United India Insurance Company ... vs D. Lajaraiah And 3 Others
2023 Latest Caselaw 4073 Tel

         HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

         CIVIL MISCELLANEOUS APPEAL No.1287 of 2011

JUDGMENT:

1. The present Civil Miscellaneous Appeal has been directed

against order dated 06.12.2010 in W.C.No.213 of 2007 on the file of

the Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour-I, Hyderabad, (hereinafter referred to as 'the

Commissioner'). The said case was filed by respondent Nos.1 to 3

herein seeking compensation for death of one D. Venkatesh

(hereinafter referred to as 'deceased') in an accident on 06.06.2007

and the same was allowed by the Commissioner granting

compensation of Rs.4,13,325/-. 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.

3. The applicants have filed the present appeal seeking

compensation for death of the deceased. The deceased was working as

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driver on tractor and trailer bearing Nos.AP 37 AE 8957 and AP 04 U

3107, which are owned by opposite party No.1. He was on duty on

06.06.2007 and after unloading earth, he was going towards Ravirala

village tank and when he reached near Gade Chinna Mallaiah land,

the tractor accidentally fell down into the ditch, due to which, the

deceased sustained serious injuries and died while he was being

shifted to hospital. A case in Crime No.236 of 2007 was registered in

Pahadisharif Police Station and investigation was taken up. The

applicants also stated that the deceased was aged about 22 years at

the time of the accident and he died during the course and out of his

employment with opposite party No.1. The deceased was earning an

amount of Rs.3,500/- per month towards wages from opposite party

No.1. Therefore, both the opposite parties were jointly and severally

liable to pay compensation for the death of the deceased.

4. Opposite party No.1 remained ex parte. Opposite party No.2 filed

its counter denying the age, wages of the deceased, manner of the

accident and employee and employer relationship between the

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

was holding a valid driving license at the time of the accident.

Opposite party No.2 also filed its additional counter stating that

deceased was not holding valid driving license and risk is not covered

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under insurance policy as opposite party No.1 did not pay any

premium towards coverage of risk of driver. Hence, prayed to dismiss

the claim petition.

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

got marked Exs.A-1 to A-6. Opposite party No.2 got examined R.W.1

and got marked Ex.B-1, in support of its case.

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

Commissioner framed the following issues for consideration:

"1. Whether the deceased late Sri D. Venkatesh died due to the injuries sustained in the accident on 06.06.2007 during the course and out of his employment as driver on the tractor bearing No.AP 37 AE 8957 under the employment of opposite party No.1?

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?"

7. After considering the evidence and documents filed by both

sides, the Commissioner awarded an amount of Rs.4,13,325/-

towards compensation to the applicants. Aggrieved by the same, the

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

insurance company.

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8. Heard, the learned counsel for appellant/opposite party No.2

and the learned counsel for respondent Nos.1 to 3/applicants. The

appeal against respondent No.4/opposite party No.1 was dismissed by

order of this Court dated 12.07.2016.

9. The main contention of the learned counsel for the

appellant/opposite party No.2 is that no extra premium is paid to cover

the risk of driver and further, there is no valid and effective driving

license to the deceased at the time of accident. However, the

Commissioner without considering the same has awarded

compensation. Hence, he prayed to set aside the order passed by the

Commissioner by allowing the present appeal.

10. Per contra, the learned counsel for respondent Nos.1 to

3/applicants argued that the Commissioner has considered all the

aspects and granted just and reasonable compensation to the

applicants for which interference of this Court is not required.

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

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

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Point:-

12. This Court perused the entire evidence placed on record.

Applicant No.1, who is father of the deceased was examined as A.W.1

and deposed reiterating the contents of the claim petition. He also

deposed with regard to the manner of the accident. In his cross-

examination, he has stated that he is not eye-witness to the accident

and he has not given complaint to the police regarding the accidental

death of his son. He denied the suggestion that the deceased was not

working under opposite party No.1 and that no documentary proof is

filed to show the age and employment of the deceased. He admitted

that he has not filed driving license of his son. He also denied the

suggestion that Exs.A-3 to A-6 were created for the purpose of this

case.

13. Opposite party No.2 got examined its Assistant Manager (Legal)

as R.W.1. In his evidence, he stated that the driver is not covered

under the insurance policy under Ex.B-1 and that the deceased was

not holding valid driving license. In his cross-examination, R.W.1

stated that any policy will usually cover the risk of driver. However, he

has further stated that in the present policy there is an endorsement

written with pen that 'driver is not covered in this policy'.

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14. It is pertinent to state that the applicants apart from examining

A.W.1 got marked Exs.A-1 to A-6. Ex.A-1 is First Information Report

(FIR) and Ex.A-4 i.e., final report disclose that based on the complaint

police took up investigation and after thorough investigation laid

charge sheet. It is stated by the police that employment of the

deceased is driver on tractor bearing No.AP 37 AE 8957 and the

accident occurred on 06.06.2007, while the deceased was driving the

said tractor. Ex.A-3 is postmortem examination report, which shows

that the cause of death of the deceased was due to head injury. The

documents under Exs.A-1 and A-2 amply establish that the deceased

was working as driver of tractor bearing No.AP 37 AE 8957 and the

accident occurred while he was driving the said tractor, which is owned

by opposite party No.1, in the capacity of its driver.

15. Ex.B-1 insurance policy shows that it was subsisting as on the

date of the accident. As per opposite party No.2, the risk of driver was

not covered by insurance company as no extra premium was paid.

Therefore, opposite party No.2 i.e., insurance company is not liable to

pay compensation. The Commissioner relied upon the judgment of this

Court, in the case of National Insurance Company Limited v.

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D.Sivasankar 1, wherein it is held that the insurance company is

statutorily liable to pay compensation in respect of driver, in view of

Proviso (i) (a) to Section 147 of the Motor Vehicle Act, 1988, and cannot

contend that no extra premium is paid to cover the liability of the

driver by the insured.

16. In this regard, it is apt to refer to the decision of this Court, in

the case of United India Assurance Company Limited v.

Shandoorapu Gangavva and another 2, wherein the Single Judge of

this Court, while dealing with the liability of insurance company, in

respect of death of a driver in case of the policy taken by the owner of

the vehicle as 'Act Liability' without payment of extra premium, has

dismissed the appeals filed by the insurance company by taking

similar view, which was observed in National Insurance Company

Limited v. Prembai Patel 3, and held that liability of insurance

company qua employees of the owner could not be unlimited, but it

would be limited to that arising under the Workmen's Compensation

Act, 1923. However, it is to be seen that the Hon'ble Supreme Court

in Prembai Patel's case (3rd cited supra), held that where the policy

mentions "a policy for Act Liability" or "Act Liability", the liability of the

2006 (4) ALD 398 2 Common judgment, dt. 09.03.2023, CMA (SR) Nos. 4208, 4214 and 4220 of 2006 3 AIR 2005 SC 2337

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insurance company qua the employees as aforesaid would not be

unlimited but would be limited to that arising under the Workmen's

Compensation Act, 1923.

17. In view of the above discussion and considering the principle laid

down by the above said authorities and as the deceased is an employee

rendering his services to the opposite party No.1 under employee-

employer relationship, the contention of the learned counsel for the

opposite party No.2 that the policy does not cover the risk of driver, in

view of non-payment of additional premium, is unsustainable.

Therefore, opposite party No.2 is liable to indemnify opposite party

No.1 i.e., owner of the vehicle.

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

a plea that the deceased was not having valid and effective driving

license at the time of the accident.

19. It is pertinent to state that except taking a mere plea, opposite

party No.2 has not adduced any cogent and convincing evidence by

examining any persons such as Road Transport Authority (RTA)

officials to prove that the deceased was not holding a valid driving

license. Furthermore, there is no evidence on record to show that the

deceased was charged under Section 181 of the Motor Vehicle Act,

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1988. Under these circumstances, this Court is of the considered

opinion that the Commissioner having discussed elaborately came to

the right conclusion and granted just and reasonable compensation to

the applicants. Hence, interference of this Court into the findings of

the Commissioner is unwarranted. The appeal is devoid of merits and

the same is liable to be dismissed.

20. In the result, the Civil Miscellaneous Appeal is dismissed

confirming the order dated 06.12.2010 in W.C.No.213 of 2007 on the

file of the Commissioner for Workmen's Compensation and Assistant

Commissioner of Labour-I, Hyderabad. There shall be no order as to

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

______________________________ JUSTICE M.G.PRIYADARSINI Date: 17.11.2023 GVR