearing

was 1st opposite party in the said case. Respondent Nos.1

to 3 have filed an application before trial Court and sought

for an amount of Rs.7,50,000/- as compensation for the

death of husband of 1st respondent and father of

respondent Nos.2 and 3 for his death on account of a road

accident. The learned Commissioner allowed the claim and

awarded Rs.6,16,584/- and fixed the liability against the

appellant/2nd opposite party and respondent No.4/1st

opposite party. Feeling aggrieving by the said order, the

appellant has filed this appeal.

SSRN, J CMA.No.188 of 2022

2. As could be seen from the order filed along with the

present appeal, it shows that respondents 1 to 3 herein

have filed E.C.No.15 of 2018 before the trial Court stating

that said Butti Ramulu who hereinafter will be referred as

deceased, was working as driver on lorry bearing

registration No. TS-08-UB-9279 under the employment of

1st opposite party i.e., respondent No.4 herein. On

28.09.2018, while he was on duty on the said lorry there

was an accident which resulted injuries and subsequently

he died, thereby the respondents 1 to 3 have claimed that

the deceased was a driver and he along with cleaner of the

said lorry was proceeding towards Kandukur and when

they reached Tukkuguda, the cleaner by name Kumar took

the driving seat and after they crossed Maheswaram X

roads, the said Kumar lost control over the vehicle and

dashed one tanker from behind. Therefore, the deceased

received injurious and he was shifted to Osmania General

Hospital for treatment, but he died on the next day.

SSRN, J CMA.No.188 of 2022

3. Therefore, the respondents 1 to 3 sought for

compensation @ Rs.7,50,000/-. The 4th respondent herein

i.e., 1st opposite party did not appear before the trial Court

and he was set exparte. But, the appellant herein appeared

before the trial Court and filed counter disputing all the

material averments.

4. The appellants herein have denied all the averments

made in the petition filed by the respondents/claimants

including the salary of the deceased. The appellant has

claimed that the deceased was not having a valid driving

license. The respondents have not issued any notice to the

appellant about the accident, and also claimed that the

compensation amount claimed by the respondents is

highly excessive and it is not in accordance with the

schedules of Employees Act and sought for dismissal of the

petition.

5. During enquiry, the wife of the deceased has been

examined as AW1 and one Satyanarayana has been

examined as AW2. The respondents/claimants have

SSRN, J CMA.No.188 of 2022

marked Ex.A1to A9 and Ex.X1 was marked though AW.2.

The appellant herein examined its Administrative Officer as

RW1 and marked Ex. B1 to B5.

6. The present appeal has been filed on the following

grounds:

The learned Commissioner failed to appreciate the

pleadings and evidence wherein it is clearly stated that at

the time of accident the cleaner was driving vehicle. The

police, after due investigation filed charge sheet against the

cleaner for offence under Section 304-A, 338 Indian Penal

Code and Section 188 of Motor Vehicle Act. At the time of

accident the deceased was not on the steering, as such it

cannot be said that the alleged death of deceased was

occurred during the course of employment. But, the

learned commissioner failed to appreciate the fact and

came to a wrong conclusion and awarded compensation.

The appellant has claimed that the learned Commissioner

ought to have seen that respondent Nos. 1 to 3 failed to

prove the employee and employer relationship between the

deceased and owner of the vehicle. The respondents could

SSRN, J CMA.No.188 of 2022

not produce any evidence i.e., trip sheet, wage register, pay

slips etc., to show that the deceased was under the

employment of respondent No.4/ 1st opposite party.

7. The appellant claimed that the learned Commissioner

ought to have seen throughout the entire proceedings that

the respondents have stated that the deceased used to

work as driver on the above said lorry but they did not

produce any evidence in order to prove their contention.

They have also claimed that the owner of the vehicle has

committed breach of the terms of policy. The cleaner who

was driving at the time of accident was not having driving

license. Therefore, it amounts to violation of the policy. On

that ground the appellant need not pay any compensation

and not liable to indemnify owner. Therefore, the appellant

sought for setting aside the order passed by the trial court.

8. In view of the above claim, the point that arose for

consideration is :

Whether the learned Commissioner committed any wrong by allowing the petition filed by respondents and that whether the order is liable to be set aside?

SSRN, J CMA.No.188 of 2022

9. POINT

The main ground on which the present appeal is filed

about the driving of lorry by the cleaner and at the time of

accident the actual driver who died in the accident was not

on the wheel of the vehicle.

10. Learned counsel for the appellant has argued that as

per the entire record including the police report, it clearly

show that at the time of accident the cleaner by name

Kumar was driving the vehicle. He had no valid license. He

lost control over the vehicle and caused the accident.

Therefore, since the vehicle was allowed to be driven by an

unauthorized driver it amounts to breach of policy

conditions and he has argued that since the driver was not

on the wheel, the death may not be considered as death

during the employment. Therefore, the counsel sought for

setting aside the order of the trial Court.

11. On the other hand, learned counsel for the

respondent/claimant has argued that the driver was on the

SSRN, J CMA.No.188 of 2022

employment of the 1st opposite party, there is no dispute by

respondent No.4 about such employment. Therefore, it

cannot be said that the 1st opposite party allowed an

unauthorized person to drive the vehicle. There is evidence

before the Court to believe that at the time of accident both

the driver and cleaner were on the duty entrusted by the

owner. Therefore simply because the driver was taking rest

while continuing the journey it cannot be said that, the

death was not during the course of employment. Thereby,

the award passed by the trial Court cannot be set aside.

12. The learned counsel further submitted that the

Commissioner has considered all the oral arguments apart

from considering the evidence placed before him and came

to a correct conclusion thereby there is no necessity to

interfere with the award and prayed for dismissal of the

appeal.

13. In support of his contention the counsel for the

respondent placed reliance on two judgments i.e.,

judgment between S.Janardhan Ranagaiah vs

SSRN, J CMA.No.188 of 2022

Janmindari Rama Devi and others1 and another

judgment between Sohan Lal Passi vs P.Sesh Reddy and

others2.

14. As rightly argued by the counsel for the respondent

the employment of the deceased on the lorry owned by 4th

respondent/1st opposite party is not in dispute. The

evidence of Aw1 coupled with the copy of FIR and other

record clearly shows that on the date of accident the

deceased/driver was on duty on the lorry of the 4th

respondent and he was discharging such duty thereby,

even though at the time of accident the driver was not on

wheel it cannot be said that he was not discharging his

duty and that the death was not during the course of

employment.

15. In the above referred judgment referred supra the

High Court of combined Andhra Pradesh State observed

that "when the deceased who was appointed as the driver

of the lorry by the owner, was having a valid driving license

1 2004 4 ALD 105 2 AIR 1996 SCC 2627

SSRN, J CMA.No.188 of 2022

and when the deceased without the knowledge of the owner

had entrusted the lorry to cleaner who is not authorized by

appellant to drive the vehicle, the insurance company cannot

escape its liability." Whereas in the other judgment in

Sohan Lal Passi vs P.Sesh Reddy and others' case, the

Hon'ble Apex Court was pleased to observe that "when the

owner of the vehicle authorized a driver with a valid license

to drive his vehicle, if the driver allowed cleaner who was

also employee of same owner to drive the vehicle though he

had no driving license the owner cannot escape the liability

so far as third persons are concerned on the ground that he

had not authorized particular manner in which act was

done." In the same judgment the Hon'ble Apex Court was

pleased to observe that "the insurance company cannot

escape the liability to III party on the ground of

contravention of condition in policy, even though the

vehicle was driven by an unauthorized person.

16. In this case, it is very clear from the record that the

deceased and cleaner Kumar were appointed by the 4th

respondent/1st opposite party. The deceased was having a

SSRN, J CMA.No.188 of 2022

valid driving license. The record further indicate that just

before the accident the cleaner who was present in the

vehicle took the steering wheel and he was driving the

vehicle which may not be within the knowledge and

consent of the owner. Therefore, even though the accident

occurred when the cleaner was driving the vehicle, the

owner as well as the insurance company cannot escape the

liability of payment of compensation. The facts of the

present case are aptly covered by the above the referred

judgments. Therefore, the Commissioner has passed an

award after considering all the aspects and there is no

necessity to interfere with the order of the lower Court and

the appeal is liable to be dismissed.

17. In the result, appeal is dismissed.

18. As a sequel, pending Miscellaneous Applications, if

any, shall stand closed.

___________________________________ JUSTICE SAMBASIVA RAO NAIDU

Date: 02.12.2022 PSSK