Telangana High Court

The New India Assurance Company ... vs Smt. Y. Bhagyamma And Another on 14 December, 2023

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI


       CIVIL MISCELLANEOUS APPEAL No.1177 of 2009

JUDGMENT:

1. The present Civil Miscellaneous Appeal has been directed

against the order dated 10.05.2008 in W.C.No.121 of 2004 on the

file of the Commissioner for Workmen's Compensation and

Assistant Commissioner of Labour-II, Hyderabad (hereinafter

referred to as 'Commissioner'). The claim petition in the said case

has been filed by respondent No.1 herein seeking compensation

for death of one Sri Y. @ N. Ram Reddy (hereinafter referred to as

'deceased') in an accident that occurred on 01.08.2004 and the

same was partly allowed granting an amount of Rs.1,77,883/-

towards compensation. Aggrieved by the same, the present Civil

Miscellaneous Appeal is filed at the instance of the insurance

company i.e., opposite party No.2 before the Commissioner.

2. The appellant herein is opposite party No.2, respondent No.1

herein is applicant and respondent No.2 herein is opposite party

No.1 before the Commissioner. For the sake of convenience, the

parties are hereinafter referred to as they were arrayed before the

Commissioner.

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3. The applicant filed the present claim petition seeking

compensation of Rs.2,50,000/- on account of death of the

deceased. The applicant is wife of the deceased. It is her case

that the deceased was working as labourer on tractor-trailer

bearing Nos. AP 22 U 8702 and 8703 under the employment of

opposite party No.1. While so, on 01.08.2004 at about 19:00

hours, the deceased was proceeding from Eppayapalli village to

Vaspula village in the said vehicle with load of grass and when the

vehicle reached near a rice mill at Nancharla gate, the driver of the

tractor-trailer drove the vehicle with high speed in rash and

negligent manner, due to which the tractor met with an accident

and turned turtle. In the said accident, the deceased sustained

grievous injuries and he was shifted to Osmania General Hospital,

Hyderabad, for treatment. While undergoing treatment, the

deceased died on 02.08.2004 at about 11:25 hours. In this

regard, with regard to accident a case was registered in Crime

No.84 of 2004 on the file of Mammadabad Police Station and

another case was registered in Crime No.682 of 2004 on the file of

Police Station Afazalgunj with regard to death of the deceased.

4. It is further contended by the applicant that the deceased

was aged about 45 years as on the date of accident and he was

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being paid Rs.3,000/- per month i.e., Rs.100/- per day towards

wages. The accident occurred during the course and out of

employment of the deceased under opposite party No.1. The

tractor-trailer involved in the accident, which is owned by opposite

party No.1 was insured with opposite party No.2 and was having

valid and effective insurance policy as on the date of the accident.

Hence, the applicant filed the present case seeking compensation

for death of the deceased.

5. Opposite party No.1 filed his counter disputing the

occurrence of accident on 01.08.2004. He also disputed the

employment of the deceased on the tractor-trailer owned by him

and also death of the deceased in the accident due to the injuries.

It is his case that the deceased never worked with him and that

the deceased and some other persons were working as labourers

under one Mallikarjuna Reddy. Opposite party No.1 was having

good relationship with said Mallikarjuna Reddy and at his request,

he sent the tractor and he did not know that the same was used

for shifting grass load. He contended that his name was

implicated in the present case to seek compensation. However, he

stated that the tractor-trailer owned by him was insured with

opposite party No.2 under a valid and effective policy as on the

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date of the accident. The compensation claimed by the applicant

is excess and exorbitant. Hence, he prayed to dismiss the case

against him.

6. Opposite party No.2 filed its counter denying the averments

of the claim petition such as age, wages, manner of the accident,

death of the deceased and also employee and employer

relationship between the deceased and opposite party No.1. It is

also contended that the driver of the tractor-trailer was not having

a valid driving license as on the date of the accident. Opposite

party No.2 further contended that the Commissioner was not

having jurisdiction as neither the accident occurred in Hyderabad

nor applicant or opposite parties were residing in Hyderabad. It is

also contended that no extra premium was paid by opposite party

No.1 to cover the risk of labourers. Hence, prayed to dismiss the

claim petition.

7. In support of her case the applicant got examined A.Ws.1 to

3 and got marked Exs.A-1 to A-11. Opposite party No.1 did not

adduce any oral or documentary evidence. Opposite party No.2

did not adduce any oral evidence, but got marked Ex.B-1, in

support of their case.

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8. On the basis of the above pleadings and evidence, the

Commissioner framed the following issues for consideration:

"1. Whether the deceased late Sri Y @ N. Ram Reddy met with Accident on 01.08.2004 during the course of his employment while he was on duty as labourer on the tractor-trailer bearing Nos.AP 22 U 8702 and 8703, sustained injuries and died on 02.08.2004 while undergoing treatment in the hospital?

2. If yes, who are liable to pay compensation to the dependants of the deceased? And;

3. What is the amount of compensation entitled by the Dependants of the deceased?"

9. After considering the evidence and documents filed by both

sides, the Commissioner awarded an amount of Rs.1,77,883/-

towards compensation to the applicant. Aggrieved by the same,

the present appeal is filed at the instance of opposite party No.2

i.e., the insurance company.

10. Heard, both sides.

11. Learned counsel for the appellant/opposite party No.2 i.e.,

the insurance company contended that the Commissioner wrongly

came to the conclusion that there is employee and employer

relationship between the deceased and opposite party No.1, when

opposite party No.1 himself denied the employment of the

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deceased under him. It is also contended that the Commissioner

wrongly came to the conclusion that the deceased died during the

course and out of his employment in the accident as there is

dispute with regard to identity of the deceased. It is also

contended that the Commissioner was not justified in awarding

compensation, when opposite party No.1 did not pay any

additional premium to cover the risk of labourers working on the

tractor-trailer owned by him.

12. Per contra, the learned counsel for respondent

No.1/applicant has contended that the Commissioner has rightly

considered the entire evidence available on record and has granted

just and reasonable compensation, for which interference of this

Court is unwarranted. Hence, prayed to dismiss the appeal.

13. Now the point for determination is as follows:

"Whether the applicant is entitled for the compensation as granted by the Commissioner?"

Point:-

14. This Court has perused the entire material placed on record.

The applicant was examined as A.W.1 and she reiterated the

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contents of the claim petition. In the cross-examination by

opposite party No.1, she denied that her husband did not work on

the tractor-trailer involved in the accident and that there is no

employee and employer relationship between the deceased and

opposite party No.1. She said that she does not know whether

one Mallikarjuna Reddy employed her husband along with other

labourers. Further, in the cross-examination by opposite party

No.2, she denied that N. Ram Reddy and Y. Ram Reddy are two

different persons. She also stated that she does not know whether

opposite party No.1 paid premium for coverage of risk of labourers

or not.

15. The applicant in support of her case got examined one

Ramulu, an agriculture labourer as A.W.2. He stated that he

along with deceased and others were working as labourers on

tractor-trailer bearing No.AP 22 U 8702 and 8703 as on the date

of the accident. He supported the occurrence, manner of the

accident, employment of deceased and death of the deceased as

contended by the applicant. In the cross-examination, he stated

that he does not know Mallikarjuna Reddy. Though, he stated

that he does not know the contents of the chief affidavit filed by

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him, he stated that he signed the same on the instructions of his

advocate.

16. The applicant also got examined one B. Bheemaiah,

agriculture labourer as A.W.3. He also reiterated the case set up

by applicant and A.W.2. He deposed that he has given complaint

to police with regard to the accident. He supported the case of the

applicant as to the employment of deceased with opposite party

No.1 and death of the deceased in the accident during the course

and out of his employment. In the cross-examination, he denied

that there was no employee and employer relationship between

the deceased and opposite party No.1. He also denied

employment of himself and deceased under said Mallikarjuna

Reddy. He admitted that there was no proof with regard to wages

paid to them by opposite party No.1.

17. Coming to the contention that there was no employee and

employer relationship between the deceased and opposite party

No.1, admittedly, opposite party No.1 filed his counter denying

employment of the deceased under him. He stated that the

deceased and other labourers were employed under one

Mallikarjuna Reddy and he has given his tractor-trailer to said

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Mallikarjuna Reddy for his use. On the contrary, the applicant

and the witnesses examined by her contended that the deceased

was employed under opposite party No.1. Admittedly, no evidence

was placed on record by opposite party No.1 to prove that the

deceased was not employed under him. Furthermore, he did not

enter into witness box to substantiate his claim of not employing

the deceased. Opposite party No.1 ought to have examined the

said Mallikarjuna Reddy to prove the case set up by him in the

counter. On the other hand, the applicant got examined A.Ws.2

and 3, who are co-workers of the deceased and they completely

support the case set up by the applicant. It is pertinent to state

that opposite party No.1/owner, in order to escape from civil

liability, will try to deny the employment of the deceased with him.

Thus, considering all these aspects, the Commissioner has held

that there is no evidence placed on record by both the opposite

parties to disprove the case of the applicant with regard to

employment of the deceased under opposite party No.1. Hence,

this Court is of the considered opinion that the said findings do

not suffer from any perversity or illegality and interference of this

Court is unwarranted.

MGP,J CMA_1177_2009

18. Learned counsel for the appellant/opposite party No.2

contended that the Commissioner erred in granting compensation

as there was dispute with regard to the identity of the deceased. It

is pertinent to state that the name of the deceased is mentioned as

Y. Ram Reddy, S/o. Ramlinga Reddy, in Exs.A-1 FIR, A-5 inquest

report, A-10 copy of house hold supply card and A-11 copy of

election identity card. Further, the evidence of A.Ws.2 and 3 also

support the case of the applicant with regard to death of the

deceased in the accident. It is pertinent to state that there is no

dispute regarding the name of the deceased, but the dispute is

only with surname i.e., 'Y' or 'N'. There is no evidence placed on

record by both the opposite parties to show that the deceased and

the person involved in the accident are different. Except, stating

so, no cogent or convincing evidence is placed on record by both

the opposite parties to substantiate the same. When two views

are possible, the view that is beneficial to the applicant has to be

taken, since the Workmen's Compensation Act, 1923, is a

beneficial legislation meant to protect the interest of employees

and workers. Hence, the Commissioner rightly came to the

conclusion that the deceased was working as labourer on tractor-

trailer involved in the accident under the employment of opposite

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party No.1 and died in the accident that occurred on 01.08.2004.

Therefore, the contention of the learned counsel for

appellant/opposite party No.2 that there is dispute with regard to

identity of the deceased is unmerited and the same is rejected.

19. Coming to the aspect of non-payment of extra premium to

cover the risk of labourers, admittedly, the tractor-trailer involved

in the accident is owned by opposite party No.1 and the same is

insured with opposite party No.2 under Ex.B-1/A-9 insurance

policy. It is pertinent to state that the policy is issued subject to

IMT 39. Endorsement No.IMT 39 goes to show that the insurer

has undertaken to indemnify the insured against his legal liability

under the Workmen's Compensation Act, 1923, the Fatal

Accidents Act, 1855 or at common Law in respect of personal

injury to any paid driver (or cleaner or conductor or person

employed in loading/unloading but in any case not exceeding

seven in number including driver and cleaner) whilst engaged in

the service of the insured and not exceeding seven in number. As

per policy, the number of persons covered is only one. The vehicle

involved in the accident in the present case is tractor-trailer. The

same is goods carrying commercial vehicle and workers are bound

to be employed on the said vehicle for the purpose of loading and

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unloading. Hence, opposite party no.2 cannot contend that

labourers are not covered under the policy issued by them.

20. Even otherwise, the contention of the opposite party No.2

before this Court is certainly based on question of fact. The

Hon'ble Supreme Court in North East Karnataka Road

Transport Corporation v. Sujatha 1 held as under:

"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 dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an 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

1 (2019) 11 SCC 514

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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."

21. Even in Golla Rajanna v. The Divisional Manager 2 the

Hon'ble Supreme Court held under the scheme of the Act, the

Workmen's Compensation Commissioner is the last authority on

facts. In view of the principle laid down in the above decisions,

since the contentions raised by the learned counsel for opposite

party No.2/insurance company are based on questions of fact, it

is evident that scope of appeal under Section 30 of the Workmen's

Compensation Act is very limited, thereby the ambit of interfering

with the order passed by the Commissioner is also limited until

and unless the order passed by the Commissioner is perverse or

when there is patent irregularity or illegality committed by the

Commissioner while passing the impugned order. Moreover, when