National Insurance Company ... vs Velpula Rajeswari And 5 Others
2022 Latest Caselaw 526 Tel

               HON'BLE SMT. JUSTICE P.SREE SUDHA

           CIVIL MISCELLANEOUS APPEAL No.1028 of 2007

                               ORDER

1. This appeal is filed by the National Insurance Company Limited

against the order of the Commissioner for Workmen's Compensation

and Assistant Commissioner of Labour, Karimnagar, in W.C.No.4 of

2006 dated 27.01.2007.

2. The appellant would mainly contend that the Assistant

Commissioner failed to consider their contention that the insurance

policy does not cover the risk of the cleaner as there is no separate

payment of premium for covering the risk of the cleaner of the

vehicle. The appellant would further argued that the award of the

Assistant Commissioner is contrary to the judgement of the Apex

Court in RAMASHRAY SINGH V/s. NEW INDIA ASSURANCE

COMPANY LIMITED1, and therefore, prayed this Court to set aside

the order in W.C.4 of 2006.

3. The said issue was raised before the Assistant Commissioner

and he discussed the same at length and held that the insurance

company is liable to pay the compensation. The relevant portion of

the same is extracted below for the sake of convenience.

"The opposite party No. 2 has contended that the risk of the cleaner of the vehicle was not covered under the said insurance policy. The opposite party No. 2 also examined one Mr. M. Sanjeev, S/o. Narahari, Assistant, M/s. National Insurance Co. Ltd., Divisional Office, Karimnagar as RW-1 who deposed on 11.10.2006 that no premium was collected for cleaner and

2000 (3) ACJ 1550 (SC)

therefore the policy did not cover the accident of the deceased who was a cleaner. In his cross-examination by the learned counsel of the applicants, the RW-1 admitted that the insurance policy issued was comprehensive insurance policy and that under comprehensive insurance policy own damage was also covered that basic premium was collected towards third party risk that the existing insurance policy covers the liability under the Motor Vehicles Act. While denying the suggestions that the basic premium under a comprehensive insurance policy covers the liability of the driver and the cleaner of the vehicle also, the RW-1 stated that the did not have details of the risks covered under the basic premium. On the foregoing I conclude that the existing insurance policy being a comprehensive policy, the basic premium covers the risk of the employees like driver and cleaner also. The RW-1 also could not reveal the details of risks covered under the basic premium. The opposite party No. 2 could not establish that the existing insurance policy (Ex. R-1) did not cover the liability of the employees like driver and cleaner."

4. Learned counsel for the respondents relied upon several

citations in support of his contentions. He mainly contended that

there is no substantial question of law to prefer an appeal. The

appeal provided under Section 30 of the Workmen's Compensation

Act, 1923 (for short, 'the Act of 1923') against the order of the

Assistant Commissioner is not like a regular first appeal akin to

Section 96 of the Civil Procedure Code, 1908 and the appellate

jurisdiction of the High Court to decide the appeal is confined only to

examine the substantial question of law arising in the case. He relied

upon a decision of the Hon'ble Apex Court in NORTH EAST

KARNATAKA ROAD TRANSPORT CORPORATION V/s SUJATHA2,

wherein it was held as follows:

2019 (11) SCC 514

"9. At the outset, we may take note of the fact, being a settled principle that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependants of the deceased employee, the extent of disability caused to the employee due to injuries suffered in ana accident, whether there was any insurance coverage obtained by the employer to cover the incident, etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.

10. The aforementioned questions are essentially the questions of fact and, therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.

11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.

12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."

5. In the above judgement, it was also clearly held that the

interest is to be granted from the date of accident and not from the

date of adjudication of the claim. As it is a pure question of law, even

if the respondents did not challenge for awarding interest, in order to

do substantial justice, the relief can be granted in their favour.

6. Learned counsel for the appellant would also argue that except

the insurer and the insured all the other persons come under the

category of third party, for which he relied upon the judgement of the

Hon'ble Supreme Court in NEW INDIA ASSURANCE COMPANY

LIMITED V/s SHANTI BOPANNA3. He would also advocate that

statutory third-party insurance policy covers liability in respect of

death or bodily injury during the course of employment and it covers

the employees engaged in driving the vehicle. If it is a public service

vehicle, other than the driver, the person engaged as a conductor is

also covered. If it is a goods carriage, there is no exclusion in respect

of any class of employees. All employees in respect of whom liability

arises under the Act of 1923 would be covered. The policy would also

cover contractual liability.

7. In the case on hand, the deceased was a cleaner of the lorry

bearing No.AP 37U 4511. There is no dispute regarding the

employment of the deceased as a cleaner as it was admitted by the

owner in his counter. He met with an accident on 31.05.2005 and

died and his legal representatives filed the application for

compensation.

8. Learned counsel for the claimants also relied upon a case law

and stated that the Kalasi and the Gumasta accompanying the goods

AIR 2017 SC 2857

are persons employed in connection with the operation of the motor

vehicle and thus their risk is covered by the policy.

9. In the light of the above and also considering the discussion by

the Assistant Commissioner, this Court does not find any irregularity

or illegality in the order dated 27.01.2007 and thus the appeal is

dismissed.

10. Pending miscellaneous petitions, if any, shall also stand

dismissed in the light of this final judgment.

____________________ P.SREE SUDHA, J.

10th FEBRUARY, 2022.

PGS