United India Insurance Co., Ltd., vs Smt. Chowdamma , Susheela And ...
2023 Latest Caselaw 3511 Tel

      THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

         Civil Miscellaneous Appeal No.398 OF 2011

JUDGMENT:

Aggrieved by the order dated 25.11.2010 in W.C.No.180 of

2008 passed by the learned Commissioner for Workmen's

Compensation and Assistant Commissioner of Labour-IV,

T.Anjaiah Karmika Samkshema Bhavan, RTC X roads,

Hyderabad, the opposite part No.2 - United India Insurance

Company Limited has filed the present appeal to set aside the

impugned order.

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

be referred as per their array before the learned Commissioner.

3. The brief facts of the case are as under:

The applicant has filed an application under the

provisions of the Workmen's Compensation Act, 1923 (now

amended as Employees' Compensation Act, 1923) claiming

compensation of Rs.3,50,000/- for the injuries sustained by her

in the accident that occurred during the course of her

employment as labourer under opposite party No.1 on tipper

bearing No. APO 5708. On 27.6.2008 she was engaged as

labourer for loading and unloading purpose and after unloading

rock pieces in the said tipper and as per the instructions of her 2 MGP,J CMA_398_2011

employer, she along with other labourers, was proceeding on the

said tipper from Kokapetgutta to Narsingi village and at about

5-00 p.m., when the tipper reached Sabithanagar bus stop, the

tipper was turned turtle due to the rash and negligent driving of

the driver. As a result, she sustained fractures on her both

hands and other serious injuries all over the body and

immediately she was shifted to Osmania General Hospital,

Hyderabad, and later she took treatment at private hospitals.

Thus, the applicant has sustained injuries during the course

and out of her employment with the opposite party No.1. Based

on the complaint, the Police, Narsingi P.S. registered a case in

crime No.176 of 2008. According to the applicant, she was

aged about 35 years and used to get Rs.3,500/- per month as

her wages. Thus the opposite party Nos.1 and 2, who are owner

and insurer of the tipper bearing No. APO 5708, are jointly and

severally liable to pay compensation. Hence the claim.

4. Opposite party No.1, owner of the tipper received notice,

engaged Mr.G.Sudhakar Reddy, Advocate, who filed vakalath

but did not file any counter. Opposite party No.2 - Insurance

Company filed counter denying the employment of the applicant

as a labourer on tipper under opposite party No.1 including the

manner of accident, age and wages of the applicant and also 3 MGP,J CMA_398_2011

denied the coverage of risk of the applicant under the policy. It

is further contended that as per the police records, the

applicant was travelling as a gratuitous passenger in the vehicle

for purchasing household articles at Narsingi village, and as

such, opposite party No.2 is not liable to pay compensation to

the applicant. The compensation claimed by the applicant is

excessive and exorbitant. Hence prayed to dismiss the

application.

5. Before the learned Commissioner, on behalf of the

applicants, AWs.1 and 2 were examined and got marked Exs.A1

to A6. On behalf of opposite party No.1 none were examined

and no document was marked. On behalf of opposite party

No.2, RW.1 was examined and Exs.B1 to B3 were marked.

6. The learned Commissioner after considering the evidence

on record, both oral and documentary, has awarded

Rs.2,57,151/- towards compensation, Rs.38,572/- towards

interest, Rs.514/- towards stamp fee and Rs.500/- towards

Advocate fee. Thus in all the learned Commissioner has

awarded the compensation of Rs.2,96,737/-.

                                  4                           MGP,J
                                                      CMA_398_2011




7.    Aggrieved    by   the   compensation     awarded     by    the

Commissioner, the opposite party No.2 - Insurance Company

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

8. Heard Sri A.V.K.S. Prasad, learned Standing Counsel for

the appellant-Insurance Company and Sri T.Viswarupa Chary,

learned counsel for the applicant.

9. The main contention of the learned Standing Counsel for

the opposite party No.2-Insurance Company is that though the

labourer on the lorry of the insured was not covered under

Ex.B1, as the insured had not paid the required premium to the

Insurance Company, the learned Commissioner instead of

absolving the liability of the insurer of the lorry, has erroneously

fixed the liability on the appellant-Insurance Company. It is

further contended that though the applicant has sustained 35%

permanent disability, the learned Commissioner committed

error in taking the loss of earning capacity of the applicant at

70%. Hence, prayed to allow the appeal and to set aside the

order passed by the learned Commissioner.

10. On the other hand, the learned counsel for the applicant

contended that the learned Commissioner after considering all

the material aspects has rightly awarded the compensation and 5 MGP,J CMA_398_2011

thus, interference of this Court in the impugned order is

unwarranted.

11. In view of rival contentions made by both the parties, this

Court has perused the entire material available on record. The

applicant was examined AW.1 and reiterated the petition

averments and further stated that she sustained fractures on

her both hands and even after taking better treatment, she

suffered with permanent disability. On the other hand, RW.1

who is the Senior Assistant of appellant-Insurance Company

was examined and he stated that as per the statement of the

applicant recorded by the Investigation officer, she stated that

she is eking out her livelihood by stone cutting work at

Sabithangargutta and that on 27.6.2008 the applicant and one

Smt.G.Mallamma and her son have boarded the tipper bearing

No. APO 5708 for purchasing essential commodities at Narsingi

village and on the way, due to the rash and negligent driving of

the driver of tipper, the tipper met with the accident and the

applicant has sustained injuries and Smt.G.Mallamma and her

child died due to the injuries sustained in the accident and that

the labourers viz., Mallappa and Husainappa also died while the

driver sustained injuries and as such, there was no employee-

employer relationship between the applicant and opposite party 6 MGP,J CMA_398_2011

No.1. However, as per Ex.A1 F.I.R. and Ex.A3 final result, the

accused driver of tipper by name Balakrishna along with tipper

labourers viz., G.Mallamma, her son Ramu who is 5 months

old, Mallappa, Hussainappa and Chowdamma were travelling in

the said tipper at the time of accident and it was clearly

mentioned as tipper labour employed on tipper. Further

summons were issued twice to the Investigating Officer were not

served and opposite party No.2 has not taken steps to bring him

to the witness box to prove the contents of Ex.B2. Therefore,

Ex.B2 remained unproved. Therefore, the learned Commissioner

considering the evidence of AW.1, coupled with Ex.A1 to A3

rightly held that the applicant was a labourer employed on the

tipper bearing No. APO 5708 of opposite party No.1 and on

27.6.2008 while the applicant along with other labourers was

travelling on the said tipper, met with accident when the tipper

fell in a ditch due to the rash and negligent driving of its driver

and that the applicant has sustained grievous injuries in the

said accident during the course and out of employment.

12. Coming to the injuries and the disability sustained by the

applicant, she stated that she sustained fractures on her both

hands apart from other serious injuries all over the body.

According to Ex.A2 C.C. of medico legal case record issued by 7 MGP,J CMA_398_2011

the Osmania General Hospital, the applicant has sustained

injury to left forearm, avulsion injury to right arm and

tenderness to right leg. In support of her contention, she

examined AW.2 Orthopedic Surgeon. He stated that the

applicant has sustained closed fracture of radius ulna and that

he came to him with painful restricted movements of left elbow

and wrist, which is grievous in nature and he assessed the

permanent disability sustained by the applicant at 35% and

estimated the loss of earning capacity at 70% as a labourer. He

issued Ex.A4 disability certificate to that effect. It is important

to note that a laborer who has experienced reduced bone

formation resulting in painful, restricted movements of the left

elbow may not be able to work with the same efficiency as

before the accident. Therefore, considering the disability

sustained by the applicant, the learned Commissioner has

rightly assessed the loss of earning capacity of the applicant at

70%. Therefore, contention of the learned Standing Counsel

that though the applicant has sustained 35% permanent

disability, the learned Commissioner committed error in taking

the loss of earning capacity of the applicant at 70%, is

unsustainable.

                               8                         MGP,J
                                                 CMA_398_2011

13. Now coming to the quantum of compensation, according

to the applicant, she was aged 35 years as on the date of

accident and was paid Rs.4,500/- per month. However, as

there is no documentary evidence on record to prove the income

of the applicant, considering her occupation as labourer, the

learned Commissioner has taken the income of the applicant at

Rs.3,107/- per month as per the G.O.Ms.No.83 of L.E.T & F

(Lab-II) Department dated 22.11.2006. Considering the age of

the applicant as 35 years, the learned Commissioner applied

relevant factor of '197.06' and awarded compensation of

Rs.2,57,151/-. The learned Commissioner further awarded an

amount of Rs.514/- towards stamp fee, Rs.500/- towards

Advocate fee and Rs.38,572/- towards interest and in total an

amount of Rs.2,96,737/-, which is just and reasonable.

14. Further the learned Standing Counsel for the appellant-

Insurance Company contended that the labourer on the tipper

of the insured were not covered under Ex.B1, as the insured

had not paid the required premium to the Insurance Company.

In the cross-examination RW.1 stated that Rs.50/- was paid in

addition to basic premium of Rs.6,090/-. However, he denied

that the basic premium paid covers one driver, one cleaner and

six labourers. As seen from Ex.B1 insurance policy, it was 9 MGP,J CMA_398_2011

issued subject to endorsement of IMT 39. It covers legal liability

to persons employed in connection with the operation and/or

maintenance and/or loading and/or unloading of motor vehicles

for goods vehicle. Therefore, the risk of labourers working on

the insured vehicle, are also covered. Hence, this Court is of the

considered opinion that the contention of the learned Standing

Counsel for the appellant-Insurance Company that the

applicant being the labourer on tipper of the insured were not

covered under Ex.B1, is unsustainable. Thus, this Court is of

the considered opinion that the opposite party Nos.1 and 2 are

jointly and severally liable to pay compensation to the

applicants. In view of the above facts and circumstances, there

are no grounds to interfere with the findings of the learned

Commissioner and the Civil Miscellaneous Appeal is devoid of

merits and it is liable to be dismissed.

15. Accordingly, the Civil Miscellaneous Appeal is dismissed.

There shall be no order as to costs.

Pending Miscellaneous applications, if any, shall stand

closed.

______________________________ JUSTICE M.G.PRIYADARSINI

02.11.2023 Pgp