Hdfc Ergo General Ins Co Ltd., ... vs M Mallesh, Hyderabad And 4 Others
2023 Latest Caselaw 3058 Tel

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

 CIVIL MISCELLANEOUS APPEAL Nos. 127 and 158 of 2016


COMMON JUDGMENT:

       These two appeals are being disposed of by this common

judgment since both the C.M.A's are filed by the Insurance

Companies challenging the quantum of compensation, are

directed against the very same order and decree, dated

14.12.2015

made in W.C.Case No. 67 of 2014 on the file of the

Commissioner for Employees' Compensation and Deputy

Commissioner of Labour-I, Hyderabad (for short "the

Commissioner").

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 that the applicants who are

children of Late Smt.Molla Laxmamma (hereinafter referred as

'the deceased) have filed an application under the provisions of

Employees' Compensation Act, 1923 (for short 'the Act')

claiming compensation of Rs.8,00,000/- for the death of the

deceased in the accident that occurred on 08.01.2014. It is

stated that on the fateful day, upon instructions of opposite

party Nos. 1 and 3, employers, the deceased was proceeding as

labourer on the tractor and trailer bearing Nos. AP 22M 9902 2 MGP,J CMA_127 & 158_2016

and AP 22M 2357 from Achampet to Thummanpet for loading

and unloading gravel which is used for roof top of house. When

the said tractor and trailer reached near Mahadevpur gate, the

driver of the said tractor and trailer drove the vehicle in a rash

and negligent manner at high speed and lost control over the

vehicle, due to which, the said tractor and trailer turned turtle.

As a result, the deceased sustained grievous injuries and died

on the spot. Based on the complaint, the Police, Balmoor Police

Station, registered a case in Crime No. 2 of 2014 under Section

304(A) and 337 of IPC. According to the applicants, the

deceased was aged about 28 years and used to earn wages of

Rs.8,000/- per month and batta of Rs.50/- per day as labourer

under the employment of opposite party Nos.1 and 3 and used

to contribute her entire earnings for the welfare of the family.

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

their only bread winner besides love and affection. Hence, the

applicants have filed the application claiming compensation of

Rs.8,00,000/- against the opposite party Nos.1 to 4, who are

jointly and severally liable to pay the compensation.

4. Before the Commissioner, the opposite party Nos. 1 and 3

remained ex parties and whereas, the opposite party Nos. 2

and 4, appellants herein, filed counter denying the averments

of the application such as employee-employer relationship, 3 MGP,J CMA_127 & 158_2016

salary, age of the applicant and manner of accident. He further

contended that unless and until it is proved that the applicant

sustained injuries during the course of her employment and the

driver of the said tractor and trailer was having valid and

effective driving licence, the opposite party Nos. 2 and 4,

Insurance Companies are not liable to pay the compensation. It

is lastly contended that claim is excessive and exorbitant and

prayed to dismiss the application.

5. On behalf of the applicants, AW. 1 was examined and

Exs.A.1 to A.10 were marked. Ex.A.1 is the certified copy of

FIR, Ex.A.2 is the certified copy of inquest report, Ex.A.3 is the

certified copy of post mortem examination report, Ex.A.4 is the

dcertified copy of charge sheet, Ex.A.5 is the copy of RC of the

tractor, Ex.A.6 is the copy of RC of the trailer, Ex.A.7 is the copy

of driving licence of the driver, Ex.A.8 is the copy of insurance

policy of tractor, Ex.A.9 is the copy of insurance policy of trailer

and Ex.A.10 is the copy of household card. On behalf of

opposite party Nos.2 and 4, RWs.1 and 2 were examined and

Exs.B.1 to B.4 were marked. Ex.B.1 is the true copy of

insurance policy issued in respect of tractor bearing No. AP 22M

9902 in favour of opposite party No. 1, Ex.B.2 is the copy of

insurance policy, Ex.B.3 is the proceedings of RTA,

Mahabubnagar, Ex.B.4 is the copy of registration certificate.

                                4                              MGP,J
                                                 CMA_127 & 158_2016

6. The Commissioner after considering the evidence on

record, both oral and documentary, by determining the wages of

deceased as Rs.6,602/- per month, by applying the factor

'213.57' for the age of applicant being 38 years, has awarded

compensation of Rs.6,28,490/-.

7. Aggrieved by the compensation awarded by the

Commissioner, the opposite party Nos. 2 and 4/Insurance

Companies have filed the present appeal to set aside the

impugned order.

8. Heard both sides and perused the record.

9. The main contention of learned Standing Counsel for the

opposite party Nos. 2 and 4/Insurance Companies is that

though the insurance policy under Exs.B.1 and B.2 is

subsisting as on the date of the accident, the policy does not

cover the risk of the deceased, as no additional premium was

paid by the opposite party Nos. 1 and 3 to cover the risk of the

deceased and prayed to dismiss the application against them.

10. On the other hand, learned counsel for the applicants

sought to sustain the impugned order of the Commissioner

contending that considering all aspects including the age and

avocation of the deceased, the Commissioner has awarded 5 MGP,J CMA_127 & 158_2016

reasonable compensation and the same needs no interference

by this Court.

11. In view of the rival contentions, this Court has perused

the entire record and found that the applicant No. 1 was

examined as AW. 1 and reiterated the averments of the

application in his chief examination. He deposed that his

deceased mother was working as labourer under the

employment of opposite party Nos. 1 and 3, employer and

succumbed to the grievous injuries during and in the course of

her employment with opposite party Nos. 1 and 3. Though

AW. 1 was cross examined at length, nothing adverse was

elicited to discredit his evidence.

12. The main contention of the learned Standing Counsel for

the Insurance Company is that though the insurance policy

under Exs.B.1 and B.2 is subsisting as on the date of the

accident, the policy does not cover the risk of the deceased as

no additional premium was paid by the opposite party Nos. 1

and 3 and thus, opposite party Nos. 2 and 4 are not entitled to

pay any compensation. In support of such contention, the

opposite party Nos. 2 and 4 filed Ex.B.1, copy of insurance

policy, which clearly discloses that the said tractor was insured

vide policy bearing No. 2316 2005 1851 4800 000 valid from 6 MGP,J CMA_127 & 158_2016

24.05.2013 to 23.05.2014 and premium of Rs.1,750/- was paid

towards basic third party risks. Ex.B.2, copy of insurance

policy, clearly discloses that the said trailer was insured vide

policy bearing No. 0511043113P101917709 valid from

25.06.2013 to 24.06.2014 and premium of Rs.1,023/- was paid

towards basic third party risks. On behalf of opposite party

No. 2, its senior manager, examined as RW. 1. RW. 1 in his

cross examination, he admitted that the on the date of accident,

the policy of the said tractor was in force. He also admitted that

the said tractor was attached to the said trailer as on the date of

accident and the opposite party No. 2 issued the package policy

for the said tractor. On behalf of opposite party No. 4, its

administrate officer, was examined as RW. 2. RW. 2 in his cross

examination, admitted that the opposite party No. 4 collected

the premium for the said trailer. He also admitted that the

policy was in force as on the date of accident. However, except

stating that the policy does not cover the risk of the deceased,

the opposite party Nos. 2 and 4 have not evinced any cogent

evidence to prove the same.

13. In Oriental Insurance Company Limited v. Meena

Variyal and others 1, the Honourable Supreme Court observed

as under:

1 (2007) 5 SCC 428
                                           7                                 MGP,J
                                                               CMA_127 & 158_2016

"Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of subsection (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act. 14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods."

14. In National Insurance Company Limited v. Prembai

Patel and others 2, the Honourable Supreme Court held as

under:

"15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in clauses (a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the policy should also contain a clause to that effect.

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

2 AIR 2005 SC 2337 8 MGP,J CMA_127 & 158_2016

company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act."

15. In view of the above discussion and considering the

principle laid down in the above said authorities and since the

deceased is not a gratuitous passenger and as the deceased is

an employee rendering her services to the opposite party Nos. 1

and 3 under employee-employer relationship, the contention of

the learned Standing Counsel for the opposite party Nos. 2 and

4 that the policy does not cover the risk of the deceased, in view

of non-payment of additional premium, is unsustainable.

Therefore, the opposite party Nos. 2 and 4 are liable to

indemnify the opposite party Nos. 1 and 3, employers i.e., owner

of the said tractor and owner of said trailer.

16. Though several grounds were raised by the learned

Standing Counsel for the appellants/insurance companies, it

appears that most of such grounds are based on question of fact

but not on question of law, more particularly, when the opposite

party Nos. 2 and 4 failed to establish that there are errors

apparent on the face of the record. The Honourable Supreme

Court in North East Karnataka Road Transport Corporation

v. Sujatha 3 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

(2019) 11 SCC 514 9 MGP,J CMA_127 & 158_2016

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 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."

17. In view of the principle laid down in the above said

authority, it is clear that the above contention of the

appellants/insurance companies 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.

                                10                              MGP,J
                                                  CMA_127 & 158_2016




18.   Under   these   circumstances,     this   Court   is   of   the

considered opinion that the Commissioner, after considering all

the aspects, has rightly came to the conclusion in awarding

compensation to the applicants. Thus, this Court is not

inclined to interfere with the findings of the Commissioner and

the Civil Miscellaneous Appeals are also liable to be dismissed.

19. Accordingly, both the Civil Miscellaneous Appeal are

dismissed. There shall be no order as to costs.

Pending Miscellaneous applications, if any, shall stand

closed.

______________________________ JUSTICE M.G.PRIYADARSINI Date: 11.10.2023 gms