Paru Devi D vs V Ravinder And Another
2023 Latest Caselaw 3762 Tel

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

       CIVIL MISCELLANEOUS APPEAL No.640 of 2016

JUDGMENT:

1. The present civil miscellaneous appeal has been directed

against order dated 16.08.2016 in W.C.No.9 of 2013 on the file of

the Commissioner for Employees' Compensation and Assistant

Commissioner of Labour-II (FAC), Hyderabad, (hereinafter referred

to as 'the Commissioner'), whereunder, the claim of the appellant

herein for grant of compensation of Rs.12,00,000/- along with

interest at 12% per annum for death of her husband Sri Gebaram

@ Prabhuram Dewasi (hereinafter referred to as 'deceased') was

dismissed. Aggrieved by the same, the present civil miscellaneous

appeal is filed at the instance of the applicant before the

Commissioner.

2. The appellant herein is applicant and respondents herein are

opposite parties before the Commissioner. For the sake of

convenience, the parties are hereinafter referred to as they were

arrayed before the Commissioner.

3. The brief facts of the case of the applicant are that deceased

was workman within the meaning of the Employees' Compensation

Act, 1923 (for short 'the Act') and he was working as driver for

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Tavera car bearing No.AP 13 M 5352, which was owned by opposite

party No.1 and insured with opposite party No.2. On 25.01.2013,

while the deceased was on duty as a driver of the said vehicle, he

was proceeding from Hinganghat towards Nagpur. At about 05:00

AM, when he reached Jamchowk in the limits of Samudrapur

Police Station, an unknown trailer, which was coming from Nagpur

to Chandrapur driven by its driver in rash and negligent manner in

high speed, dashed the vehicle of the deceased. As a result, the

deceased sustained grievous injures with multiple fractures and

died, during his course of employment as driver. In this regard,

Crime No.12 of 2013 was registered with Samudrapur Police

Station of Maharastra State.

4. According to the applicant, the deceased was aged about 39

years at the time of accident and was being paid an amount of

Rs.10,000/- per month towards salary and Rs.100/- per day

towards batha by opposite party No.1. Opposite party No.1 had

knowledge of the accident and paid some amount to the applicant

towards funeral expenses of the deceased, but denied to pay

compensation stating that the vehicle involved in the accident was

insured with opposite party No.2 and risk is covered by opposite

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party No.2. Hence, the applicant filed the present case before the

Commissioner seeking compensation of Rs.12,00,000/- with

interest at 12 % per annum from the date of accident till the date of

realization.

5. Initially, on service of notice opposite party No.1 was

represented by one advocate, but he failed to file counter and

consequently, opposite party No.1 was set ex parte by the

Commissioner and opposite party No.2 filed its counter. However,

after the matter was reserved for orders, the same was re-opened

and another advocate filed vakalath on behalf of opposite party

No.1 along with counter.

6. The insurance company i.e., opposite party No.2 filed its

counter before the Commissioner denying the case set up by the

applicant that deceased was working as driver of the vehicle

bearing No.AP 13 M 5352. The employee and employer relationship

between the deceased and opposite party No.1 was denied. The

payment of salary and batha, age of the deceased and holding of

valid driving license and other averments of the claim petition filed

by the applicant were denied by opposite party No.2 and prayed to

dismiss the claim petition.

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7. It is the case of opposite party No.1 that the deceased was

working as on and off driver for his vehicle which was involved in

the accident. The deceased asked opposite party No.1 to give his

vehicle along with another driver to visit Mahakumbha Mela in

Maharastra State along with his family and friends. Accordingly,

opposite party No.1 gave the vehicle to the deceased as he was

working as on and off driver for his vehicle on the condition that

his family and friends should bear diesel and other expenses. He

also sent one Rajendra as additional driver. While so, on

25.01.2013, when the deceased was performing his duties as driver

of the said vehicle, at about 05:00 AM when the vehicle reached

Jamchowk, an unknown trailer coming from Nagpur driven in rash

and negligent manner dashed the vehicle of the deceased. Due to

the said accident, the in-mates of the vehicle including both the

drivers sustained injuries and the deceased succumbed to such

injuries on the same day at about 06:45 AM.

8. According to opposite party No.1, he used to pay an amount

of Rs.400/- per day towards wages along with Rs.100/- batha and

on an average, the deceased used to earn Rs.10,000/- per month

excluding daily batha. He also stated that the deceased was aged

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about 45 years on the date of accident. Further, opposite party

No.1 stated that he claimed an amount of Rs.4,00,000/- towards

vehicle damages from opposite party No.2, as the vehicle was

insured with them vide policy bearing No.61150131120100003852

valid from 07.12.2012 to 20.10.2013. He also stated that both the

deceased and other driver were holding valid driving licenses.

According to him, opposite party No.2 being insurance company is

liable to pay compensation to the applicant, if they are entitled for

any.

9. In support of her case, the applicant examined herself as

A.W.1 and Exs.A-1 to A-12 were marked. Opposite party No.2, got

examined its Assistant Manager as R.W.1 and got Exs.B-1 to B-8

marked, in support of its case. Opposite party No.1 got examined

himself as R.W.2 and got marked Exs.C-1 and C-2.

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

Commissioner framed the following issues:

"1. Whether the deceased died due to the injuries sustained in the accident occurred on 25.01.2013 during the course and out of his employment as a driver on the Taver car bearing No.AP 13 M 5352 under the employment of O.P.1?

2. If yes, who are liable to pay compensation to the applicant?

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

11. After considering the pleadings and evidence on record, the

Commissioner dismissed the claim petition of the applicant on the

ground that she failed to establish employee and employer

relationship between the deceased and opposite party No.1 and

that the deceased died during such course of employment.

12. Heard both sides.

13. Learned counsel for the appellant/applicant contended that

the Commissioner has not properly considered the evidence placed

on record by the applicant and held that there was no employee

and employer relationship between the deceased and opposite party

No.1. The evidence of opposite party No.1 also clearly

demonstrates that the deceased was employed with him as driver of

the vehicle, which was involved in the accident. He also contended

that deceased was driving the vehicle on the date of accident and

he died during the course and out of his employment. As such,

opposite party No.2 i.e., the insurance company is liable to pay

compensation for his death.

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14. Learned counsel for respondent No.2/opposite party No.2 i.e.,

insurance company contended that the evidence on record clearly

shows that the deceased, though was driving the vehicle on the

date of accident, he was not having employee and employer

relationship with the owner of the vehicle. The Commissioner has

considered the entire evidence on record and rightly held that there

was no employee and employer relationship between the deceased

and opposite party No.1. The accident did not occur during the

course and out of his employment as driver of the vehicle owned by

opposite party No.1.

15. Now, the point for determination is as follows:

"Whether the findings of the Commissioner in holding that there was no employer and employee relationship between the deceased and opposite party No.1 suffer from any perversity, so as to give raise to substantial question of law?"

Point:-

16. A perusal of the entire evidence and pleadings on record

shows that the deceased was working as on and off driver of the

Tavera vehicle bearing No.AP 13 M 5352, which is owned by

opposite party No.1. While so, on 25.01.2013, while the deceased

was driving the said vehicle proceeding from Hinganghat towards

Nagpur, the said vehicle met with an accident with one unknown

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trailer which was being driven in rash and negligent manner at

Jamchowk. The deceased sustained grievous injuries and

succumbed to the same, while he was being shifted to the hospital.

The deceased was aged about 39 years and was paid an amount of

Rs.10,000/- per month towards wages and Rs.100/- per day

towards batha by opposite party No.1. In this regard, Crime No.12

of 2013 was registered with Samudrapur Police Station of

Maharastra State.

17. The evidence of opposite party No.1 as R.W.1 shows that he

supports that the deceased was working as on and off paid driver of

the above said vehicle. He also admitted the wages paid to the

deceased as claimed by the applicant. However, he stated that the

deceased has approached him to give his vehicle along with another

driver for going to Mahakumbha Mela, Nagpur along with his family

and friends. Accordingly, he gave the said vehicle to the deceased

and sent one Mr. Rajendra as another driver. On 25.01.2013, at

about 05:00 AM, when they were proceeding from Hinganghat

towards Nagpur, they halted at Hinganghat railway gate. Then, Mr.

Rajendra informed that he was tired and asked the deceased to

drive the vehicle. The deceased was driving the vehicle and when

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the vehicle reached Jamchowk, the vehicle met with an accident as

one unknown trailer, which was driven in rash and negligent

manner dashed the vehicle driven by the deceased. All the inmates

of the vehicle sustained grievous injuries, but the deceased, who

was driving the vehicle, succumbed to such injuries.

18. It is contended by opposite party No.2 that the final report

and the statements of the witnesses recorded in Crime No.12 of

2013 registered on the file of Police Station Samudrapur,

Maharastra State, clearly shows that the deceased was driving the

vehicle, but the main driver was Mr. Rajendra. The said

documents also show the occupation of the deceased as shop of

electrical goods, but not as driver. Hence, the deceased was not

driver of the vehicle and there is no employee and employer

relationship between the deceased and opposite party No.1.

19. It is not disputed that the vehicle was driven by the deceased

at the time of accident. It is not disputed that there was valid

insurance policy and the deceased was holding a valid driving

license. The occurrence of accident and death of the deceased is

also not disputed. The only dispute is with regard to employee and

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employer relationship between the deceased and opposite party

No.1.

20. Admittedly, except oral evidence, no documentary evidence is

placed on record by the applicant and opposite party No.1 to show

that the deceased was working as driver of the vehicle involved in

the accident and that the accident occurred during the course and

out of his employment. On the contrary, the evidence of opposite

party No.1 clearly shows that the deceased was working as on and

off driver with him and on the date of accident, he had taken the

vehicle along with another driver to go to Mahakumbha Mela along

with his family and friends. Opposite party No.1, who was

examined as R.W.2 has clearly admitted in his cross-examination

that he has not instructed the deceased to take his vehicle on the

date of accident. In fact, he stated that he has given the vehicle

along with another driver to the deceased on the condition that

diesel and other expenses shall be borne by his friends and family.

21. The cross-examination of R.W.1 shows that at one point of

time, he states that the deceased and Rajendra were performing

duties as drivers to his car at the time of accident. On the other

hand, he says that he has not instructed the deceased to take his

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vehicle and he only gave the vehicle at the request of the deceased

along with another driver for use of himself, his friends and family.

Opposite party No.1 or the applicant has not filed any document to

show that the deceased was employed as driver of the said vehicle.

22. All these circumstances create a doubt on the stand taken by

the applicant and opposite party No.1 that the deceased was

driving the vehicle at the time of accident in capacity of driver of

the vehicle. The evidence of opposite party No.1 creates doubt over

the employee and employer relationship between him and the

deceased. Except his oral evidence, no other documentary evidence

is produced to prove the case set up by him in support of the

applicant.

23. Learned counsel for the appellant/applicant relied upon a

bunch of decisions of various Courts, but the same does not come

to his rescue to support the stand taken by the applicant.

24. In view of the above, this Court is of the considered opinion

that the evidence on record shows that the deceased has taken the

vehicle for his personal use along with another driver and he was

not driving the vehicle on the date of accident in capacity of the

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employee of the owner of the vehicle i.e., opposite party No.1.

Though, he was driving the vehicle at the time of accident, the

same was not out of his employment as driver. He was driving the

vehicle, as the driver of the vehicle was tired. Hence, he cannot be

treated as paid driver of the said vehicle to come under the policy

obtained by opposite party No.1 with opposite party No.2. The

insurance company cannot be held liable and this appeal is devoid

of merits and the same is liable to be dismissed.

25. In the result, the civil miscellaneous appeal is dismissed

confirming the order dated 16.08.2016 in W.C.No.9 of 2013 on the

file of the Commissioner for Employees' Compensation and

Assistant Commissioner of Labour-II (FAC), Hyderabad. There

shall be no order as to costs. Miscellaneous applications, if any

pending, shall stand closed.

______________________________ JUSTICE M.G.PRIYADARSINI

Date: 09.11.2023 GVR