Telangana High Court
The New India Assurance Co Ltd vs Mengani Sadanandam And Anr on 20 February, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.266 of 2014
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed
against order dated 05.01.2006 in W.C.No.24 of 2004 on the file of
the Commissioner for Workmen's Compensation and Assistant
Commissioner of Labour, Warangal-I, (hereinafter referred to as
'the Commissioner'). The said claim application was filed by the
applicant therein seeking compensation for injuries sustained by
him in an accident that occurred on 24.01.2004 and the same was
partly allowed by the Commissioner awarding compensation of
Rs.1,94,472/-. Aggrieved by the same, the present Civil
Miscellaneous Appeal is filed at the instance of opposite party
No.2 before the Commissioner i.e., the insurance company.
2. The appellant herein is opposite party No.2, respondent No.1
herein is applicant and respondent No.2 herein is opposite party
No.1 before the Commissioner. 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 applicant are that he was
working as labourer on Bajaj Tempo Minidor Auto Trolley bearing
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No. AP 36 U 7541 under the employment of opposite party No.1.
On 24.01.2004, during the evening hours, the applicant and
driver of the said vehicle loaded coconut bags at Bhavani Traders,
Old Beet Bazar, Warangal and started to Jangaon to unload the
same at Natarajeswara Kirana Merchant, Jangaon. While so,
when the said vehicle reached near Raghunathpally Sub-station
on Warangal-Hyderabad Road, the driver of the said vehicle drove
the vehicle in high speed in rash and negligent manner and lost
control over the same. Due to which, the vehicle turned turtle and
the applicant fell down under the trolley cabin and his two legs
were crushed under it. The applicant sustained grievous fracture
on medial upper 1/3 of right leg, grievous fracture in middle 1/3
of right leg (both bones of right leg), grievous fracture on medial
side of left food and deformity left ankle (bymallabur deformity left
ankle), Grade-III compound fracture of both bones, dislocation of
right hip and other injuries all over the body. Immediately, the
applicant was shifted to M.G.M. Hospital, Warangal, for treatment.
With regard to the accident, a case was registered in Crime No.4 of
2004 on the file of the Police Station Raghunathpally under
Section 338 of the Indian Penal Code, 1860.
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4. It is further the case of the applicant that he was aged about
32 years as on the date of the accident and that he was being paid
an amount of Rs.3,000/- per month towards wages apart from
daily batha. Further, the accident occurred during the course and
out of his employment under opposite party No.1. The vehicle
involved in the accident was owned by opposite party No.1 and
insured with opposite party No.2. Hence, the present claim
application is filed seeking compensation of Rs.2,93,544/-.
5. Opposite party No.1 filed his counter and admitted the
employment of applicant under him. He also admitted that he
was owner of the vehicle involved in the accident and stated that
the said vehicle was insured with opposite party No.2 under valid
and effective policy as on the date of the accident. He stated that
the applicant was being paid an amount of Rs.2,500/- per month
towards wages and not Rs.3,000/- as claimed by the applicant.
He also contended that as the vehicle involved in the accident was
insured with opposite party No.2, as such, if there is any liability
opposite party No.2 alone is liable to pay. Therefore, prayed to
dismiss case against him.
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6. Opposite party No.2 filed its counter denying the averments
of the claim application such as age, wages, employment of the
applicant under opposite party No.1, occurrence of the accident
and also injuries sustained by the applicant. It is also contended
that the driver of the vehicle involved in the accident was not
having valid driving license as on the date of the accident.
Opposite party No.2 prayed to dismiss the claim application as the
compensation claimed by the applicant is excess and exorbitant.
7. In support of his case, the applicant got examined himself as
P.W.1 and got examined P.W.2 and got marked Exs.A-1 to A-10.
Opposite party No.2 got examined R.W.1 and Ex.B-1 was got
marked.
8. On the basis of the above pleadings and evidence, the
Commissioner framed the following issues:
"1. Whether the injured Mengani Sadanandam is workman
under W.C. Act?
2. What was the age of the injured at the time of accident?
3. What was the wage paid to the injured at the time of the
accident?
4. How much compensation payable?
5. Who is liable to pay compensation?"
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9. After considering the evidence and documents filed by both
sides, the Commissioner awarded an amount of Rs.1,94,472/-
towards compensation to the applicant. Aggrieved by the same,
the present appeal is filed by opposite party No.2.
10. Heard, the learned standing counsel for the appellant-
insurance company and also the learned counsel for respondent
No.1
11. The main contention of the learned counsel for the
appellant/opposite party No.2 is that there was no employee and
employer relationship between the applicant and opposite party
No.1, without considering the said aspect, the Commissioner has
awarded compensation. It is also contended that no premium was
paid by opposite party No.1 to cover the risk of labourer under the
policy. It is further contended that the Commissioner erred in
considering the loss of earning capacity of the applicant at 60%,
as the same is on higher side. Hence, prayed to allow the appeal
and set aside the impugned order passed by the Commissioner.
12. Per contra, the learned counsel for respondent
No.1/applicant contended that the Commissioner after
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considering all the aspects has awarded reasonable compensation
and interference of this Court is unnecessary. Hence, prayed to
dismiss the appeal.
13. Now, the point for determination is as follows:
"Whether the applicant is entitled for the compensation
as granted by the Commissioner?"
Point:-
14. This Court has perused the entire evidence and documents
placed on record by both the parties. The applicant got examined
himself as P.W.1 reiterating the contents of the claim application
such as manner of the accident and also injures sustained by
him. Though, P.W.1 was cross-examined, nothing contrary was
elicited in the same. In order to prove injuries sustained by the
applicant, he got examined P.W.2, who is Assistant Civil Surgeon
in M.G.M. Hospital, Warangal. P.W.2 deposed that on
16.09.2004, the applicant came to M.G.M. Hospital, for issuance
of disability certificate from Regional Medical Board Warangal and
after examining the applicant, he found three inches shafts of
right lower limb and wasting of calf muscle with stiffness of right
ankle, right hip and ankle. He determined the disability at 80%
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and issued certificate under Ex.A-9. He also deposed that the
disability is permanent in nature and there is no scope for
improvement and that the applicant cannot attend hard work in
future. Though, he was cross-examined, nothing contrary was
elicited.
15. Opposite party No.2 got examined its employee as R.W.1.
R.W.1 reiterated the contents of the written statement. The
evidence of R.W.1 shows that opposite party No.1 got insured the
vehicle involved in the accident with them and the policy was valid
and effective as on the date of accident. He stated that no
additional premium was paid to cover the risk of labourer by
opposite party No.1. In the cross-examination, he denied the
suggestion that opposite party No.2 is liable to pay compensation
to the labour.
16. Apart from the evidence of the P.W.2, the applicant also
placed reliance on Exs.A-1 to A-12. A perusal of Ex.A-1 shows
that the Police Raghunathpally have registered case in Crime No.4
of 2004 and took up investigation and laid charge sheet under
Ex.A-4. Ex.A-2 is copy of the wound certificate, Ex.A-3 is copy of
radiologist report, Ex.A-5 is copy of registration certificate, Ex.A-6
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copy of driving license, Ex.A-7 copy of insurance policy, Ex.A-8 is
original discharge card, Ex.A-9 is original disability certificate and
Ex.A-10 is copy of photo of the applicant. All these documents
clearly disclose the treatment underwent by the applicant,
involvement of the vehicle owned by opposite party No.1 and also
that the said vehicle was insured with opposite party No.2. In the
said circumstances, there is no dispute with regard to occurrence
of the accident, injuries sustained by the applicant and employee
and employer relationship between the applicant and opposite
party No.1. Hence, the contention of the learned counsel for the
appellant/opposite party No.2 that there was no employee and
employer relationship between the applicant and opposite party
No.1 is unsustainable.
17. It is also pertinent to state that the insurance policy under
Ex.A-7/B-1 was in force as on the date of the accident. However,
the main dispute raised by the learned counsel for the
appellant/opposite party No.2 is that there is no additional
premium paid to cover the risk of applicant, who is labourer. In
this regard, it is apt to refer to the decision of the Hon'ble Apex
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Court in the case of Oriental Insurance Company Limited v.
Meena Variyal 1, wherein it was held as under:
"Uninfluenced by authorities, we find no difficulty in
understanding this provision as one providing that the
policy must insure an owner against any liability to a third
party caused by or arising out of the use of the vehicle in a
public place, and against death or bodily injury to any
passenger of a public service vehicle caused by or arising
out of the use of vehicle in a public place. The proviso
clarifies that the policy shall not be required to cover an
employee of the insured in respect of bodily injury or death
arising out of and in the course of his employment. Then,
an exception is provided to the last foregoing to the effect
that the policy must cover a liability arising under the
Workmen's Compensation Act, 1923 in respect of the
death or bodily injury to an employee who is engaged in
driving the vehicle or who serves as a conductor in a
public service vehicle or an employee who travels in the
vehicle of the employer carrying goods if it is a goods
carriage. Section 149(1), which casts an obligation on an
insurer to satisfy an award, also speaks only of award in
respect of such liability as is required to be covered by a
policy under clause (b) of subsection (1) of Section 147
(being a liability covered by the terms of the policy). This
provision cannot therefore be used to enlarge the liability if
it does not exist in terms of Section 147 of the Act. 14. The
object of the insistence on insurance under Chapter XI of
the Act thus seems to be to compulsorily cover the liability
relating to their person or properties of third parties and in
respect of employees of the insured employer, the liability
that may arise under the Workmen's Compensation Act,
1923 in respect of the driver, the conductor and the one
carried in a goods vehicle carrying goods."
18. Admittedly, the vehicle involved in the accident is a goods
carrying vehicle. In view of the above discussion and considering
the principle laid down in the above said decision and since the
(2007) 5 SCC 428
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applicant was not a gratuitous passenger and as he was an
employee rendering his services to opposite party No.1 under
employee and employer relationship, the contention of the learned
counsel for the appellant/opposite party No.2 that the policy does
not cover the risk of the injured being labourer, is unsustainable.
Therefore, opposite party No.2 is liable to indemnify the opposite
party No.1 i.e., owner of the vehicle.
19. Even otherwise, the contention of the opposite party No.2
before this Court is certainly based on question of fact. The
Hon'ble Supreme Court, in the case of Golla Rajanna v. The
Divisional Manager 2 held that as per the scheme of the
Workmen's Compensation Act, 1923, the Commissioner is the last
authority on facts. In view of the principle laid down in the above
said case, since the contentions raised by the learned counsel for
the appellant/opposite party No. 2 are based on questions of fact,
it is evident that scope of appeal under Section 30 of the
Workmen's Compensation Act, 1923, is very limited, thereby the
ambit of interfering with the order passed by the Commissioner is
also limited until and unless the order passed by the
Commissioner is perverse or when there is patent irregularity or
2017 (2) ALD 14 (SC)
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illegality committed by the Commissioner while passing the
impugned order. Moreover, when two interpretations are possible,
the interpretation, which is favourable to the applicant, shall be
taken into consideration, since the Workmen's Compensation Act,
1923, is a beneficial legislation enacted to protect the interest of
workmen.
20. Coming to the quantum of compensation, the Commissioner
after considering all the aspects as well as the evidence on record
has rightly determined the age of the applicant and also considered
minimum wages while calculating the compensation. Further,
considering the evidence of P.W.2 and the injuries sustained by the
applicant, the Commissioner has rightly assessed the loss of
earning capacity at 60%, which is just and reasonable and
interference of this Court is unwarranted.
21. Under these circumstances, this Court is of the considered
opinion that the Commissioner after considering all the aspects
has rightly awarded just and reasonable compensation and
interference of this Court is unwarranted. The appeal is devoid of
merits and the same is liable to be dismissed.
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22. In the result, the Civil Miscellaneous Appeal is dismissed
confirming the order dated 05.01.2006 in W.C.No.24 of 2004 on
the file of the Commissioner for Workmen's Compensation and
Assistant Commissioner of Labour, Warangal-I. There shall be no
order as to costs. Miscellaneous applications, if any pending,
shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Date: 20.02.2024
GVR
