Telangana High Court

Cholamandalam Ms General Insurance Co. ... vs Tadi Dilleswara Rao on 15 April, 2024

THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

   CIVIL MISCELLANEOUS APPEAL No.1201 of 2018

J U D G M E N T:

Aggrieved by the order dated 23.08.2018 (impugned

Order) passed in E.C.No.217 of 2014 by the learned

Commissioner for Employees' Compensation and Assistant

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

Commissioner"), Opposite Party 2-Insurance company (for

short "O.P.2") preferred the present Appeal praying this

Court to set aside the impugned Order.

02. For the sake of convenience, hereinafter, the

parties will be referred to as per their array before the

learned Commissioner.

03. Brief facts of the case are that:

The applicants have filed the claim application

seeking compensation of Rs.15,00,000/- on account of the

death of their son in the road traffic accident that occurred

on 16.11.2014.

04. According to applicants, the deceased was

working as Driver-cum-Cleaner on a crane vehicle bearing

No.AP 23P 7666 under the employment of O.P.1. On

16.11.2014, the deceased was on duty as Driver-cum-

Cleaner on the crane vehicle bearing No.AP 23P 7666 and

while he was lifting the fabrication material at

S.B.Fabircation, Dulapally, another driver of the said

vehicle, drove the crane over the deceased in a rash and

negligent manner, as a result of which, the left side front

tyre of the crane ran over the head of the deceased. In the

said accident, the deceased sustained grievous head injury

and died on the spot.

05. It is contended that the P.S.Pet Basheerabad

registered a case in Crime No.478 of 2014 and took up

investigation. It is further contended that the deceased

was aged 20 years as on the date of accident and the

applicants are totally dependant on the earnings of the

deceased. It is further contended that the deceased was

getting wages at Rs.10,000/- per month besides daily

batha of Rs.100/- by O.P.1. The accident occurred while

the deceased was under employment of O.P.1 and of O.P.1

being the owner of the crane vehicle as well as employer of

the deceased and O.P.2 being insurer of the said crane

vehicle are jointly and severally liable to pay compensation.

06. O.P.1 filed counter, wherein, he admitted the

averments made in the claim petition. He also admitted the

manner of accident and death of deceased due to the

injuries sustained in the accident. It is further contended

that the vehicle was having valid insurance policy and was

in force as on the date of accident and the driver was

having valid and effective driving license and therefore,

O.P.2 alone is liable to pay compensation and prayed to

dismiss the claim against him.

07. O.P.2 filed counter denying the averments of

the claim petition, age, income, manner of accident,

injuries sustained by the deceased and also denied the

driving license. They also denied the employer and

employee relationship between O.P.1 and the deceased. It

is further contended that the accident has not occurred

during the course and out of the employment and prayed

to dismiss the claim against them.

08. Before the learned Commissioner, applicant

No.1 was examined as AW1 and he got marked Exs.A1 to

A11. On behalf of O.P.1, no oral or documentary evidence

was adduced. On behalf of O.P.2-Insurance company, its

Legal Manager was examined as RW1 and he got marked

Ex.B1.

09. Considering the claim of applicants and counter

filed by O.P.1 and O.P.2 and on evaluation of oral and

documentary evidence available on record, the learned

Commissioner has awarded compensation of Rs.8,48,450/-

with 12% interest per annum.

10. Aggrieved by the impugned order, appellant-

O.P.2-Insurance company has filed the present appeal.

11. Heard Sri T. Mahender Rao, learned Standing

Counsel appearing for appellant-Insurance Company and

Sri Ch. Indrasena Reddy, learned counsel appearing on

behalf of respondent Nos.1 and 2-applicants. Perused the

material available on record.

12. The main contention of the learned standing

counsel for the Appellant-Insurance company is that the

learned Commissioner has erred in holding that the

deceased worked as Driver-cum-Cleaner on the vehicle

bearing No.AP 23P 7666 and calculated the amount

treating him as a heavy vehicle driver. It is further

contended that in fact, the deceased was shown as Cleaner

in the FIR/Ex.A1 and charge sheet/Ex.A11 and therefore,

the learned Commissioner, ought not to have calculated

the compensation treating him as a Driver instead of

Cleaner and the compensation awarded is excessive and

hence, prayed to allow the appeal by setting aside the

order. Per contra, the learned counsel for respondent

Nos.1 and 2-applicants argued that the learned

Commissioner after considering all the aspects has

awarded just and reasonable compensation and the

interference of this Court is unwarranted.

13. Now the point for consideration is that:

Whether the impugned Order and Decree dated 23.08.2018 passed in E.C.No.217 of 2014 by the learned Commissioner, is liable to be set aside?

P O I N T:

14. This Court has perused the entire evidence and

documents available on record.

15. Applicant No.1, father of deceased as AW1 in

his chief examination has reiterated the contents of claim

application and deposed about the manner of accident and

also death of his son due to the injuries sustained in the

said accident.

16. It is pertinent to state that apart from the oral

evidence, applicants have relied upon documentary evidence

marked under Exs.A1 to A11. Ex.A1-FIR discloses that based

on a complaint/Ex.A2, a case in Crime No.478 of 2014 was

registered by Police, Pet Basheerabad and took up

investigation and laid charge sheet under Ex.A11 against

driver of the vehicle at the time of accident. Ex.A3-Inquest

panchanama discloses the manner of accident. Ex.A4-

Registration certificate, Ex.A5-Permit and Ex.A6-Fitness

certificate of the crime vehicle discloses that O.P.1 is owner of

the vehicle involved in the accident. Ex.A8 is Crime details

form. Ex.A9-Postmortem report shows that the deceased died

due to head injury. Ex.A10-Motor vehicle Inspector report

discloses that the accident has not occurred due to any

mechanical defect of the vehicle.

17. On behalf of respondent No.1, no oral or

documentary evidence was adduced. On behalf of respondent

No.2/ Insurance Company, its Legal Manger was examined as

RW1. He deposed that the deceased was not employed as

Driver-cum-Cleaner under O.P.1 and that the seating capacity

of the vehicle is only one and the same was eligible to drive by

the driver and further no premium was collected for cooli or

cleaner/Addl. Driver. He further deposed that at the time of

accident, the deceased was not driving the vehicle and the

policy does not cover the risk of the deceased. Therefore, the

death of deceased has not taken place during the course and

out of employment with O.P.1. In the cross examination, he

stated that based on the record, he is deposing and he

accepted that the deceased died involving the vehicle bearing

No.AP 23P 7666 and as per the charge sheet/Ex.A11, the

deceased was performing his duties as Driver-cum-Cleaner on

the above said vehicle of O.P.1 at the time of accident and

denied the other suggestions. He further accepted that the

insurance policy covers the risk of driver of the vehicle. He

denied the suggestion that though the deceased was not

physically driving the vehicle, he is covered under the policy

as the coverage of liability is unlimited and that only one

person i.e. deceased died in the accident.

18. It is pertinent to state that there is no dispute

regarding the manner of accident and death of deceased. The

only contention raised by the learned standing counsel for the

appellant/Insurance Company is that the deceased was not

working as Driver-cum-Cleaner, but the learned

Commissioner considered him as Driver-cum-Cleaner and

awarded huge amount towards compensation.

19. As per the charge sheet/Ex.A11, the police made

thorough investigation and laid charge sheet stating

"Investigation reveals that the deceased Sri Tadi Gunanidhi @

Guneswara Rao S/o Dilleswara Rao Age: 20 years is a native

of Hariba Village, Uppalada Post, Parlakimidi Taluq, Gajapathi

District, Orissa working as a crane driver cum cleaner".

Further, O.P.1 being the owner of the vehicle has also

admitted in his counter that the deceased was Driver-cum-

Cleaner.

20. In support of his contention, the learned counsel

for the respondents-applicants relied upon an authority in

Oriental Insurance Co. Ltd. v. Golagani Nagamani and

others 1, wherein the High Court for the erstwhile State of

Andhra Pradesh held as under:

"9. .... A driver on duty on a vehicle must be deemed to be 'engaged in driving' even though he was not actually at the steering wheel and the vehicle was not in motion at the time of the accident...".

21. Learned counsel for the respondents further relied

upon an authority in National Insurance Co.Ltd. v.

Thimmareddy and another 2, wherein the High Court of

Karnataka at Banagalore held as under:

"6. .... even in the case of a spare driver who is not actually driving the vehicle at the time of the accident that under the statutory cover in Section 147(1) proviso (i) (c) as an employee of the owner of the vehicle travelling in the course of employment, the claimant would be entitled to

2000 ACJ 1527

1999 ACJ 399

compensation under the Workmen's Compensation Act....".

22. In view of the above judgments and in view of the

above discussion, this Court is of the considered opinion that

the learned Commissioner after considering all the aspects

has rightly awarded reasonable compensation, which is in a

proper perspective and this Court is not inclined to interfere

with the findings of the learned Commissioner. The appeal is

devoid of merits and substance and liable to be dismissed.

23. 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 Date: 15.04.2024 gvl