Telangana High Court

Cholamandalam Ms Gen Is Co Ltd., ... vs Nekkanti Sujatha, Hyd And Anr on 10 April, 2024

         HON'BLE SMT.JUSTICE M.G.PRIYADARSINI

       CIVIL MISCELLANEOUS APPEAL No.20 of 2017

JUDGMENT:

1. Aggrieved by the order dated 20.10.2016 passed in

E.C.No.59 of 2016, on the file of the Commissioner for

Employees' Compensation and Assistant Commissioner of

Labour-IV, Hyderabad (hereinafter be referred as 'the

Commissioner'), the opposite party No.2/Insurance Company

filed the present Civil Miscellaneous Appeal.

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

referred as they were arrayed before the Commissioner.

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

the wife of the deceased-Nekkanti Sai Prasad @ Saibaba, filed

a petition under the provisions of the Employees'

compensation Act, 1923 seeking compensation of

Rs.8,00,000/- along with interest @ 12% per annum from the

opposite parties on account of the death of the deceased in an

accident that occurred on 31.12.2015. It is stated by the

applicant that the deceased used to work as Driver under the

employment of Opposite party No.1 on her Lorry bearing

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No.AP 16TY 8316 and on 31.12.2015, when the deceased

along with cleaner by name Mr.Ramesh were on duty as

driver and cleaner on the said lorry and loaded cement at KCP

cement, Jaggaiahpet and went to Kothavalasa Village of

Vizianagaram district for unloading the same and proceeded

to Visakhapatnam for loading gypsum in the lorry and went to

Chittapur of Karnataka State for unloading the same and

proceeded to Tandur and loaded Naapa stones and further

proceeded to Bandar (Machilipatnam) of Krishna District. On

the way to Bandar, when they reached near Eedulaguda

Village of Miryalaguda Mandal, Nalgonda District, the Cleaner

of the lorry had cut the throat of the deceased and had stolen

his "Saibaba" Gold ring and some cash from the deceased and

fled away from the spot. Based on a complaint, Police of

Miryalaguda I Town Police Station, Nalgonda District

registered a case in Crime No.4 of 2016 under Sections 302

and 379 IPC. The applicant contended that as the death of

the deceased arose during the course and out of his

employment with opposite party No.1 on her lorry bearing

No.AP-16TY-8316, she is entitled for compensation and hence

filed a claim petition seeking compensation of Rs.8,00,000/-

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along with interest @ 12% per annum from the date of

accident till date of realization against opposite parties 1 & 2.

The applicant stated that the deceased was being paid wages

of Rs.12,000/- per month and Batha of Rs.200/- per day by

opposite party No.1 and that he was aged about 58 years as

on the date of accident. She also contended that the said

lorry was insured with opposite party No.2 and the insurance

policy was valid from 12.02.2015 to 12.02.2016 covering the

date of accident and risk of the deceased. Therefore, the

Insurance Company is also liable to pay compensation.

4. Opposite party No.1, who is the registered owner of the

crime lorry bearing No.AP-16TY-8316, filed her counter

admitting all the averments made in the claim petition and

stated that she used to pay wages of Rs.10,000/- per month

to the deceased and had insured the crime lorry with the 2nd

opposite party and had paid necessary premium to cover the

risk of the driver and the said Insurance policy covers the

date of accident, hence, opposite party No.2 alone is liable to

pay compensation to the deceased and requested to dismiss

the claim against her.

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5. Opposite party No.2/Insurance company filed its

counter denying the averments made in the claim application

including, employment, wage, batha paid to the age, age,

occurrence of the accident, employer-employee relationship,

deceased holding a valid and effective driving license at the

time of accident and further contended that as the complaint

was given by the son-in-law of the deceased and as the lorry

was purchased by the deceased three years ago and he, being

the owner of the said lorry and not a workman, is not entitled

for any compensation and that the amount of compensation

with interest and costs claimed by the applicants is excess

and exorbitant and hence, prayed to dismiss the claim

against it.

6. In support of her case, the applicant No.1 was examined

as AW1. She filed an affidavit in lieu of her chief examination

wherein, she reiterated the contents made in the claim

application. During her cross-examination by 2nd opposite

party/Insurance company, she accepted that the deceased is

the father of the 1st opposite party and she is the mother of 1st

opposite party and the deceased used to work as driver on the

lorry of his daughter on payment of monthly wages. She

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denied the suggestion that the deceased is the owner of crime

vehicle and not a driver on the said vehicle. She also denied

that she filed another W.C.No.21 of 2016. She accepted that

as per complaint, inquest and charge sheet, it is mentioned

that the deceased purchased the lorry in question three years

ago and was driving the said vehicle.

7. Opposite party No.1 was examined as RW1. She filed

an affidavit in lieu of her chief examination wherein she

reiterated the same averments as that of counter filed by her.

She got marked copy of Registration Certificate and Insurance

Policy as Exs.B1 and B2 respectively. During her cross-

examination by opposite party No.2, she denied the

suggestion that since the deceased was her father, there was

no employee-employer relationship between them and also

denied the suggestion that she never paid any wages to the

deceased. She also denied that the deceased is the owner of

the said lorry. She accepted that the deceased was murdered

by the cleaner of the said lorry and that a complaint regarding

the alleged accident was given to police by her husband. She

denied the suggestion that she has not paid additional

premium to cover the risk of the driver. She denied the

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suggestion that the death of the deceased is no way connected

with the said lorry.

8. On behalf of opposite party No.2, RW2, who is working

as Assistant Manager in their office, was examined. He

stated that as per FIR, inquest and charge sheet, the

deceased purchased the lorry about three years back and

driving the said lorry and was murdered by the cleaner. He

further stated that as opposite party No.1 is the daughter of

the deceased, as such, there is no employee-employer

relationship between them and hence, opposite party No.2 is

not liable to pay any compensation. During cross-

examination, RW2 accepted that the Insurance policy was in

force as on the date of accident. He also accepted that as per

Registration Certificate, the 1st opposite party is the owner of

the said lorry on the date of accident.

9. The learned Commissioner, after considering the entire

evidence and documents marked on both sides, awarded

compensation of Rs.4,95,347/- together with interest at 12%

per annum which is payable by both the opposite parties from

02.08.2016 till the date of realization.

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10. Aggrieved by the same, the present Appeal is filed by

opposite party No.2-Insurance Company.

11. Heard both sides.

12. The contentions of the learned counsel for the

appellant-Insurance Company are that the deceased was not

a workman and was owner of the said lorry and had not died

during the course of employment, but was murdered by

cleaner of lorry. Also, opposite party No.1 is the daughter of

the deceased, as such, there is no employee-employer

relationship exists between them. Even in the complaint given

by son-in-law of the deceased, it was stated that the deceased

is the owner of the said crime vehicle and hence, in view of

the said submission, prayed to allow the appeal by setting

aside the order of the learned Commissioner. In support of his

contentions, learned counsel for the appellant-Insurance

Company relied upon the judgment of the Hon'ble Supreme

Court in the case between Gottumukkala Appala Narasimha

Raju and others Vs. National Insurance Company Limited 1

2007(6) ALD 36 (SC)

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wherein, it is held that as no documentary proof was

produced to establish the contract of employment, the claim

petition would not be maintainable.

13. Per contra, learned counsel for the

respondent/applicant contended that the Commissioner, after

taking into consideration the entire evidence and documents

marked on both sides, awarded reasonable compensation for

which interference of this Court is unwarranted.

14. Now the points that emerge for determination are:

1. Whether the applicant is entitled for compensation?

2. Whether the opposite party Nos.1 & 2 are liable to pay compensation?

POINTS:-

15. This Court has perused the entire evidence and

documents available on record. The applicant herself got

examined as AW1. She reiterated the contents of the claim

application and got marked Exs.A1 to A10 on her behalf.

Ex.A1 is the FIR along with complaint. Ex.A2 is the charge

sheet. Ex.A3 is the inquest report. Ex.A4 is the post mortem

examination report. Ex.A5 is the Registration certificate of

the lorry. Ex.A6 is the Insurance policy of the lorry. Ex.A7 is

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the driving license of the deceased. Ex.A8 is the permit of the

lorry. Ex.A9 is the fitness certificate and Ex.A10 is the

Aadhar card of the applicant.

16. On behalf of respondents, RWs 1 & 2, who are the

owner and insurer of the subject lorry were examined and

Exs.B1 to B3 were marked.

17. It is pertinent to note that there is no dispute about the

occurrence of accident and death of the deceased. The first

and foremost contention raised by the learned counsel for the

appellant/Insurance company is that there is no employee-

employer relationship between the deceased and opposite

party No.1 as they are father and daughter respectively and

that the deceased is not a workman, but he is the owner of

the vehicle.

18. A perusal of Registration Certificate, Insurance policy

and permit of the lorry which are filed under Exs.A5, A6 and

A8 shows that opposite party No.1 is the registered owner of

the lorry. Further, RW2, who is working as Assistant

Manager in Insurance Company also admitted during his

cross-examination that as per Ex.A5-Registration Certificate,

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the opposite party No.1 is the owner of the said lorry as on

the date of accident. He also admitted that except relying on

the police records, they had not filed any document to show

that the deceased was the registered owner of the said lorry.

Further, opposite party No.1 examined herself as RW1 and

deposed that the deceased used to work as driver on her lorry

on payment of monthly wages by her. Though RW1 was

cross-examined by opposite party No.2/Insurance company,

nothing adverse was elicited to disbelieve her evidence.

Further, no law prohibits employing a father as a driver on

the vehicle owned by the daughter. In support of the same, it

is apt to refer to the recent decision of the Karnataka High

Court in the case between Divisional Manager

Vs.Smt.Sayeeda Khanam in MFA.No.25711/2011(WC),

wherein, it is held that there is no prohibition under the

Employees Compensation Act for blood relatives to be

employer and employee.

19. In light of the above principle and considering the

documents marked under Exs.A5, A6 & A8 and evidence

adduced by RW2, it is held that the deceased was an

employee working under opposite party No.1, who is the

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registered owner of the subject lorry, on payment of monthly

wages and hence, there exists employee-employer relationship

between them.

20. The other contention raised by the learned counsel for

the appellant is that the deceased had not died during the

course of his employment but was murdered by the cleaner of

the lorry and that the murder does not cover under the

insurance policy, as such, opposite party No.2 is not liable to

indemnify opposite party No.1.

21. In this regard, it is pertinent to mention that the

deceased was on duty as a driver on the lorry bearing No.AP-

16TY-8316 from 31.12.2015 to 07.01.2016 and on

07.01.2016, the deceased had stopped the lorry in the night

houses for a bonafide reason to take rest and accordingly,

slept in the cabin of the lorry. At that time, the Cleaner of the

said lorry got cut the throat of the deceased and committed

theft of gold ring, mobile phone and some money from the

deceased and fled away from the spot. A perusal of post-

mortem examination report also shows that the death of the

deceased was due to 'cut throat injury' which occurred

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unexpectedly and without the knowledge of the deceased

during the course of his employment as a driver. It is

pertinent to state that there is no dispute regarding the

employment of the deceased as Driver under opposite party

No.1. The death was occurred while he was on duty as on the

date of accident. If the deceased is aware of the plan hatched

by the cleaner, he would have taken some measures to avoid

his death. In the case of an accidental death, the deceased

had no control on the incident wherein he was killed. Had he

got prior knowledge or presumption of his death on that day,

he might have not attended the duty. As the death being

during the course of his employment, the Insurance Company

is bound to pay compensation. Moreover, if the deceased

knows that he would be murdered by the cleaner of the said

lorry, he would not have asked him to accompany in the lorry.

Therefore, it is clear that the death of the deceased is

unexpected and without his knowledge during the course of

employment under opposite party No.1. Further, the policy

was in force as on the date of accident. The Insurance

company cannot avoid its liability to pay compensation to the

applicants.

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22. It is pertinent to state that when there is a lack of

design on part of a person who suffered injury, then the act

which caused that injury on that person is certainly an

accident. In this case, the deceased -workman did not have

any design to suffer a homicidal attack though it can be said

that there was design on part of cleaner of the same lorry to

cause injury on the deceased-workman.

23. Therefore, from the above, it is clear that the murder of

the deceased amounts to an accident and he died during the

course and out of his employment as driver on lorry bearing

No.AP-16TY-8316. The said finding is supported by the

decision of the High Court of Madhya Pradesh in the case

between Sathiya v.P.W.D. 2 wherein it is held that murder

during the employment is an unexpected incident and it

should be considered as an accident. Also, in the case

between M/s.Star Press Vs. Meena Devi reported on

12.04.2017, the Hon'ble Delhi High Court at Paras 31.4 and

31.5 held as under:-

31.4. If the employee could not and did not reasonably anticipate that the unforeseen incident

(1975 1 LLJ 394)

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(murder) would happen to him, it is an accident. The word 'accident' excludes the idea of willful and intentional act but the phrase would include an accidental happening so far as the employee was concerned.

31.5. The employees compensation act is a social beneficial legislation and has to be liberally construed. It was enacted to give succour to employees against injuries caused by accident. The object of the Act does not specify the applicability of the Act only in case of accidents by machines only.

The injury caused by the act of another human being that result in fatal injuries tantamount to murder quo the assailant and an accidental act qua the employee."

24. In view of the decisions referred supra, the death of the

deceased was due to accidental murder which arose during

the course of his employment with opposite party No.1 and

hence, opposite party No.2 is liable to indemnify opposite

party No.1 as the subject lorry had valid insurance policy

covering the date of accident.

25. In view of the foregoing discussion, this Court is of the

considered opinion that the learned Commissioner has rightly

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discussed all the aspects and by applying minimum rates of

wages fixed by the Government vide G.O.Ms.No.83, LET & F

(Lab.II) Department, dated 22.11.2006 w.e.f. 04.12.2006 and