Telangana High Court

The Branch Manager, Nizamabad District vs Gadamshetty Leelavathi, Karimnagar ... on 14 December, 2023

       THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

         CIVIL MISCELLANEOUS APPEAL NO.921 OF 2011

JUDGMENT:

Aggrieved by the order dated 18.12.2009 in W.C.Case No.7 of

2007 passed by the learned Commissioner for Workmen's

Compensation and Deputy Commissioner of Labour, at Karimnagar,

the opposite party No.3/Insurance company has filed the present Civil

Miscellaneous Appeal.

2. For the sake of convenience, hereinafter, the parties will be

referred as per their array before the learned Deputy Commissioner.

3. The brief facts of the case are that the applicant has filed an

application under the provisions of Workmen's Compensation Act,

1923 (amended as Employee's Compensation Act, 1923) claiming

compensation of Rs.3,50,000/- for the death of her husband late Sri

Gadamshetty Umakantham, hereinafter called as the 'deceased

workmen', against the employer/owner of the deceased and against

the insurer of the of the alleged vehicle. The applicant in her claim

application stated that the deceased was working as a cleaner in the

service bus bearing No. AAJ-7578 under the employment of opposite

party No.1 on payment of a monthly salary of Rs.3,000/- and bata at

Rs.100/- per day. On 27.01.2006, while the deceased was on duty as

cleaner on the said bus and as per the instruction of the opposite 2 MGP,J CMA_921_2011

party No.1 the deceased along with 50 members of Cheryala,

Gambhirraopet, Gagillapur and other neighboring villages engaged the

private service bus bearing No. AAJ-7578 and were going to visit Sri

Kalki Bhagavan Ashramam at Chennai. While so, when the hired bus

reached near Kota cross road on N.H-5, the driver of bus drove the bus

in a rash and negligent manner with high speed and dashed behind of

a stationed lorry bearing No. APD-8178 loaded with iron bars, as a

result, the deceased and one Kompelli Narayana who sat at the left

side seat of front cabin in the bus bombarded with the right rear

portion of the lorry and the deceased died on spot. A case in Crime

No.20 of 2006 under Sec. 337 and 304-IPC was registered by police at

Chillakur Police Station, Nellore District and later charge sheet was

filed against the drivers of the bus and stationed lorry. The applicant

stated that the deceased died during the course and out of his

employment as cleaner on the said bus and was paid wages at

Rs.3,000/-per month along with bata at Rs.100/- per day and he was

aged about 48 years at the time of accident. The applicant stated that

the opposite party No.2 has insured the bus with the opposite party

No. 3 which was subsequently purchased by opposite party No.1 and

the said policy was valid from 09.03.2005 to 08.03.2006, covering the

date of accident. Therefore, the applicant, as dependant of the

deceased, claimed compensation against the opposite parties jointly

and severally.

3 MGP,J CMA_921_2011

4. The 1st opposite party did not file counter nor present, hence,

he was set ex parte on 02.04.2008 for his default and therefore, the

opposite party No.1 deemed to have admitted the allegations and

averments of the applicant.

5. The opposite party No.2, in his counter though did not dispute

the averments of the application including manner of accident,

employment of the deceased as cleaner with the opposite party No.1,

however, he stated that on 20.08.2005 opposite party No.2 sold the

service bus bearing No. AAJ-7578 to opposite party No.1 and the bus

was insured with opposite party No.3, which was valid during the

period from 09.03.2005 to 08.03.2006 with cover note No.493351 and

hence, the opposite party No.1 is the absolute owner of the said bus

and the opposite party No.2 has no connection with deceased or with

the opposite party No.1 and that on submission of no objection

certificate, the Regional Transport Office transferred the registration in

the name of the opposite party No.1 and prayed to dismiss claim

against the opposite party No.2.

6. The opposite partyNo.3/insurance company, in his counter

denied all the averments made in the claim application including

employer-employee relationship and manner of accident. It is further

contended that the compensation claimed is excessive, exorbitant and 4 MGP,J CMA_921_2011

not in accordance with the provisions of the Act and prayed to dismiss

the claim application.

7. On behalf of the applicant, P.W-1 and P.W-2 were examined

and Exs.A1 to A5 were marked. Exs.A-1 and A-2 are the certified

copies of first information report and certified copy of charge sheet, Ex.

A-3 is the certified copy of inquest report, Ex.A-4 is the copy of motor

vehicle investigation report and Ex. A-5 is the copy of post mortem

examination report.

8. On behalf of opposite party Nos. 1 and 2, none were

examined, no documentary evidence was adduced. On behalf of

opposite party No. 3, R.W-1 was examined and Ex. B-1 Copy of

Insurance policy issued in respect of the bus bearing No. AAJ-7578

was marked.

9. Based on the pleadings of the parties, the learned

commissioner framed the following issues:

1. Whether there was employee-employer relationship between the workman and the opposite party No.1 as on the alleged date of accident ?

2. Whether there was an accident out of and in course of employment of the workman with the opposite party No.1 resulting in his injuries and death ?

5 MGP,J CMA_921_2011

3. The exact age and wage of the workman in case of compensation is due ? and;

4. Whether the opposite party No.3 is liable to pay compensation if due?

10. The learned Assistant Commissioner after considering entire

evidence on record, with respect to issue No. 1, 2 and 3 held in

affirmative and with respect to issue No.3 the learned Commisisoner

taking into consideration the minimum rates of wages as per G.O 30

dated 27.07.2000, determined the total wage of deceased as

Rs.2,475.50 paise per month (Basic wage Rs.1,437+VDA

Rs.1,038.50ps, CPI points 134 XRs.7075 paise per point) and by

applying the factor '159.80' for the age of injured being 48 years, has

awarded compensation of Rs.1,97,792/- (Rupees one lakh ninety

seven thousand seven hundred and ninety two only).

11. Aggrieved by the quantum of compensation awarded by the

learned Deputy Commissioner, the opposite party No. 3 / insurance

company has filed the present appeal to set aside the impugned order.

12. Heard both sides and perused the record.

13. The first and foremost contention of the learned counsel for

appellant/insurance company is that in the absence of positive

evidence to indicate that the policy covers cleaner on the bus, the

learned Commissioner committed grave error in drawing an inference 6 MGP,J CMA_921_2011

that insurance policy issued to opposite party No.1 covers cleaner on

the alleged vehicle as the policy issued was a package/comprehensive

policy and assailed the liability to pay compensation on Insurance

Company. On this ground, the appellant insurance company is not

liable to pay any compensation and prays to set aside the order passed

by the learned commissioner and allow the appeal.

14. The learned counsel for respondent/applicant contended that

the learned Commissioner after considering oral and documentary

evidence on record came to the right conclusion and recorded a finding

that the deceased was employed as a cleaner in the alleged bus and

the employer and employee relationship is established by the

applicant, therefore, the award passed by the learned commissioner

does not warrant any interference by this Court and prayed that

appeal deserves to be dismissed at the threshold.

15. From perusal of record it is evident that, there is no dispute

regarding the employment of the deceased under the employment of

the opposite party No.1, who met with the accident occurred on

28.01.2006, while he was on duty as cleaner on the said bus and

succumbed to injuries. RW1, who is Administrative officer working in

the appellant Insurance Company, deposed in his chief examination

that the opposite party No.1 has taken a insurance policy covering the

passenger carrying commercial vehicle bearing No. AAJ-7578 from the 7 MGP,J CMA_921_2011

appellant, vide policy No. 610605/31/04/010003238 covering the

period from 09.03.2005 to 08.03.2006 for 'package/comprehensive

policy only' and was in force on the alleged date of accident. It is

further stated that, the insured has paid extra premium for covering

the risk of the driver and passengers only as such the risk of deceased,

who was a cleaner, is not covered by the policy as no extra premium

was paid to cover the risk of cleaner. He has also stated that in case of

breach of terms and conditions of the policy, hence the insurance

company is not liable to pay the compensation and that the learned

Commissioner erred in fixing the liability on it.

16. On careful examination of Ex. B-1 Copy of Insurance policy

issued in respect of the bus bearing No. AAJ-7578 clearly establishes

that the deceased was only a labourer on the insured vehicle and

premium has been collected to cover the risk of W.C 1-employee. Ex.B-1

Insurance Policy shows that the vehicle insured is a passenger

carrying commercial vehicle and apart from 51 passengers and driver

cum owner any risk to 1-employee is covered within the policy for

which extra premium of Rs.25/- has been paid by the opposite party

No.1.

17. It is pertinent to note that when the terms of policy covers the

risk of other employees in addition to the statutory coverage and the

premium collected for such special coverage is not proportionate to the 8 MGP,J CMA_921_2011

premium prescribed in the Tariff Regulations, it is not necessary that

the liability of the insurer should be judged from the point of the

premium collected. If the terms of the policy are clear and

unambiguous, despite collection of a lesser premium, the liability of

the insurer should be interpreted as per the clear terms of the policy

and not by the amount of premium collected. It is also possible that

lesser premium might have been collected by mistake or inadvertently.

If there is conflict between the terms of policy and the amount of

premium collected, the terms of policy shall prevail. In the instant

case, the terms of policy covers one employee in addition to driver and

passengers by way of a special contract. No doubt for a passenger

vehicle, there is no statutory coverage for a cleaner. But when

additional workmen are covered by a contractual liability, the liability

of a cleaner would get included in the special coverage of one workman

for which additional premium of Rs.25/- is collected by the appellant

insurance company.

18. Thus, the very clause mentioned in the policy clearly

establishes that the risk of deceased cleaner, who was working on the

insured vehicle, is also covered within the word 'employee'. Thus, the

legal liability of insurance arises based on the terms and condition of

the policy and on careful observation of the Ex. B1 insurance policy, it

shows that under entry (a) of the schedule of insurance premium the 9 MGP,J CMA_921_2011

policy covers risk of one workman on the insured vehicle. Thus, this

Court is of the opinion 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. 3 could not place any material to establish that the existing

insurance policy (Ex. B-1) did not cover the liability of the employee

like cleaner on the said vehicle. Therefore, argument of appellant

insurance company that policy covers the risk of driver and passenger

only and not the cleaner cannot be accepted.

19. Therefore, so far as factual details of present case is

concerned, it is quite, clear and certain that deceased was on duty as

cleaner on the said bus and it can certainly be said that the death of

the deceased in the fatal accident occurred on 27.01.2006 is arising

out of and in the course of his employment. Thus, the said accident

falls within the ambit of in course of employment.

20. The learned Standing Counsel appearing for the insurance

company has though pleaded in many substantial questions of law,

but the same on scrutiny have been found to be questions of fact. The

learned counsel appearing for the insurance company was heard in

extenso on the aforesaid questions of fact. Since the nature of

injuries/disablement, the age of the workmen is factual in nature, no 10 MGP,J CMA_921_2011

appeal would lie against such finding of fact. Section 30 of the Act is

quite explicit and prohibits entertaining of an appeal against an award

of the Commissioner, unless it raises substantial questions of law. 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. It would

be contextually relevant to note the observations made by Hon'ble

Apex Court in the case of NORTH EAST KARNATAKA ROAD

TRANSPORT CORPORATION V/s SUJATHA, 1 in para No.9,10,11 of

the judgment it was held as follows:

"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

1 AIR 2018 (SC) 5593

11 MGP,J CMA_921_2011

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."

21. Thus, almost all the contentions raised in the grounds of

appeal are based essentially on 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 and it is the Commissioner, who is the last authority to

decide the question of fact.

22. In view of these facts and circumstances and considering the

principle laid down in the above said authority, I do not find any

substance in the appeal so as to disturb the reasoned order passed by

learned Commissioner awarding compensation in favour of applicant.

Hence, the appeal is devoid of merits and is liable to be dismissed.

23. Accordingly, the Civil Miscellaneous Appeal is dismissed.