Telangana High Court

K Pochaiah, Hyderabad And 5 Others vs A Praveen, R.R.Dist And 1 Other on 18 November, 2023

Bench: M.G.Priyadarsini

      THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

         CIVIL MISCELLANEOUS APPEAL No.155 of 2016

JUDGMENT:

1. The present Civil Miscellaneous Appeal has been directed

against the order dated 06.01.2016 in E.C.No.51 of 2012 on the file of

the Commissioner for Employees' Compensation and Assistant

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

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

appellants herein seeking compensation for death of one Sri Konne

Mahender (hereinafter referred to as 'deceased') in an accident that

occurred on 30.05.2012 and the same was dismissed. Aggrieved by

the same, the present Civil Miscellaneous Appeal is filed at the

instance of the applicants before the Commissioner.

2. The appellants herein are applicants and respondent Nos.1 and

2 herein are opposite party Nos.1 and 2 respectively 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 applicants are that the deceased

was son of applicant Nos.1 and 2 and brother of applicant Nos.3 to 6.

The deceased was working as driver of car bearing No.AP 29 TV 5517

under the employment of opposite party No.1. On 30.05.2012, the

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villagers of the deceased engaged car from opposite party No.1 to drop

them at Alair and accordingly, opposite party No.1 directed the

deceased to drop them. The deceased was driving the said car and at

about 01:30 AM, when they reached to Nagaram Bus Stop, the

deceased hit the car to a parked lorry bearing No.AP 09 U 6095 from

backside and accident occurred. According to the applicants, the said

accident was caused due to the wrong parking of the lorry on the left

side of the black top road in the midnight without any parking rear

lights, without any guarding indications and without any persons near

the lorry. In the said accident, the deceased as well as two other in-

mates of the car died on the spot due to the injuries sustained by

them.

4. According to the applicants, the deceased was aged about 22

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

Rs.8,000/- per month towards wages along with batha at Rs.100/- per

day by opposite party No.1. Opposite party No.1 did not pay any

compensation for death of the deceased, in spite of several requests

and he did not provide necessary documents to file the present case.

The car bearing No.AP 29 TV 5517, which was involved in the accident

was insured with opposite party No.2 with a policy valid from

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26.11.2011 to 25.11.2012. Hence, the applicants filed the present

claim petition seeking compensation of Rs.7,50,000/- along with

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

realization and Rs.2,000/- towards funeral expenses.

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

parte. Opposite party No.2 filed its counter contending that there was

no employee and employer relationship between the deceased and

opposite party No.1. The occurrence of accident, age, wages and death

of the deceased were denied. They also denied that the accident

occurred during the course and out of employment of deceased with

opposite party No.1. The deceased was not holding valid driving

license at the time of the accident.

6. It is the further case of opposite party No.2 that applicant No.3

herein, who is brother of the deceased in his complaint to police with

regard to accident, stated that the car involved in the accident was

owned by him and the deceased used to drive the same, at times. The

deceased along with his friends was going to Alair to shift one of his

relative to hospital, who was sick and the accident occurred at that

time. The deceased was not able to control the vehicle and dashed to

a standing lorry resulting in the accident and death of deceased and

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other in-mates of the car. The said facts are supported by the

statements of applicant Nos.1 and 3, who are father and brother of the

deceased, given to the police. All these circumstances prove that on

the date of accident, the deceased used the car for his personal use

and that there was no employee and employer relationship between

him and opposite party No.1. Accordingly, prayed to dismiss the claim

petition.

7. Subsequently, opposite party No.2 filed its additional counter

after conclusion of the evidence of the applicants stating that the

deceased was not holding permanent driving license and he was

holding a learner's license only. Hence, there is no question of his

employment under opposite party No.1 as driver for driving the

transport vehicle. It is further stated that as per the police records

and other material, the deceased was student and the vehicle was

owned by applicant No.3. Therefore, the deceased does not come

under the Employee's Compensation Act, 1923 and the present claim

petition is not maintainable.

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

got marked Exs.A-1 to A-5. Opposite party No.1 was set ex parte.

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Opposite party No.2 got examined R.Ws.1 and 2 and got marked

Ex.B-1 and Ex.X-1 was also marked by the Commissioner.

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

the following issues for consideration:

"1.Whether the deceased was an employee within the meaning of the Act and died due to the injuries sustained in the accident on 30.5.2012 during the course and out of his employment as a driver on the car bearing No.AP 29 TV 5517 under the employment of O.P.1?

2. Who are liable to pay compensation to the applicants? and;

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

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

Commissioner held that the applicants have failed to prove their case

and consequently, their case was dismissed.

11. Heard, both sides.

12. Learned counsel for the appellants has contended that the

applicants have clearly established their case before the

Commissioner. The deceased was employed as driver with opposite

party No.1 and during the course and out of his employment, the

deceased died in the accident. The vehicle involved in the accident

was having valid insurance policy issued by opposite party No.2.

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Hence, both the opposite parties are liable to pay compensation as

prayed for by them. Further, though, the deceased was holding

learner's license, he was competent to get driving license and as such,

they are entitled for compensation.

13. Learned counsel for opposite party No.2 contended the employee

and employer relationship is not established and the occupation of the

deceased is shown as student, but not driver, in the police records.

The applicants have also not filed any evidence to prove the employee

and employer relationship. Further, the vehicle involved in the

accident is transport vehicle and the deceased holding learner's

license cannot drive the said vehicle. He also contended that

applicant Nos.1 and 3 have clearly admitted in their complaint and

statements before the police that the vehicle is owned by them and the

same was used on the date of accident for personal use. Therefore, it

cannot be said the deceased was paid driver of the said vehicle. In

view of all these, he contended that the appeal is devoid of merits and

the same is liable to be dismissed.

14. Now the point for determination is as follows:

"Whether the findings of the Commissioner dismissing the claim of the applicants suffer from any illegality?"

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Point:-

15. This Court has perused the pleadings and material placed on

record. Admittedly, it is not disputed that on 30.05.2012, the

deceased was driving vehicle bearing No.AP 29 TV 5517 and was

travelling to Alair. While so, at about 01:30 AM, when they reached

Nagaram Bus Stop, the vehicle hit a lorry bearing No.AP 09 U 6095,

which was parked on the left side of the road without any indications.

As a result, accident occurred and the deceased died on the spot. It is

also not disputed that the vehicle involved in the accident was having

valid insurance policy and the same was in force as on the date of the

accident. It is also not disputed that the age of the deceased was 22

years at the time of the accident.

16. In the present case, the dispute is with regard to employee and

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

occupation, the ownership of the vehicle involved in the accident,

validity of driving license of the deceased and monthly wages earned

by him.

17. The evidence of A.W.1, who is the father of the deceased, shows

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

the accident by opposite party No.1. He also deposed that the

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deceased discontinued his studies, as he was interested in driving. He

was being paid an amount of Rs.8,000/- per month towards wages by

opposite party No.1 along with Rs.100/- batha per day. While so, the

villagers of the deceased engaged the vehicle of opposite party No.1 to

visit Alair village and opposite party No.1 directed the deceased to drop

them. Accordingly, on 30.05.2012, the deceased was going to Alair to

drop the said persons and at Nagaram Bus Stop, he met with accident

and died on the spot. In support of their case, the applicants got

marked Exs.A-1 to A-5. Ex.A-1 is the First Information Report. Ex.A-

2 is inquest report and Ex.A-3 is final result. All the three documents

support the occurrence of the accident, involvement of the vehicle and

death of the deceased in the accident.

18. In support of its case, opposite party No.2 got examined R.W.1,

its Administrative Officer and got marked Ex.B-1 i.e., original

insurance policy. It also examined R.W.2, who is Senior Assistant,

Office of the DTC, SRTA, Nalgonda. R.W.1 deposed that opposite party

No.1 obtained insurance policy under Ex.B-1 bearing

No.050302/31/11/02/00013138 valid for the period from 26.11.2011

to 25.11.2012 for his vehicle bearing No. AP 29 TV 5517. Except, the

said document and mere contentions that the deceased was not

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employed with opposite party No.1, opposite party No.2 had neither

examined any witness nor adduced any documentary evidence to

prove the same.

19. In the present case, opposite party No.1 remained ex parte and

opposite party No.2, who is disputing the employee and employer

relationship has not made any efforts to examine him, in support of its

case. The right person to speak with regard to employee and employer

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

party No.1 himself, but he remained ex parte. When, no evidence is

available on record, merely based on the averments made by opposite

party No.2, it cannot be said that the deceased was not employed with

opposite party No.1.

20. Coming to the contention that the deceased was student, the

evidence of A.W.1 clearly shows that the deceased was student and as

he was interested in driving, he discontinued his studies. Opposite

party No.2, which is disputing the same has not placed any evidence

on record to prove that the deceased was student and that he was not

working as driver of the vehicle involved in the accident. When two

views are possible, the view that is beneficial to the applicants has to

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be taken, since the Employee's Compensation Act, 1923 is a beneficial

legislation meant to protect the interest of employees and workers.

21. In the said circumstances, this Court is of the considered

opinion that it is the duty of opposite party No.2 to disprove the case

set up by applicants, but the same is not done. Hence, in the absence

of any contrary evidence, this Court is inclined to come to the

conclusion that the deceased was employed with opposite party No.1

as driver of the vehicle involved in the accident. Hence, the said

findings of the Commissioner suffer from perversity.

22. Coming to the ownership of the vehicle, opposite party No.2

except relying upon the statements of applicant No.3 given before the

police and averments of his complaint before police, has not placed

any evidence on record to prove that the vehicle was owned by the

applicants and the same used for personal use of the deceased on the

date of the accident. Opposite party No.2, who got examined R.W.2,

who is Senior Assistant, Office of the DTC, SRTA, Nalgonda, to prove

that the deceased was holding learner's license has not examined any

witness to prove that the vehicle was owned by applicants and not by

opposite party No.1. Hence, as there is no contra evidence, except,

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pleadings, this Court is of the considered opinion that the vehicle was

owned by opposite party No.1 and not by applicants.

23. The next contention of the learned counsel for opposite party

No.2 is that the vehicle involved in the accident is transport vehicle

used for commercial use and to drive the said vehicle the driver should

hold a valid driving license, but the deceased was having learner's

license only. Hence, the opposite party No.2 is not liable to be pay any

compensation, more particularly in view of the violation of policy

conditions.

24. In support of its contention, opposite party got examined R.W.2,

who is Senior Assistant, Office of DTC, SRTA, Nalgonda. His evidence

shows that the deceased was holding valid learner's license. In cross-

examination, he admitted that there is no technical difference in

driving of both transport and non-transport vehicle. It is pertinent to

state that, even for the sake of arguments if we accept the contention

of the learned counsel for opposite party No.2 as true, mere absence,

fake or invalid driving license or disqualification of the driver for

driving at the relevant time, are not in themselves defences available

to the insurer against either the insured or the third parties.

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25. The High Court for the erstwhile State of Andhra Pradesh in the

case of United India Insurance Company Limited v. Sri Mohd.

Khaleel Khan and others 1, held as under:

"9. The provisions of Workmen's Compensation Act no where prescribe that if a driver is employed he should possess valid licence as is required in terms of the mandate of Motor Vehicles Act 1939. This view is fortified by the judgment of Hon'ble High court of Karnatka titled Oriental Insurance Co. Ltd. v. Hazira Begum and others reported in MANU/KA/0384/1994, it is profitable to reproduce the para 9 of the judgment herein:

"9. A scan of various decisions of the High court will disclose that where a workman was engaged in the employer's business and who was doing the very thing he was employed to do, then the mere fact that he was not acting strictly by the letter of law will not make the accident any the less 'arising out of and in the course of employment.' It follows, therefore, the owner and insurance company are both liable in such an event.""

26. It is pertinent to note that the claim of the applicants is filed

under the provisions of the Employee's Compensation Act, 1923,

which do not mandate that if a driver is employed, he should possess

valid license as is required in terms of the mandate of the Motor

Vehicles Act, 1939. However, in the case on hand, the deceased was

having learner's license. Moreover, the policy conditions regarding

driver not holding valid and effective driving license at the time of

accident cannot be considered as fundamental breach that had

CMA No.872 of 2005 decided on 14.10.2015

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contributed to the cause of the accident to discharge the appellant

from the liability.

27. As per the decision of the Apex Court in the case of National

Insurance Company Ltd. v. Swaran Singh 2, the insurer had to

indemnify the compensation amount payable to the third party and

the insurance company may recover the same from the insured. In

the said decision, the Apex Court considered the doctrine of "pay and

recover" and examined the liability of the insurance company in cases

of breach of policy condition due to disqualifications of the driver or

invalid driving license of the driver and held that in case of third party

risks, the insurer has to indemnify the compensation amount to the

third party and the insurance company may recover the same from the

insured.

28. In view of the above, this Court is of the considered view that the

applicants are entitled for compensation for death of the deceased in

accident on 30.05.2012 and opposite party No.2 is liable to pay the

same and after payment is entitled to recover the same from opposite

party No.1.

(2004) 3 SCC 297

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29. In order to determine the compensation, the age and wages of

the deceased have to be determined. According to applicants, the

deceased was paid an amount of Rs.8,000/- per month towards wages

for working as driver under opposite party No.1 along with batha of

Rs.100/- per day. Except, oral evidence, no documentary evidence is

filed by the applicants to prove the same. Further, opposite party No.2

also did not adduce any evidence except denying the same. In the

said circumstances, this Court is of the considered view that the

minimum wages as per G.O.Ms.No.90 dated 28.09.2007 shall be taken

for determining the compensation for death of the deceased. As per

the said G.O., the minimum wages of driver is Rs.7,334/- per month.

The same is considered for determining the compensation. Further,

the age of the deceased was 22 years at the time of accident and the

same is not disputed. The relevant factor for persons with 22 years of

age is 221.37 as per the Workmen's Compensation Act, 1923. Thus

the compensation works out as mentioned below:

Rs.7,334/- X 50/100 X 221.37 = Rs.8,11,764/-.

Thus, the applicants are entitled for Rs.8,11,764/-.

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30. Insofar as rate of interest is concerned, it is apt to refer to the

decision of the Hon'ble Supreme Court in P. Meenaraj v. P.

Adigurusamy 3, wherein it was held as under:

"10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo (supra), this Court has not laid down the law that the interest would be payable only 30 days after the accident. In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident."

31. In view of the principle laid down in the above said citation, it is

evident that the applicants are entitled for interest at 12% per annum

on the compensation amount from the date of accident till date of

deposit. Hence, this Court is inclined to award interest at 12% per

annum on the compensation amount from the date of accident till the

date of deposit.

32. Accordingly, the Civil Miscellaneous Appeal is allowed by

awarding compensation of Rs. 8,11,764/- with interest at 12% per

annum from the date of accident till the date of deposit. However,

3 Civil Appeal No 209 of 2022, decided on 6 January 2022

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following the doctrine 'pay and recover', opposite party No.2-insurance