Telangana High Court

Future Generali India Insurance ... vs Smt. B. Vijaya, Laxmi And 3 Others on 15 April, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
       CIVIL MISCELLANEOUS APPEAL No.999 of 2012

JUDGMENT:

Aggrieved by the order dated 14.05.2012 passed by the

Commissioner for Employees' Compensation-cum-Assistant

Commissioner of Labour-II, Hyderabad (hereinafter be referred

as 'the Commissioner') in W.C.No.168 of 2009, 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 Commissioner.

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

are wife and parents of Sri B.Srinivas (hereinafter be referred as

the deceased) filed claim petition under the provisions of

Employees' Compensation Act, 1923, seeking compensation of

Rs.5,00,000/- along with interest at the rate of 18% per annum

for the death of the deceased, who died in an accident that

occurred on 12.09.2009 during the course and out of his

employment with opposite party No.1. As stated by the

applicants, on 12.09.2009, when the deceased was on duty as a

driver on car bearing No.AP-29BE 6344 and as per instructions MGP,J

of opposite party No.1, while he was proceeding on the said

Innova car along with passengers at about 03:30 A.M when he

reached the outskirts of Jiligaya Gunta, Mannaur Village the

deceased was killed by some unknown persons. As a result, the

deceased died on the spot. The applicants stated that the

deceased died during the course of his employment with

opposite party No.1. Based on a complaint, Police officials of

Amrabad Police Station registered a case in crime No. 117 of

2009 for the offence under Section 302 of Indian Penal Code

and submitted charge sheet. The applicants stated that the

deceased was aged about 32 years and was being paid wages of

Rs.5,000/- per month and Batta of Rs.100/- per day by

opposite party No.1. It is further stated by the applicants that

opposite party No.1 has insured his Car bearing No.AP-29 BE-

6344 with opposite party No.2 vide policy bearing No.2009-

V0168371-FPV and the said policy was valid from 01.01.2009 to

31.12.2009 covering the date of accident. Therefore, the

applicants claimed compensation of Rs.5,00,000/- along with

interest @ 18% per annum from opposite party Nos.1 & 2.

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

No.AP-29 BE-6344, filed his counter, though denied the

employment of the deceased as driver of the car bearing No. AP MGP,J

29 BE 6344, but admitted the occurrence of the accident and

death of the deceased. It was stated that Opposite party No.1

never permitted the deceased as driver of the claim vehicle for

hire or reward on her Innova car from twin cities on the alleged

date of accident. Opposite Party No.1 denied the wages of the

deceased as claimed by the applicants and stated that he used

to draw a sum of Rs.3,000/- per month as salary and Rs.50/-

towards bata per day. It was further stated that the subject car

was insured with opposite party No.2 and is having valid

insurance policy as on the date of accident, hence, opposite

party No.2 alone is liable to pay compensation and prayed to

dismiss the claim against her.

5. Opposite party No.2/Insurance Company filed its counter

and denied the averments made in the claim application

including, employee-employer relationship, employment of the

deceased as driver on car bearing No. AP 29 BE 6344, wage,

age, batta paid to the deceased, narration and occurrence of the

accident, denied that the risk of the deceased is covered by the

insurance policy and further stated that the alleged accident did

not arise out of and during the course of employment of the

deceased with opposite party No.1. It is also contended that the

claim application is not substantiated, speculative and collusive MGP,J

in nature and not maintainable either in law or on facts and the

compensation so claimed is excess and exorbitant. 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, who reiterated the

averments made in the claim application and stated that all the

applicants are totally dependent on the earnings of her deceased

husband and hence, filed claim application seeking

compensation of Rs.5,00,000/- 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

Executive Manager legal in Opposite party No.2-Insurance

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

behalf.

7. After considering the evidence and documents available

on record, the learned Commissioner had awarded an total

amount of Rs.4,00,098/- along with interest @ 12% per annum.

Aggrieved by the same, the present appeal is preferred by MGP,J

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 including the grounds of appeal.

9. The main contention of the learned counsel for the

appellant-Insurance Company is that the death of the deceased

had not taken place during the course and out of his

employment as driver on the Innova car bearing No. AP 29BE

6344 and the said car was not involved in the accident, as such,

the Insurance Company is not liable to pay compensation,

however, the learned Commissioner, without considering the

same, had awarded compensation and thus, prayed to dismiss

the claim petition .

10. Per contra, learned counsel for the respondents stated

that the Commissioner, after considering all the aspects, had

awarded reasonable and just compensation for which the

interference of this Court is not necessary.

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

grounds to set aside the order passed by the learned

Commissioner?

MGP,J

12. This Court has perused the entire evidence and

documents filed on both sides. The main contention of the

learned counsel for the appellant-Insurance Company is that

the deceased was murdered and it is not an accident or death

that occurred during the course and out of his employment and

therefore, it does not come under the purview of the Act.

13. Applicant No.1, who was examined as AW1, had reiterated

the averments made in the claim application and further

deposed that they were totally dependent on the earnings of her

deceased husband, who was contributing his entire earnings for

the maintenance of the family. She relied upon Exs.A1 to A9.

Ex.A1-Certified copy of FIR which discloses that P.S.Amarabad

have registered a case in Crime No.117 of 2009 under Sections

302 IPC and took up investigation and laid charge sheet. Ex.A2

is the certified copy of inquest report which reveals that the

deceased worked as Driver under opposite party No.1. Ex.A4 is

the certified copy of post mortem report which discloses the

cause of death of the deceased. Ex.A5 is the certified copy of

charge sheet. Ex.A6 is the copy of RC of the vehicle which

discloses that opposite party No.1 is the owner of the said

vehicle. Ex.A7 is the copy of driving license and Ex.A8 is the

copy of insurance policy which discloses that the vehicle has MGP,J

valid insurance policy as on the date of accident and Ex.A9 is

the copy of ration card which establishes the relationship of the

applicants with the deceased. Therefore, the applicants have

discharged their initial burden by placing cogent evidence and

also relying upon the relevant documents.

14. On behalf of respondents, the Senior Executive officer of

opposite party No.2-Insurance Company was examined as RW1,

who deposed that the deceased was murdered by some

unknown members and accordingly the Amrabad police

registered a case in Crime No.117 of 2009 under Sections 302 of

IPC and the subject car was no way related or cause for the

death of the deceased and that the alleged murder is not

incidental to the employment of the deceased and it has no

casual connection with his employment and therefore, the death

of the deceased is not out of and in course of the employment.

Therefore, there was no nexus between the death and

employment of the deceased and the Insurance policy issued is

in respect of the car but not in respect of the deceased and

hence, the Insurance company is not liable to pay

compensation. In the Cross-examination, RW2 admitted that as

per Police record, the deceased B. Srinivas was murdered when

he was driving on the Innova Car bearing No. AP 29 BE 6344.

MGP,J

15. 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 was having any sense with

regard to occurrence of any such unexpected attempt on him

that would take away his life, he would have taken some

measures to avoid the death. In the case of an accidental death,

the deceased will have no control over the incident wherein he

was killed. Had he got prior knowledge or presumption of his

death on that day, he might not have attended the duty. As the

death being during the course of his employment, the Insurance

Company is bound to pay the compensation. In Rita Devi and

others v. New India Assurance Company Limited and

another 1, the Honourable Apex Court observed as under:

"In the case of Nisbet vs. Rayne & Burn (1910) 1 KB 689, where a cashier, while travelling in a railway to a colliery with a large sum of money for the payment of his employers workmen, was robbed and murdered. The Court of Appeal held: That the murder was an accident from the standpoint of the person who suffered from it and that it arose out of an employment which involved more than the ordinary risk, and consequently that the widow was entitled to compensation under the Workmens Compensation Act 1906. In this case the Court followed its earlier judgment in the case of Challis (supra). In the case of Nisbet, the Court also observed that it is contended by the employer that this was not an accident within the meaning of the Act, because it was an intentional felonious act which caused the death, and that the word accident negatives the idea of intention. In my opinion, this contention ought not to prevail. I think it was an

(2000) 5 SCC 113...

MGP,J

accident from the point of view of Nisbet, and that it makes no difference whether the pistol shot was deliberately fired at Nisbet or whether it was intended for somebody else and not for Nisbet.

The judgment of the Court of Appeal in Nisbets case was followed by the majority judgment by the House of Lords in the case of Board of Management of Trim Joint District School vs. Kelly (1914 AC 667). Applying the principles laid down in the above cases to the facts of the case in hand, we find that the deceased, a driver of the auto rickshaw, was duty bound to have accepted the demand of fare paying passengers to transport them to the place of their destination. During the course of this duty, if the passengers had decided to commit an act of felony of stealing the auto rickshaw and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver of the auto rickshaw then it cannot but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, it has to be said that on the facts and circumstances of this case the death of the deceased (Dasarath Singh) was caused accidentally in the process of committing the theft of the auto rickshaw. Learned counsel for the respondents contended before us that since the Motor Vehicles Act has not defined the word death and the legal interpretations relied upon by us are with reference to definition of the word death in Workmens Compensation Act the same will not be applicable while interpreting the word death in Motor Vehicles Act because according to her, the objects of the two Acts are entirely different. She also contends on the facts of this case no proximity could be presumed between the murder of the driver and the stealing of the auto rickshaw. We are unable to accept this contention advanced on behalf of the respondents. We do not see how the object of the two Acts, namely, the Motor Vehicles Act and the Workmens Compensation Act are in any way different. In our opinion, the relevant object of both the Acts are to provide compensation to the victims of accidents. The only difference between the two enactments is that so far as the Workmens Compensation Act is concerned, it is confined to workmen as defined under that Act while the relief provided under Chapter X to XII of the Motor Vehicles Act is available to all the victims of accidents involving a motor vehicle. In this conclusion of ours we are supported by Section 167 of the Motor Vehicles Act as per which provision, it is open to the claimants either to proceed to claim compensation under the Workmens Compensation Act or under the Motor Vehicles Act. A perusal of the objects of the two enactments clearly establishes that both the enactments are beneficial enactments operating in the same field, hence judicially accepted interpretation of the word death in Workmens Compensation Act is, in our opinion, applicable to the interpretation of the word death in the Motor Vehicles Act also."

MGP,J

16. Even in the case on hand, a perusal of Ex.A5 charge

sheet, discloses that the accused Nos.1 to 4 with an intention to

commit theft of innova, have committed murder of the deceased

employee during the course of his employment under opposite

party No.1. In view of the principle laid down in the above said

decisions and also the facts and circumstances, it is clear that

the death of the deceased is unexpected, without his knowledge

and it is an accidental act that happened during the course of

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

in force as on the date of accident, as such, the Insurance

Company cannot avoid its liability to pay compensation to the

applicants.

17. Though the opposite party No.2 has raised several

contentions, no cogent and convincing material is produced to

substantiate those contentions. Even otherwise, the

contentions of the opposite party No.2 before this Court are

certainly based on question of fact but not on question of law.

The Honourable Supreme Court in North East Karnataka Road

Transport Corporation v. Sujatha 2 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 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

2 (2019) 11 SCC 514 MGP,J

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."

18. Even in Golla Rajanna etc., v. The Divisional Manager

and another etc., 3 the Honourable Supreme Court held under

the scheme of the Act, the Workmen's Compensation

Commissioner is the last authority on facts. In view of the

principle laid down in the above said authorities, since the

contentions raised by the learned Standing Counsel for the

Opposite Party No. 2/Insurance Company are based on

3 2017 (2) ALD 14 (SC) MGP,J

questions of fact and as the scope of appeal under Section 30 of

the Employee's Compensation Act is very limited, the ambit of

interfering with the order passed by the learned Commissioner

is also limited until and unless the order passed by the learned