Telangana High Court

The New India Assurance Co. Ltd., vs Smt. Haseena And 6 Others on 13 February, 2024

     THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI


       CIVIL MISCELLANEOUS APPEAL Nos.237 of 2013
                     and 672 of 2014


COMMON JUDGMENT:

1. These Civil Miscellaneous Appeals are directed against order

dated 22.11.2012 in W.C.No.9 of 2012 on the file of the

Commissioner for Employees' Compensation and Assistant

Commissioner of Labour-IV, Hyderabad (hereinafter referred to as

'Commissioner'). The said claim application was filed by the

applicants therein seeking compensation for death of one Sri

Raheem Pasha @ Patil Raheem Pasha (hereinafter referred to as

'deceased') in an accident that occurred on 17.01.2017 and the

same was partly allowed granting compensation of Rs.5,21,260/-.

Aggrieved by the said order, opposite party No.2 before the

Commissioner filed C.M.A.No.237 of 2013 seeking to set aside the

impugned order and dismiss the claim application and the

applicants before the Commissioner filed C.M.A.No.672 of 2014

seeking enhancement of the compensation granted by the

Commissioner. Since both the appeals are arising out of same

order, they are being dealt with by way of this common judgment.

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2. The applicants before the Commissioner are respondent

Nos.1 to 6 in C.M.A.No.237 of 2013 and appellants in

C.M.A.No.672 of 2014. Opposite party No.1 before the

Commissioner is respondent No.7 in C.M.A.No.237 of 2013 and

respondent No.1 in C.M.A.No.672 of 2014. Opposite party No.2

before the Commissioner is appellant in C.M.A.No.237 of 2013

and respondent No.2 in C.M.A.No.672 of 2014. For the sake of

convenience, the parties are hereinafter referred to as they were

arrayed before the Commissioner.

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

applicant No.1 is wife, applicant Nos.2 to 4 are children and

applicant No.5 and 6 are parents of the deceased. The deceased

was working as driver of auto bearing No.AP 26 X 4520 under the

employment of opposite party No.1. On, 17.01.2012, during the

course of his employment, the deceased went online and picked

up passengers at Shadan Hospital and was proceeding towards

Asifnagar. On the way, at about 09:00 hours, when the auto

reached near a turning at Raghuramnagar, the auto dashed

against road divider and turned turtle. As a result accident

occurred, the deceased feel from the auto and sustained injuries.

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Immediately, the deceased was shifted to Osmania General

Hospital, Hyderabad, for treatment, where the doctors declared

him as dead. In this regard, a case was registered in Crime No.10

of 2012 on the file of Narsingi Police Station under Section 304-A

of the Indian Penal Code, 1860.

4. It is further the case of the applicants that the deceased was

aged about 39 years and was being paid an amount of Rs.6,500/-

per month towards wages and Rs.100/- per day towards batha by

opposite party No.1. The accident occurred during the course and

out of his employment as driver. The auto involved in the accident

was owned by opposite party No.1 and was insured with opposite

party No.2 with valid insurance policy as on the date of the

accident. Opposite party No.1 being the owner and opposite party

No.2 being the insurer are liable to pay compensation to the

applicant. Hence, the applicants filed the present claim

application seeking compensation of Rs.9,00,000/- along with

interest.

5. Opposite party No.1 filed his counter admitting the death of

the deceased, monthly wages and daily batha paid to him, age of

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the deceased and stated that the auto involved in the accident was

insured with opposite party No.2 with valid and effective

insurance policy. As such, opposite party No.2 is liable to

indemnify opposite party No.1. Hence, prayed to dismiss the

claim against him.

6. Opposite party No.2 filed its counter denying the averments

of the claim application such as employee and employer

relationship between the deceased and opposite party No.1,

occurrence of the accident, age and wages of the applicant. It is

also contended that the deceased was not having valid and

effective driving license as on the date of the accident. It is the

contention of opposite party No.2 that the deceased is not

employed as driver under opposite party No.1 and the auto

involved in the accident belongs to the family of deceased and that

the deceased and opposite party No.1 are father and son. Hence,

prayed to dismiss the claim application.

7. In support of their case, the applicants got examined A.W.1

and got marked Exs.A-1 to A-6. Opposite party No.1 was got

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examined as R.W.1 and got marked Exs.B-1 and B-2 and opposite

party No.2 got examined R.W.1 and got marked Ex.B-3.

8. On the basis of the above pleadings, the following issues

were framed by the Commissioner:

"1. Whether the deceased was an employee within the meaning of the Act?

2. Whether the deceased died due to the injuries sustained in an accident that arose out of and in the course of employment?

3. If yes, who are liable to pay compensation to the dependants of the deceased?

4. What is the quantum of compensation entitled by the dependants of the deceased?"

9. After considering the pleadings and evidence on record, the

Commissioner held that the applicants have successfully proved

their case. Hence, the claim application was partly allowed

holding that both the opposite parties were liable to pay

compensation and granted an amount of Rs.5,21,260/- towards

compensation payable to the applicants.

10. Heard both sides.

MGP,J CMA_237_2013 & CMA_672_2014

11. Learned counsel for opposite party No.2/appellant in

C.M.A.No.237 of 2013 contended that the deceased was father of

opposite party No.1 and there was no employee and employer

relationship between both of them, without considering the said

fact the Commissioner erred in awarding compensation to the

applicants. It is also contended that the income of the deceased is

considered by the Commissioner on higher side. Hence, prayed to

allow the appeal and set aside the impugned order.

12. Per contra, the learned counsel for the applicants/appellants

in C.M.A.No.672 of 2014 contended that though, opposite party

No.1 agreed that the deceased was being paid an amount of

Rs.6,500/- per month towards wages and Rs.100/- towards

batha, the Commissioner without considering the same has

awarded meager amount towards compensation by taking into

consideration the minimum wages of the deceased at

Rs.5,246.25/- per month. It is also contended that without

considering all the aspects the Commissioner has granted

compensation of Rs.5,21,260/- and interest, which are on lower

side. Hence, prayed to allow the appeal and enhance

compensation awarded by the Commissioner.

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13. Now the point for determination is as follows:

"1. Whether the applicants are entitled for enhancement of compensation as prayed for?

2. Whether the Commissioner is justified in granting compensation based on the evidence on record?"

Point Nos.1 and 2:

14. This Court has perused the entire evidence and material

placed on record. The applicants got examined applicant No.1 as

A.W.1, who reiterated the contents of the claim application and

deposed about the manner of the accident and death of the

deceased. In the cross-examination, she denied all the

suggestions put to her and nothing contrary was elicited.

15. Opposite party No.1 was examined as R.W.1, in support of

the case of the applicants, he deposed that he is owner of the

vehicle involved in the accident. He also deposed that the

deceased was employed under him as driver and that the

deceased was paid an amount of Rs.6,500/- per month towards

wages and Rs.100/- per day towards batha. He further stated

that the auto involved in the accident was insured with opposite

party No.2 with valid and effective insurance policy and that

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opposite party No.2 is liable to indemnify opposite party No.1. He

also filed Exs.B-1 and B-2. In the cross-examination, R.W.1

admitted that the deceased was his father. However, he stated

that the deceased was doing his job as driver on the auto owned

by opposite party No.1. He denied the suggestions with regard to

non-existence of employee and employer relationship between the

deceased and himself.

16. On behalf of opposite party No.2, its Assistant Manager was

examined as R.W.2. She reiterated the contents of the counter

and deposed that deceased was not having valid driving license at

the time of the accident to drive the goods carrying commercial

vehicle. She also deposed that the deceased was father of opposite

party No.1 as such there was no employee and employer

relationship between them. In the cross-examination, R.W.2

deposed that she was deposing purely on the basis of record and

she had no personal knowledge about the matter. She denied the

suggestion that the auto was not used for the family

entertainment of the deceased. She also denied that there was

employee and employer relationship between the deceased and

opposite party No.1.

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17. It is pertinent to state that a perusal of Ex.A-1 copy of first

information report in Crime No.10 of 2012 on the file of Police

Station Narsingi and Ex.A-2 certified copy of inquest report clearly

discloses that the applicant was driver of auto bearing No.AP 26 X

4520 and on 17.01.2012, while on duty as driver of the said auto,

he met with an accident. On the said day, when he was

proceeding from Shadan Hospital to Asifnagar, at about 09:00

hours, when the auto reached near a turning at Raghuramnagar,

the auto dashed road divider and turned turtle, as such the

accident occurred. Immediately, he was shifted to Osmania

General Hospital, where he was declared dead. Hence, there is no

dispute with regard to occurrence of the accident. It is also not in

dispute that the deceased was holding valid and effective driving

license as on the date of the accident, which was marked as

Ex.A-3. Further, Ex.A-6/Ex.B-3 insurance policy clearly discloses

that the same was in force as on the date of the accident.

18. The main dispute in the present matter is with regard to

employee and employer relationship between the deceased and

opposite party No.1. Learned counsel for opposite party

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No.2/appellant in C.M.A.No.237 of 2013 contended that there is

no employee and employer relationship between the deceased and

opposite party No.1, as they are father and son. It is pertinent to

state that opposite party No.1, employer, who is the owner of the

said auto, was examined as R.W.1 and he categorically deposed

that the deceased was working as driver under his employment on

the said auto. In cross-examination also he admitted that the

deceased, who is happened to be his father, was working under

his employment as driver. At this juncture, it is apt to refer to the

decision of the Apex Court in Smt.T.S.Shylaja v. Oriental

Insurance Company 1, wherein at paragraph Nos.9 and 10 it was

held as under:

"9. The Commissioner for Workmen's Compensation had, in the case at hand, appraised the evidence adduced before him and recorded a finding of fact that the deceased was indeed employed as a driver by the owner of the vehicle no matter the owner happened to be his brother. That finding could not be lightly interfered with or reversed by the High Court. The High Court overlooked the fact that the respondent-owner of the vehicle had appeared as a witness and clearly stated that the deceased was his younger brother, but was working as a paid driver under him. The Commissioner had, in this regard, observed:

"After examining the judgment of the Andhra Pradesh High Court relied upon by 2nd opponent

AIR 2014 Supreme Court 893

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it is seen that the owner of the vehicle being the sole witness has been unsuccessful in establishing his case but in this proceeding the owner of the vehicle has appeared before this Court even though he is a relative of the deceased, and has submitted in his objections, even evidence that even though the deceased was his younger brother he was working as a driver under him, and has admitted that he was paying salary to him. The applicant in support of his case has submitted Hon'ble High Court judgment reported in ILR 2006 KAR 518. The Divisional Manager, United India Insurance Company Ltd. Vs. Yellappa Bheemappa Alagudi & Ors. which I have examined in depth which holds that there is no law that relatives cannot be in employer employee relationship. Therefore it is no possible to ignore the oral and documentary evidence in favour of the applicant and such evidence has to be weighed in favour of the applicant. For these reasons I hold that the deceased was working as driver under first opponent and driving Toyota Quails No.KA-02-C-423, that he died in accident on 03.09.2005, that he is a 'workman' as defined in the Workmen's Compensation Act and it is held that he has caused accident in the course of employment in a negligent fashion which has resulted in his death".

10. The only reason which the High Court has given to upset the above finding of the Commissioner is that the Commissioner could not blindly accept the oral evidence without analysing the documentary evidence on record. We fail to appreciate as to what was the documentary evidence which the High Court had failed to appreciate and what was the contradiction, if any, between such documents and the version given by the witnesses examined before the Commissioner. The High Court could not have, without adverting to the documents vaguely referred to by it have upset the finding of fact which the Commissioner was entitled to record. Suffice it to say that apart from appreciation of evidence adduced before the Commissioner the High Court has neither referred to nor

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determined any question of law much less a substantial question of law existence whereof was a condition precedent for the maintainability of any appeal under Section 30. Inasmuch as the High court remained oblivious of the basic requirement of law for the maintainability of an appeal before it and inasmuch as it treated the appeal to be one on facts it committed an error which needs to be corrected."

19. A plain reading of principle laid down in the above decision

clearly indicates that merely the deceased being employed as

driver under the employment of opposite party No.1,

owner/employer, who is happened to be the son of the deceased,

the insurance company/opposite party No.2 was not bound to

make contention that there is no employee and employer

relationship between the deceased and opposite party No.1. The

said contention of the opposite party No.2/insurance company is

not based on a question of law, but it is purely a question of fact,

which cannot be raised before this Court as per Section 30 of the

Workmen's Compensation Act, 1923. Hence, the above said

contention of the learned opposite party No.2/appellant in

C.M.A.No.237 of 2013 is unsustainable. Under these

circumstances, this Court is of the considered opinion that the

Commissioner, after considering all the aspects, has rightly came

to the conclusion in awarding compensation to the applicants.

MGP,J CMA_237_2013 & CMA_672_2014

Thus, this Court is not inclined to interfere with the said findings

of the Commissioner.

20. Coming to the quantum of compensation, the applicants

contended that the deceased was 39 years at the time of the

accident and opposite party No.2 disputed the same. However,

the Commissioner relying upon Ex.A-3 driving license of the

deceased came to the conclusion that the deceased was aged

about 39 years as on the date of the accident. Hence, interference

of this Court into the said aspect is unwarranted.

21. With regard to the aspect of the wages of the deceased, it is

pertinent to state that the case of the applicants is that the

deceased was being paid an amount of Rs.6,500/- per month

towards wages by opposite party No.1 and Rs.100/- per day

towards batha. In support of the said contention, opposite party

No.1 was examined, who supported the case of the applicants with

regard to payment of wages and batha. On the other hand,

though opposite party No.2 disputed the payment of wages of

Rs.6,500/- per month and Rs.100/- per month towards batha, no

evidence of any kind was produced by opposite party No.2. In the

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said circumstances, the Commissioner considering the minimum

rates of wages fixed by the Government at the time of the accident

and also considering the restriction of wages as per the Gazette

issued by the Government of India at maximum of Rs.8,000/- per

month has determined the wages of the deceased at Rs.5,246.25/-

per month. However, the Commissioner failed to consider the

evidence of opposite party No.1 as R.W.1 that he was paying an

amount of Rs.6,500/- per month towards wages and Rs.100/-

towards batha to the deceased. Therefore, considering the said

aspects, this Court is of the opinion that the wages of the

deceased considered by the Commissioner is on little lower side.

Hence, the same can be enhanced to Rs.6,000/- per month.

Therefore, as per the formula, the calculation of compensation

amount is as follows:

Rs.6,000/- X 50/100 X 186.90 = Rs.5,60,700/-

22. The Commissioner has also granted an amount of Rs.980/-

towards stamp fee and Rs.500/- towards advocate fee. After

adding the said amounts, the total amount of compensation

comes to Rs.5,62,180/-.

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23. Insofar rate of interest is concerned, as per the decision of the

Hon'ble Supreme Court in P. Meenaraj v. P. Adigurusamy 2, held

as under:

"10. As regards the date of commencement of the liability of interest, the learned counsel for the appellant appears to be right that even in the case of Pratap Narain Singh Deo (supra), this Court has not laid down the law that the interest would be payable only 30 days after the accident. In our view too, the said statutory period of 30 days does not put a moratorium over the liability of interest. Such interest is related with the amount of compensation receivable by the claimant and there appears no reason for not allowing interest for 30 days from the date of accident. In fact, in the referred decisions too, this Court has allowed interest from the date of accident. That being the position, the questioned part of the order of the High Court calls for interference and the same is modified to the extent that the appellant would be entitled to interest from the date of accident."

24. In view of the principle laid down in the above said decision,

it is evident that the applicants are entitled for interest at 12% per

annum on the compensation amount from the date of accident till

date of deposit. Hence, this Court is inclined to award interest at

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

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12% per annum on the compensation amount from the date of

accident till the date of deposit.

25. In the result, Civil Miscellaneous Appeal No.237 of 2013 is

dismissed and Civil Miscellaneous Appeal No.672 of 2014 is partly

allowed by enhancing the compensation from Rs.5,21,260/- to

Rs.5,62,180/- payable along with interest at 12% per annum on