Telangana High Court

United India Insurance Co Ltd vs Afroz Khan And 4 Others on 3 April, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

       CIVIL MISCELLANEOUS APPEAL No.348 of 2013

JUDGMENT:

Aggrieved by the order dated 08.02.2013 passed by the

learned Commissioner for Employees' Compensation-cum-

Assistant Commissioner of Labour IV, Hyderabad (hereinafter

be referred as 'the Commissioner'), in W.C.No.103 of 2011, the

opposite party No.2/Insurance Company has filed the present

Civil Miscellaneous Appeal.

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

referred as they were arrayed before the learned Commissioner.

3. The brief facts of the case are that the applicants, who

are wife and children of the Sri Zaheer Ahmed (hereinafter be

referred as the deceased) filed claim petition under the

provisions of Employees Compensation Act, 1923, seeking

compensation of Rs.8,00,000/- along with interest for the death

of the deceased, who died in an accident that occurred on

01.04.2011 during the course and out of his employment with

opposite party No.1. As stated by the applicants, on 01.04.2011,

when the deceased was on duty as a driver on lorry bearing

No.AP-23V 1458 and as per instructions of opposite party No.1, MGP,J 2 CMA_348_2013

while he was proceeding on the said lorry to Bollaram Coco Cola

Company with loads of empty coca-cola bottles and on the way

when he reached Bachupally, another lorry bearing No. MP-

20HB 1307 came at high speed and in a rash and negligent

manner, dashed the lorry of the deceased. As a result, the

deceased sustained grievous injuries and that he was shifted

through ambulance to Gandhi Hospital, wherein the deceased

while undergoing treatment succumbed to the injuries. Based

on a complaint, Police officials of Dundigal Police Station

registered a case in crime No. 165 of 2011 for the offence under

Section 304-A of Indian Penal Code and submitted the charge

sheet. The applicants further stated that the deceased was aged

about 40 years and was being paid wages of Rs.6,000/- per

month by opposite party No.1. It is further stated by the

applicants that opposite party No.1 has insured his lorry

bearing No. AP-23V 1458 with opposite party No.2 and the said

policy was subsisting as on the date of accident. Therefore, the

applicants claimed compensation of Rs.8,00,000/- along with

interest from opposite party Nos.1 & 2 jointly and severally.

4. In spite of notice the Opposite party No.1, did not choose

to appear before the learned Commissioner and contest the

matter, therefore, the opposite party No.1 was sex ex-parte.

MGP,J 3 CMA_348_2013

5. Opposite party No.2 filed counter and denied the

averments of the claim petition including, age, wages, manner of

accident, employment, injuries sustained by the applicant,

denied the issuance of an insurance policy in respect of the

alleged lorry and also denied that the applicant was having valid

and effective driving license to drive the lorry and denied that

the alleged lorry was having a valid permit and fitness as on the

date of accident. On these grounds insurance company

contended that they are not liable to pay any compensation and

prayed to dismiss the same.

6. Based on the above pleadings, the learned

Commissioner, after framing issues, had conducted trial. The

applicant No.1 was examined as AW1, wherein she reiterated

the averments made in the claim application and stated that all

of the applicants are totally dependent on the earnings of her

deceased husband and hence, filed claim application seeking

compensation of Rs.8,00,000/- along with interest and got

marked Exs.A1 to A9 on her behalf. On behalf of opposite party

No.1, none were examined and no documents were marked. On

behalf of opposite party No.2, RW1, who has been working as

Senior Assistant in Regional Transport Authority, Nizamabad

was examined and Exs. B1 to B5 were marked on its behalf.

MGP,J 4 CMA_348_2013

7. After considering the evidence and documents available

on record, the learned Commissioner had awarded an total

amount of Rs.6,26,201/- along with interest @ 12% per annum.

Aggrieved by the same, the present appeal is filed by opposite

party No.2/Insurance Company to set aside the impugned

order.

8. Heard the submission of the learned Standing Counsel

for Insurance Company and the learned counsel for respondents

and perused the record.

9. Now the point for consideration is whether there are any

grounds to set aside the order passed by the learned

Commissioner?

10. Point: The main contention of the learned Standing

Counsel for the Insurance Company is that though the age of

the deceased employee is 59 years as per his own driving

license, the learned Commissioner considered the age of the

deceased employee as 40 years by relying upon PME report. Per

contra, the learned counsel for the respondents/applicants

contended that the learned Commissioner has rightly

considered all the aspects in a proper perspective and there is

no need to interfere with the findings of the learned MGP,J 5 CMA_348_2013

Commissioner. This Court has perused the evidence and

documents filed by both sides. The applicant No.1, wife of the

deceased was examined as AW-1, who has reiterated the

contents of the claim application and deposed about the manner

of the accident. She also relied upon the documents under Ex.

A-1 to A-9. A perusal of A-1 First Information Report shows that

Police Dundigal Police Station registered a case in crime No.165

of 2011 for the offence under Section 304-A IPC, took up the

investigation and laid Ex. A-2 Charge Sheet. Ex. A-3 certified

copy of crime details form and Ex.A-4 certified copy of inquest

report shows that the deceased was working under the

employment of opposite party No.1. Further, Ex.A-5 post-

mortem examination report shows that deceased died due to

injuries sustained in the accident. Ex. A-6 Motor Vehicle

Inspector Report shows that accident has not occurred due to

mechanical defects. Ex. A-7 and Ex. B-2 copies of insurance

policy filed by both sides shows that there is valid policy

subsisting as on the date of accident. Ex. A-8 and Ex. A-9 are

Registration Certificate and permit of lorry, clearly establish that

opposite party No.1 is the owner of the lorry. Therefore, there

is no dispute regarding the manner of the accident, death of the

deceased in the said accident and that the deceased was

working under opposite party No.1. The learned Commissioner MGP,J 6 CMA_348_2013

came to the conclusion that the applicants have categorically

established the employer-employee relationship.

11. The only dispute is regarding the age of the deceased. As

per the applicant the deceased was aged 40 years, but no age

proof is filed. As per the driving license extract, the age of the

deceased was 58 years. However, the learned Commissioner has

taken the age of the deceased as 40 years based on Ex.A-5

Postmortem report. It is pertinent to state that when the driving

license extract was filed by the applicants and the same was not

denied by the applicants, then the age mentioned in the driving

license extract ought to have been considered by the learned

Commissioner. The learned counsel for the applicants

vehemently argued that the age mentioned in the driving license

is not correct and the age of the deceased has to be considered

as per the post-mortem examination report. He also stated that

as per the school records, the age of the deceased was only 40

years but the same was not filed before the learned

Commissioner. It is also significant to note that the applicants

have not filed the driving license of the deceased and it appears

that in order to suppress the age of the deceased, they have

purposefully not filed the driving license of the deceased. On

the other hand, the insurance company has produced the MGP,J 7 CMA_348_2013

driving license of the deceased. Furthermore, the applicants

have not raised any objection at the time of marking of the

driving license. When the driving license of the deceased is

available, then the Court has to consider the said document by

not relying upon the post-mortem examination report.

12. It is pertinent to note that the driving license of the

deceased shows the date of birth of the deceased as 10.06.1952,

i.e., the deceased was 59 years old at the time of his death. It is

also pertinent to state that the date of birth for obtaining driving

license will be incorporated based on the particulars given by

the holder of the driving license himself, especially date of birth

certificate. Apparently, it was on the information of the

deceased, his date of birth was recorded in the driving license.

Without considering the same, the learned Commissioner erred

in holding the age of the deceased to be 40 years on the basis of

the post-mortem examination report. Hence, this Court is

inclined to interfere with the findings of the learned

Commissioner to extent of age of the deceased. The learned

counsel for the opposite party No.2 relied upon a decision of the

High Court of Allahabad, Lucknow Bench in New India

Assurance Company Limited v. Washeema Bano and others 1

2023 ACJ 2279 MGP,J 8 CMA_348_2013

wherein it was observed that the date of birth of a licensee on

the driving license is recorded on the particulars given by the

holder of the driving license himself and in such circumstances

the learned Commissioner committed no illegality in holding the

age of the deceased on the basis of his driving license.

13. Therefore, this Court is of the considered view that it is a

fit case to consider the age of the deceased as 59 years while

calculating the compensation. As per schedule IV of the Act,

the appropriate factor for the age of 59 years is '121.05'.

Hence, the applicants are entitled for the following

compensation:

Rs.6,075.25 paise x 50/100 x 121.05 = Rs.3,67,220.30 (rounded off to Rs.3,67,220/-)

14. The learned counsel for the opposite party No.2 further

contended that the learned Commissioner erred in awarding

interest @ 7.5% per annum from the date of application i.e.,

18.07.2007, till the date of orders i.e., 08.02.2013 an amount of

Rs.65,880/- interest on Rs.5,58,703/- in total awarding an

amount of Rs.6,26,201/- and in directing the respondents

before the Commissioner to deposit within 30 days from the

date of receipt of the orders, failing which, the applicants shall

be entitled for further interest @ 12% per annum on the amount

of the compensation, from the date of expiry of the period of one MGP,J 9 CMA_348_2013

month from the date of orders, and the orders of the

Commissioner are perverse and liable to be set aside by the

Court in the interest of justice. As per the decision of the

Honourable Supreme Court in P. Meenaraj vs P.

Adigurusamy 2, the claimants are entitled for interest @ 12%

per annum on the compensation amount from the date of

accident. In Shobha and others v. The Chairman, Viothalrao

Shinde Sahakari Sakhar Karkhana Limited and others 3, the

Honourable Supreme Court held as under:

"4.1 Thus, from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due. As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner."

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

3 2022 (3) ABR1 MGP,J 10 CMA_348_2013

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

decisions, the learned Commissioner ought to have awarded

interest on the compensation amount from the date of accident

rather than from the date of application. Though the

respondents did not challenge the impugned order by filing any

appeal with regard to the awarding interest part, yet the

question being a pure question of law, this Court with a view to

do substantial justice to the respondents, more particularly, the

Act being a beneficial legislation, this Court considers it just

and proper to modify the order of the Commissioner so as to