Telangana High Court

Hdfc Ergo Genaral Insurance Company ... vs Mamidi Sandhya And 4 Others on 22 November, 2023

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

           Civil Miscellaneous Appeal No.939 OF 2019


JUDGMENT:

Aggrieved by the order passed by the Commissioner for

Employees' Compensation and Deputy Commissioner of Labour-I,

T.Anjaiah Karmika Samkshema Bhavanam, RTC Cross Roads,

Hyderabad in E.C. No.26 of 2016 dated 17.07.2019, the opposite

party No.2-HDFC ERGO General Insurance Company Limited has

filed the present appeal.

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

referred as per their array before the Commissioner.

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

The applicants who are the wife, daughter and parents of the

deceased-Mamidi Nageswara Rao (hereinafter will be referred as

'deceased') filed an application claiming compensation of Rs.20

lakhs on account of the death of the deceased who died in the

accident that occurred on 6.8.2015. According to the applicants,

the deceased workman was working as driver on tractor and trailer

bearing Nos. AP 20 TC 5282 and AP 20 TC 5281. While so, on

6.8.2015 at about 12-30 hours the deceased was on duty as a

driver on the tractor and trailer and proceeded in order to

MGP,J CMA_939_2019

transport soil from Kothur Buchaiah fields to Kamesh fields and

when he reached Chigurupati Venkateswarlu sugar cane fields, all

of a sudden, buffalos herd came across the road, then the deceased

in order to avoid accident applied sudden brakes and lost control

over the steering, as a result, the deceased fell on the road and the

left middle tyre of the tractor ran over the deceased, due to which,

his body was crushed. Immediately he was shifted to hospital and

while undergoing treatment, the deceased died on the same day

night at about 22-00 hours. Thus, the deceased died during the

course and out of his employment as a driver on the said tractor

and trailer under the opposite party No.1. The Police,

Nelakondapally P.S. had registered a case in crime No.127 of 2015

under Section 304-A of IPC. According to the applicants, the

deceased was being paid Rs.8,000/- per month towards his wages

apart from batha of Rs.150/- per day by the opposite party No.1.

Due to the sudden demise of the deceased, the applicants lost their

source of income. Hence the claim.

4. Opposite party No.1 filed counter admitting the ownership

of the tractor and trailer bearing No. AP 20 TC 5282 and 5281 and

contended that the said tractor was insured with the opposite

party No.2 and the policy was valid from 16.10.2014 to 15.10.2015

and also admitted the employment of the deceased and his wages.

MGP,J CMA_939_2019

However, he denied his liability and prayed to dismiss the claim

against him.

5. Opposite party No.2 filed counter denying the averments of

the application, manner of the accident, age, avocation, wages and

the relationship of employee-employer and further contended that

the deceased was not having valid driving license and therefore,

prayed to dismiss the application.

6. Based on the above pleadings, the learned Commissioner has

framed the following issues:

1. Whether the deceased was a workman within the meaning of the Act and died due to the injuries sustained in the accident that occurred on 6.8.2015 during the course and out of his employment as a driver under the employment of the 1st opposite party on the tractor and trailer bearing No. AP 20 TS 5282 and AP 20 TC 5281?

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

3. What is the amount of compensation entitled by the dependants of the deceased?

7. Before the Commissioner, the applicant No.1 was examined

as AW.1 apart from examining AW.2 and got marked Exs.A1 to

A12. On behalf of the opposite party No.1, RW.1 was examined

MGP,J CMA_939_2019

and Exs.B2 to B6 were marked. On behalf of opposite party No.2,

RW.2 was examined and Exs.B1 and B7 were marked.

8. The learned Commissioner after evaluating the oral and

documentary evidence available on record, has awarded the

compensation of Rs.7,10,532/-. Aggrieved by the same, the

Insurance Company has preferred the present appeal.

9. Heard Sri M.Satish Reddy, learned Standing Counsel for the

appellant-Insurance Company and Sri Repakula Nageswara Rao,

learned counsel for the applicants and perused the record.

10. The main contention of the learned Standing Counsel for the

appellant-Insurance Company is that though there is no employee-

employer relationship between the opposite party No.1 and the

deceased, and even as per the F.I.R., at the time of accident the

deceased was not driving the vehicle, in fact, he was sitting on the

mud guard of the tractor and another person by name

Pagidikanthula Prasad was driving the vehicle. Hence prayed to

allow the appeal by setting aside the Order passed by the learned

Commissioner.

11. Per contra, the learned counsel for the applicants argued

that after considering all the aspects, the learned Commissioner

has rightly awarded the compensation to the applicants and as

MGP,J CMA_939_2019

such, interference of this Court is unwarranted. Hence prayed to

dismiss the appeal.

12. Now the point for consideration is whether the order passed

by the learned Commissioner is sustainable under law?

13. This Court has perused the entire evidence and the

documents filed by both the parties. AW.1 who is the wife of the

deceased has reiterated the averments of the application. The

complainant is the father of the deceased. However, based on the

information he has given report to the police. Admittedly, he is not

an eyewitness to the accident and as such the applicants got

examined AW.2. AW.2 in his evidence categorically narrated the

manner of accident and further stated in his cross-examination

that his name is reflected in the final report. He denied the

suggestion that he is not an eyewitness to the accident and that

the deceased was not driving the vehicle at the time of incident and

also denied that he is deposing false in order to help the

applicants.

14. The opposite party No.1 was examined as RW.1 and he has

reiterated the averments of his counter. In the cross-examination

he stated that the deceased was tractor driver and he was working

for him and the deceased was being paid Rs.8,000/- per month

MGP,J CMA_939_2019

towards wages and Rs.150/- per day as batha and at the time of

accident, the deceased was driving the tractor. He denied the

suggestion that the deceased is not working as driver nor paid any

amount and Insurance Company is not liable to pay the

compensation. He further denied the suggestion that at the time of

accident the deceased was not driving the tractor and one Prasad

was driving the tractor and the deceased was sitting on the mud

guard at the time of accident and that the driver was not having

valid driving license and the deceased was travelling as a

passenger. RW.1 has filed Ex.B2 certified copy of 161 Cr.P.C.

statement recorded by the Police, Nelakondapally P.S., Ex.B3 copy

of registration certificate, Ex.B4 original insurance policy, Ex.B5

xerox copy of permit and Ex.B6 xerox copy of fitness certificate of

the tractor.

15. On behalf of the opposite party No.2, RW.2 was examined

and he stated that the complaint given by the applicant No.1, who

is father of the deceased alleging that one Pagidikathula Prasad

was driving the tractor and trailer and the deceased was sitting on

the left side mud guard and therefore, opposite party No.2 is not

liable to pay compensation. Ex.B1 xerox copy of F.I.R. and Ex.B7

true copy of insurance policy issued in respect of tractor and trailer

of opposite party No.1. He accepted that the policy was in force as

MGP,J CMA_939_2019

on the date of accident and they have appointed an Investigator to

ascertain the truth of the accident. However, admitted that he has

not filed the investigator's report. He denied the suggestion that

the deceased was driving the vehicle and that the deceased was

having valid driving license at the time of accident and there was

employee and employer relationship between the opposite party

No.1 and the deceased and that the deceased died during the

course of employment.

16. It is pertinent to state that the report given by the father of

the deceased is only based on the information given by the persons

who stated about the accident. A perusal of the report also

discloses that the complainant i.e. father of the deceased is an

illiterate, as such, he has affixed his thumb impression and there

is no evidence to show that the persons who have given report are

aware about the name of the driver of the tractor. Even assuming

for a moment, if Pagidikathula Prasad is driving the vehicle,

definitely he would have also sustained injuries in the accident. As

per the record, there is no such evidence to show that

Pagidikathula Prasad has sustained injuries. Further the final

report also discloses based on the evidence of five witnesses i.e.,

LWs.4 to 7 that Pagidikathula Prasad is not present at the scene of

offence and he is busy with his work at LW.13 paddy field and

MGP,J CMA_939_2019

cultivating by another tractor by LW.1. Therefore, it is clear that

Pagidikathula Prasad is not driving the tractor at the time of

accident. Under these circumstances, this Court is of the

considered opinion that at the time of accident, the deceased was

driving the vehicle and in the accident the deceased sustained

injuries and succumbed to the same. Therefore, the contention of

the learned Standing Counsel for the Insurance Company that at

the time of accident, the deceased was not driving the vehicle and

sitting on the mud guard and Pagidikathula Prasad is driving the

vehicle is unsustainable.

17. Whether there is employer-employee relationship between

the applicant and opposite party No.1 is a question of fact and not

a question of law. The Honourable Supreme Court in North East

Karnataka Road Transport Corporation v. Sujatha 1 held as

under:

"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an

1 (2019) 11 SCC 514

MGP,J CMA_939_2019

accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.

10. The aforementioned questions are essentially the questions of fact and therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.

11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.

12. In other words, the appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner is not like a regular first appeal akin to Section 96 of the Code of Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."

18. In view of the principle laid down in the above said authority,

it is clear that the above contention of the appellant - Insurance

Company is not based on a question of law but it is purely a

question of fact, which cannot be raised before this Court as per

Section 30 of the Workmen's Compensation Act.

MGP,J CMA_939_2019

19. Now coming to the compensation, according to the

applicants, the deceased was aged 32 years and the deceased was

getting salary of Rs.8,000/- per month. However, as the applicants

failed to produce any valid evidence, the learned Commissioner has

taken the income of the deceased according to the minimum wages

fixed by the erstwhile Government of Andhra Pradesh vide