Divisional Manager, National ... vs Avanigadda Vanisri And Another
2022 Latest Caselaw 2459 Tel

            THE HON'BLE SRI JUSTICE M. LAXMAN

          CIVIL MISCELLANEOUS APPEAL No.2181 OF 2004

     JUDGMENT:

1. The present appeal is directed against order dated

30.06.2003 passed in W.C.No.33 of 2002(F) by the

Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour, Nalgonda, wherein and whereby the

claim made by the first respondent herein for the death of her

husband in a motor vehicle accident that occurred on

13.06.2002, was partly allowed by granting compensation of

Rs.3,55,119/- and granted interest @ 9% from the date of

accident till realization.

2. Aggrieved by the said order, the present appeal is at the

instance of the 2nd respondent/Insurance Company before the

Assistant Commissioner of Labour. The 1st respondent herein is

the wife of the deceased, and 2nd respondent is the owner of the

accident vehicle.

3. For convenience, the ranks of the parties as they were

referred in the claim petition, is maintained.

4. The brief facts show that the claimant has filed claim

petition for the death of her husband in a motor vehicle accident 2 ML,J C.M.A. No.2181 of 2004

that occurred on 13.06.2002. Her husband was working as a

cleaner-cum-driver on the Lorry bearing No.AP-16T-4979 which

was owned by the first respondent. The relationship of first

respondent and the deceased was father and son. The claim

made by the claimant was allowed in part and both the

respondents were directed to pay compensation as stated supra.

5. The present appeal is filed by the 2nd respondent and the

claim of 2nd respondent before the Commissioner is that, there is

no employer and employee relationship and the deceased is no

other than the son of the owner of the vehicle. It is also their

contention that the Insurance Company is liable to reimburse

claim only in respect of one driver and one cleaner. Whereas the

claims have been filed by the legal heirs of alleged drivers.

According to them, the driver on steering alone is entitled to

claim compensation as a driver and the other person cannot

claim as a driver.

6. In support of their case, both parties have adduced their

evidence. The learned Commissioner after appreciation of

evidence on record found the employer and employee

relationship is made out and consequently the compensation 3 ML,J C.M.A. No.2181 of 2004

was granted treating the deceased as a driver. Aggrieved by the

same, the present appeal has been filed.

6. In order to admit the appeal, the appellant has raised

multiple substantial question of law, but all of them are not

required. The only substantial questions of law in the present

appeal are:

i) Whether the learned Commissioner was right in holding that there was employer and employee relationship, and whether such finding suffers from any perversity?

ii) Whether the claim of legal heirs of two drivers is maintainable when at the time of accident, the other person was not on the steering, and when there is no admissible evident with regard to holding of valid driving licence by the deceased in the case?

8. The main ground of the appellant/Insurance Company in

challenging the order of the Commissioner is that, the owner of

the crime vehicle is no other than the father of the deceased.

Therefore, there is interested testimony from the father and the

deceased was not employee of the owner of the vehicle.

On the contrary, the learned Counsel for claimant submitted

that the distance to be travelled by the vehicle was a long

distance and one driver cannot drive such long distance, as

such, in addition to the driver on steering, the son of the owner 4 ML,J C.M.A. No.2181 of 2004

of the accident vehicle was also travelling as an additional driver

in the vehicle. According to him, there is no bar that the father

cannot employ his son as an employee on the vehicle.

9. The contention of the learned Counsel for claimant is that

the licence produced by the claimant shows that the deceased

was holding licence. On the contrary, the learned Counsel

representing the Insurance Company has submitted that the

licence was brought on record without any valid procedure.

Further it is not clear whether the vehicle was LMV or heavy

vehicle. According to him, by seeing the nature of lorry, it is a

heavy vehicle, whereas Ex.A6 shows it is a LMV licence. This

clarification could have clarified if sufficient opportunity was

given to the Insurance Company while marking the document

Ex.A6. According to him, the document was received without

notice to the Insurance Company. Whereas order reflects that it

was marked with "No objection." But such evidence is lacking.

10. There is no dispute that a father being the owner of the

vehicle can employ any person from his family. The two

personalities are distinct. Therefore, the contention of the

learned Counsel for Insurance Company is that by virtue of their

blood relationship, there is no employer and employee 5 ML,J C.M.A. No.2181 of 2004

relationship between the owner of the vehicle and the deceased,

cannot be accepted and same is rejected.

11. As rightly contended by the Counsel for respondent No.2

that the order shows that Ex.A6 was marked with "No objection."

Whereas the Memo filed by the claimant along with licence

under Ex.A6 shows that no notice was given to the Counsel on

record for the Insurance Company so that it can be seen whether

such document was taken on record with objection or without

objection. The findings of the Commissioner that Ex.A6 is

marked without any objection from the Counsel on record for the

Insurance Company, has no evidentiary support.

12. A reading of Ex.A6 also shows that the licence held by the

deceased was only for LMV vehicle. In the present case, the

vehicle involved is Lorry which is a heavy vehicle and wages fixed

treating heavy vehicle's driver. It is not the contention of the

learned Counsel for the claimant that the lorry which is

described is a LMV. The RC book is also not placed on record so

that the vehicle can be treated as LMV. These questions would

have been answered had there been proper marking of Ex.A6,

which is not done by the Commissioner. There is no evidence on

record to show that the lorry which is involved in the accident is

a LMV vehicle. Therefore, the licence under Ex.A6 even if it is 6 ML,J C.M.A. No.2181 of 2004

taken into consideration, it does not show that the deceased had

valid licence to drive heavy vehicle i.e. lorry. Therefore, the

occupation of the deceased ought not have been taken as a

driver by the Commissioner.

13. The other contention raised by the learned Counsel for the

appellant/Insurance Company is that the compensation was

granted by treating the deceased as a driver when other driver

was on steering. According to him, both claims are not

maintainable and the driver who was on steering only can claim.

A close scrutiny of policy terms shows the premium is collected

for employees. There is no specific description that premium

was collected for an employee as driver and another cleaner so

that both drivers cannot claim compensation being the drivers.

14. The evidence on record clearly shows that the claimant has

not established that the deceased was a driver. Further, the

evidence shows that the deceased was employed and travelling

on the vehicle. Therefore, the compensation has to be fixed

treating the deceased as an employee other than the driver.

There is also plea that deceased was also doing cleaner apart

from driver. Since there is no valid licence to drive the heavy

vehicle, the occupation of the driver is treated only as a cleaner.

                                  7                                ML,J
                                                C.M.A. No.2181 of 2004

The minimum wages payable to a cleaner as on the date of

accident. The age of deceased was fixed as 28 years, which is

not serious in dispute. The compensation determined is as

follows:

2312.75 x 80/100 x 211.79 = Rs.2,44,908/-.

15. Accordingly, the Civil Miscellaneous Appeal is allowed in

part as follows:

The impugned order is modified by reducing the

compensation from Rs.3,55,119/- to Rs.2,44,908/-. The

respondents are directed to pay interest @ 12% p.a. from the

date of accident excluding 30 days till the date of deposit of said

compensation. There shall be no order as to costs.

15. As a sequel, pending miscellaneous applications, if any,

shall stand closed.

_______________ M. LAXMAN, J DATE: 09.06.2022 BDR