M/S. Shriram General Insurance ... vs Kamble Ganapathi And 3 Others
2023 Latest Caselaw 4031 Tel

      THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

        CIVIL MISCELLANEOUS APPEAL No.1017 of 2012

JUDGMENT:

1. The present civil miscellaneous appeal has been directed against

the order dated 03.05.2012 in W.C.No.131 of 2011 on the file of the

Commissioner for Employees' Compensation and Assistant

Commissioner for Labour-IV, Hyderabad (hereinafter referred to as

'Commissioner'). The claim petition in the said case has been filed by

respondent Nos.1 to 3 herein seeking compensation for death of one

Sri Davalu Laxman Kamble @ Davulu (hereinafter referred to as

'deceased') in an accident on 03.05.2010 and the same was partly

allowed granting an amount of Rs.4,10,572/- 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 Nos.1 to

3 herein are applicants and respondent No.4 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 brief facts of the case of the applicants are that the deceased

was employed as labourer with opposite party No.1 on his lorry

bearing No.AP 26 U 0078 for loading and unloading paddy powder.

On 03.05.2010 at about 01:00 hours, when the deceased was loading

paddy powder bags in the lorry, the driver of the lorry suddenly drove

the lorry in rash and negligent manner. Due to which, the deceased

came into contact with 11 KV electric wire and died on the spot due to

electrocution. The said accident was registered in Crime No.80 of

2010 on the file of Maheswaram Police Station.

4. It is the further case of the applicants that the deceased was

being paid an amount of Rs.6,000/- per month at Rs.200/- per day by

opposite party No.1. He was aged about 32 years as on the date of the

accident. The lorry of opposite party No.1 was insured with opposite

party No.2 and the said policy was in force as on the date of accident.

The deceased died during the course and out of his employment.

Hence, the applicants filed the present claim petition seeking

compensation of Rs.8,00,000/- with interest at 12% per annum from

the date of the accident till the date of realization.

5. In spite of service of notice, opposite party No.1 remained ex

parte. Opposite party No.2 filed its counter and contended that there

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was no employee and employer relationship between the deceased and

opposite party No.1. The occurrence of accident, death of the

deceased and wages paid to him were denied. It is also denied that

the driver of the lorry was having a valid driving license at the time of

occurrence of accident. It is their further case that the risk of the

deceased as labourer is not covered by the policy as no separate

premium was paid by opposite party No.1. Accordingly, prayed to

dismiss the claim petition.

6. In support of their case, the applicants got examined A.W.1 and

got marked Exs.A-1 to A-12. Opposite party No.1 was set ex parte.

Opposite party No.2 filed its counter and cross-examined A.W.1, but,

in spite of granting sufficient time and opportunity failed to adduce

evidence and advance arguments before the Commissioner. Hence,

the evidence of opposite party No.2 was forfeited and their arguments

were treated as nil.

7. On the basis of the above pleadings, the Commissioner framed

the following points for consideration:

"1.Whether the deceased is a workman within the meaning of the Act?

2. Whether the deceased died during the course and out of his employment?

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3. If yes, who are liable to pay compensation to the dependants of the deceased?

4. What is the quantum of compensation entitled by the dependants of the deceased?"

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

Commissioner held that the applicants have successfully proved their

case. Hence, the claim petition was partly allowed holding that both

the opposite parties were jointly and severally liable to pay

compensation and granted an amount of Rs.4,10,572/- towards

compensation payable to the applicants.

9. Heard, the learned counsel for the appellant/opposite party

No.2. In spite of issuance of notice, none appeared and there is no

representation from the respondents.

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

insurance company contended that though, the applicants have not

established the employee and employer relationship between the

deceased and opposite party No.2, without any evidence, the

Commissioner has wrongly given findings that there is such

relationship between them. He further contended that A.W.1, who is

applicant No.3, has clearly admitted that she did not file any evidence

to prove the employment, age and wages of the deceased. The

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Commissioner has also not given any findings with regard to the

contention of insurance company that insurance policy does not cover

labourers.

11. Now the point for determination is as follows:

"Whether the applicants are entitled for the compensation as granted by the Commissioner?"

Point:-

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

Admittedly, except, filing counter and cross-examining A.W.1, the

opposite party No.2 did not adduce any evidence before the

Commissioner. In fact, even after giving sufficient opportunity, it did

not choose to advance any arguments before the Commissioner.

Accordingly, the Commissioner was inclined to forfeit the evidence and

treat arguments of opposite party No.2 as nil.

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

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

admittedly, there is no specific evidence placed on record such as

salary certificate or employment details to prove that the deceased was

employed with opposite party No.1. When such documentary evidence

is absent, the oral evidence has to be considered. The best person to

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speak about employment of the deceased, apart from himself, is his

employer i.e., opposite party No.1. In the present case, opposite party

No.1 is set ex parte. The applicants through their claim petition and

the evidence of A.W.1 have contended that there is employee and

employer relationship between the deceased and opposite party No.1.

The documents marked as Exs.A-1 to A-7, which are police records

support the case of the applicants that the deceased was working as

labourer. Further, Ex.A-8 to A-12, which are documents pertaining to

the vehicle involved in the accident, reflect the name of opposite party

No.1 as owner of the vehicle. In the said circumstances, opposite

party No.2, which is disputing the said relationship has to come up

with evidence to disprove the case set up by the applicants, but the

same is not done. It only relied upon the cross-examination of A.W.1,

where the witness admitted that she did not file any proof of

employment, age and wage of her deceased husband. The said

admission does not clearly prove that, there is no employee and

employer relationship between the deceased and opposite party No.1.

Apart from that, opposite party No.2 did not adduce any oral or

documentary evidence before the Commissioner to prove that there

was no employee and employer relationship. Furthermore, it did not

advance any arguments to clearly put forth its contentions before the

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Commissioner. In the said circumstances, it cannot contend before

this Court that the findings of the Commissioner with regard to

accepting the employee and employer relationship between the

deceased and opposite party No.1 suffer from perversity. The case of

the applicants with regard to employee and employer relationship

between the deceased and opposite party No.1 is clearly established

through Exs.A-1 to A-12. Hence, the contention of the opposite party

No.2 with regard to employee and employer relationship is unmerited

and hereby rejected.

14. With regard to age and wages of the deceased, it is the case of

the applicants that the deceased was aged about 32 years at the time

of accident and he was earning an amount of Rs.6,000/- per month by

working as labourer. The Commissioner has clearly held that the

applicants have failed to prove that the deceased was earning an

amount of Rs.6,000/- per month by working as labourer. Hence, he

considered the minimum wages of labourer while determining the

compensation. There was no specific document showing the age of the

deceased and the applicants have contended that he was 32 years at

the time of accident. The only documentary evidence available to

prove the age of the deceased was post mortem examination report

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under Ex.A-5. There was no contrary evidence set up by opposite

party No.1 to disbelieve such a document. In the said circumstances,

the Commissioner relied upon the Ex.A-5 to determine the age of the

deceased while calculating the compensation. The said findings with

regard to age and wages do not suffer from any illegality and

interference of this Court is unwarranted.

15. A perusal of the insurance policy under Ex.A-12 clearly shows

that the policy is subject to IMT Endorsement printed

therein/attached to: IMT-40, IMT-28, IMT-39 and IMT-21. IMT-39

speaks of covering the driver, cleaner, conductor and the persons

employed for loading and unloading, subject to number of persons

permitted on the vehicle. The deceased was travelling in the lorry as

person employed for loading and unloading. The policy shows that the

vehicle was goods carrying vehicle. Further, in the absence of

contrary evidence, the employee and employer relationship between

the deceased and opposite party No.1 is proved. It is also proved that

the deceased was working as labourer. Furthermore, opposite party

No.2, except mere contentions did not adduce any kind of evidence to

support its contention that the deceased is not covered under the

policy. Under these circumstances, this Court feels that the mention

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in the insurance policy that it is subject to IMT-39 and conclusion that

the deceased was working as labourer is suffice to come to the

conclusion that the deceased is covered under the insurance policy.

The findings of the Commissioner in this regard also do not suffer

from any perversity. Therefore, the contention of the

appellant/opposite party No.2 is unmerited and the same is rejected.

16. It is the case of the applicants that the deceased was employed

as labourer and during the course and out of his employment, while

working on the lorry due to the negligence of the lorry driver, he came

into contact with the electric wire and died due to electrocution.

Except, mere denial, no cogent and convincing evidence has been

brought on record by opposite party No.2 to disprove the case set up

by the applicants. Further, opposite party No.2 did not raise any

grounds before the Commissioner as it failed to advance arguments.

In the said circumstances, it cannot raise any such grounds before

this Court. Therefore, this Court feels that the Commissioner has

properly assessed the entire factors and no interference is required by

this Court. The appeal is devoid of merits and the same is liable to be

dismissed.

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

confirming the order dated 03.05.2012 in W.C.No.131 of 2011 on the

file of the Commissioner for Employees' Compensation and Assistant

Commissioner for Labour-IV, Hyderabad. There shall be no order as

to costs. Miscellaneous applications pending, if any, shall stand

closed.

______________________________ JUSTICE M.G.PRIYADARSINI

Date: 15.11.2023 GVR