United India Insurance Co. Ltd., vs Kum. Golusula Umarani And 2 Others
2023 Latest Caselaw 3445 Tel

      THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

         Civil Miscellaneous Appeal No.412 OF 2011

JUDGMENT:

Aggrieved by the order dated 25.11.2010 in W.C.No.105 of

2008 passed by the learned Commissioner for Workmen's

Compensation and Assistant Commissioner of Labour-IV,

T.Anjaiah Karmika Samkshema Bhavan, RTC X roads,

Hyderabad, the opposite part No.2 - United India Insurance

Company Limited has filed the present appeal to set aside the

impugned order.

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

be referred as per their array before the learned Commissioner.

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

The applicants have filed an application under the

provisions of the Workmen's Compensation Act, 1923 (now

amended as Employees' Compensation Act, 1923) claiming

compensation of Rs.4,00,000/- on account of the death of the

deceased-G.Mallamma, who worked as labourer under the

employment of opposite party No.1 on the on tipper bearing No.

APO 5708 on payment of Rs.150/- per day. On 27.6.2008 she

was engaged as labourer for loading and unloading purpose and

after unloading rock pieces in the said tipper and as per the 2 MGP,J CMA_412_2011

instructions of her employer, she along with other labourers,

was proceeding on the said tipper from Kokapetgutta to Narsingi

village and at about 5-00 p.m., when the tipper reached

Sabithanagar bus stop, the tipper was turned turtle due to the

rash and negligent driving of the driver. As a result, the

deceased and her son sustained severe injuries and died on the

spot and immediately she was shifted to Osmania General

Hospital, Hyderabad, where autopsy was conducted over the

body of the deceased. Thus, the deceased died during the

course and out of her employment with the opposite party No.1.

Based on the complaint, the Police, Narsingi P.S. registered a

case in crime No.176 of 2008. Thus the opposite party Nos.1

and 2, who are owner and insurer of the tipper bearing No. APO

5708 are jointly and severally liable to pay compensation.

Hence the claim.

4. Opposite party No.1, owner of the tipper received notice,

engaged Mr.G.Sudhakar Reddy, Advocate, who filed vakalath

but did not file any counter. Opposite party No.2 - Insurance

Company filed counter denying the employment of the deceased

as a labourer on tipper under the employment of opposite party

No.1, manner of accident, age and wages of the deceased and

also denied the coverage of risk of the deceased under the 3 MGP,J CMA_412_2011

policy. It is further contended that as per the police records, the

deceased was travelling as a gratuitous passenger in the vehicle

for purchasing household articles at Narsingi village, and as

such, opposite party No.2 is not liable to pay compensation to

the applicants. The compensation claimed by the applicants is

excessive and exorbitant. Hence prayed to dismiss the

application.

5. Before the learned Commissioner, on behalf of the

applicants, AW.1 was examined and got marked Exs.A1 to A5.

On behalf of opposite party No.1 none were examined and no

document was marked. On behalf of opposite party No.2, RW.1

was examined and Exs.B1 to B3 were marked.

6. The learned Commissioner after considering the evidence

on record, both oral and documentary, has awarded

Rs.3,06,133/- towards compensation, Rs.52,106/- towards

interest, Rs.612/- towards stamp fee and Rs.500/- towards

Advocate fee. Thus in all the learned Commissioner has

awarded the compensation of Rs.3,59,351/-.

7. Aggrieved by the compensation awarded by the

Commissioner, the opposite party No.2 - Insurance Company

has filed the present appeal to set aside the impugned order.

                                  4                           MGP,J
                                                      CMA_412_2011

8. Heard Sri A.V.K.S. Prasad, learned Standing Counsel for

the appellant-Insurance Company and Sri T.Viswarupa Chary,

learned counsel for the applicants and perused the record

available before this Court.

9. The main contention of the learned Standing Counsel for

the opposite party No.2-Insurance Company is that though the

labourer on the lorry of the insured were not covered under

Ex.B1, as the insured had not paid the required premium to the

Insurance Company, the learned Commissioner instead of

absolving the liability of the insurer of the lorry, has erroneously

fixed the liability on the appellant-Insurance Company. Hence,

prayed to allow the appeal and to set aside the order passed by

the learned Commissioner.

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

contended that the learned Commissioner after considering all

the material aspects has rightly awarded the compensation and

thus, interference of this Court in the impugned order is

unwarranted.

11. In view of rival contentions made by both the parties, this

Court has perused the entire material available on record. The

applicant No.2 who is mother of the deceased was examined 5 MGP,J CMA_412_2011

AW.1 and reiterated the petition averments. On the other hand,

RW.1 who is the Senior Assistant of appellant-Insurance

Company was examined and he stated that as per the statement

of Smt.Chowdamma (LW.8) recorded by the Investigation officer,

she stated that the deceased is eking out her livelihood by stone

cutting work at Sabithangargutta and that on 27.6.2008 she

boarded the tipper bearing No. APO 5708 for purchasing

essential commodities at Narsingi village and that she sat beside

the driver of the tipper and on the way, due to the rash and

negligent driving of the driver of tipper, the tipper met with the

accident and the deceased and her child died due to the injuries

sustained in the accident and that the labourers Mallappa and

Husainappa also died while the driver sustained injuries and as

such, there was no employee-employer relationship between the

deceased and opposite party No.1. However, as per Ex.A3 final

result, the accused driver of tipper by name Balakrishna along

with tipper labourers G.Mallamma i.e., the deceased herein, her

son Ramu who is 5 months old, Mallappa, Hussainappa and

Chowdamma were travelling in the said tipper at the time of

accident and it was clearly mentioned as tipper labour employed

on tipper. Further summons were issued twice to the

Investigating Officer were not served and opposite party No.2

has not taken steps to bring him to the witness box to prove the 6 MGP,J CMA_412_2011

contents of Ex.B2. Therefore, Ex.B2 remained unproved.

Therefore, the learned Commissioner considering the evidence

of AW.1, coupled with Ex.A1 to A4 rightly held that the

deceased G.Mallamma was a labourer employed on the tipper

bearing No. APO 5708 of opposite party No.1 and on 27.6.2008

while the deceased along with other labourers was travelling on

the said tipper, met with accident when the tipper fell in a ditch

due to the rash and negligent driving of its driver and that the

deceased died due to head injury sustained in the said accident

and in the said accident, minor son of the deceased also died.

12. Further the learned Standing Counsel for the appellant-

Insurance Company contended that the labourer on the tipper

of the insured were not covered under Ex.B1, as the insured

had not paid the required premium to the Insurance Company.

In the cross-examination RW.1 stated that Rs.50/- was paid in

addition to basic premium of Rs.6,090/-. However, he denied

that the basic premium paid covers one driver, one cleaner and

six labourers. As seen from Ex.B1 insurance policy, it was

issued subject to endorsement of IMT 39. It covers legal liability

to persons employed in connection with the operation and/or

maintenance and/or loading and/or unloading of motor vehicles

for goods vehicle. Therefore, the risk of labourers working on 7 MGP,J CMA_412_2011

the insured vehicle, are also covered. Hence, this Court is of the

considered opinion that the contention of the learned Standing

Counsel for the appellant-Insurance Company that the deceased

being the labourer on the tipper of the insured were not covered

under Ex.B1, is unsustainable. Thus, this Court is of the

considered opinion that the opposite party Nos.1 and 2 are

jointly and severally liable to pay compensation to the

applicants.

13. Now coming to the quantum of compensation, according

to the applicants, the deceased was aged 35 years as on the

date of accident and was paid Rs.4,500/- per month. However,

as there is no documentary evidence on record to prove the

income of the deceased, considering the occupation of the

deceased as labourer, the learned Commissioner has taken the

income of the deceased at Rs.3,107/- per month as per the

G.O.Ms.No.83 of L.E.T & F (Lab-II) Department dated

22.11.2006. Considering the age of the applicant as 35 years,

the learned Commissioner applied relevant factor of '197.06'

and awarded compensation of Rs.3,06,133/-. The learned

Commissioner further awarded an amount of Rs.612/- towards

stamp fee, Rs.500/- towards Advocate fee and Rs.52,106/-

towards interest and in total an amount of Rs.3,59,351/-, which 8 MGP,J CMA_412_2011

is just and reasonable. Under these circumstances, this Court

is of the considered opinion that the learned Commissioner after

considering all the aspects has awarded reasonable

compensation. In view of the above facts and circumstances,

this Court is of the considered opinion that there are no

grounds to interfere with the findings of the learned

Commissioner and the Civil Miscellaneous Appeal is devoid of

merits and it is liable to be dismissed.

14. Accordingly, the Civil Miscellaneous Appeal is dismissed.

There shall be no order as to costs.

Pending Miscellaneous applications, if any, shall stand

closed.

______________________________ JUSTICE M.G.PRIYADARSINI

31.10.2023 Pgp