Telangana High Court
United India Insurance Company ... vs G. Jitender Kumar And Another on 22 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL NO.647 OF 2013
JUDGMENT:
Aggrieved by the order dated 10.07.2006 in W.C.Case No.40 of
2003 passed by the learned Commissioner for Workmen's
Compensation and Assistant Commissioner of Labour-I, at Hyderabad,
the opposite party No.2/Insurance company has filed the present Civil
Miscellaneous Appeal.
2. For the sake of convenience, hereinafter, the parties will be
referred as per their array before the learned Assistant Commissioner.
3. The brief facts of the case are that the applicant has filed an
application under the provisions of Workmen's Compensation Act,
1923 (amended as Employee's Compensation Act, 1923) claiming
compensation of Rs.3,00,000/- against the employer of the deceased
and the insurer respectively for the injuries sustained by the
applicant.
4. The applicant in his claim application stated that he was
working as a cleaner in the lorry bearing No. AP 28 U 2789, under the
employment of opposite party No.1 on payment of a monthly salary of
Rs.3,000/-. On 08.02.2003 on the instructions of opposite party No.1
the applicant was proceeding on the vehicle from Manthani to 2 MGP,J CMA_647_2013
Hyderabad with a load of sand and when the said lorry reached
Kamanpur cross roads near a culvert at Gundaram village, the driver
of the vehicle drove the same in rash and negligent manner at high
speed, due to which the vehicle went off the road and turned turtle.
As a result, the applicant sustained grievous injuries. Immediately, the
applicant was shifted to Gandhi Hospital, Secunderabad for treatment
as in-patient. The applicant underwent surgery on his right leg and
two fingers of the right leg were removed. A case in Crime No.89 of
2003 under Section 338 of the Indian Penal Code was registered by
Police at Kamanpur Police Station, Karimnagar District and thereafter
charge sheet was laid for the offence under Section 338 of the Indian
Penal Code. As on the date of accident, the applicant was aged about
23 years and drawing a monthly salary of Rs.3,000/- under the
employment of opposite party No.1. Due to the injuries, the applicant
became permanently disabled, as such, he is unable to do work as a
cleaner or any work as he used to do prior to the date of accident. The
accident occurred during the course and out of his employment under
opposite party No.1 and as the insurance policy was subsisting as on
the date of the accident, the opposite party No.1 being the owner and
opposite party No.2 being the insurer, are jointly and severally liable to
pay compensation of Rs.3,00,000/- to the applicant.
3 MGP,J CMA_647_2013
5. The opposite party No.1, in his counter did not dispute the
averments of the application including age, income of the deceased as
cleaner on his lorry bearing No. AP 28 U 2789, admitted the manner of
the accident and injuries sustained during the course of his
employment in the accident that occurred on 13.05.2003 and that he
has insured his lorry with the opposite party No.2 and the policy was
valid as on the date of the accident. It is further contended that if any
compensation is awarded to the applicant, the same has to be satisfied
by opposite party No.2 and prayed to dismiss claim against him.
6. The opposite party No.2 filed counter denying the averments
of the application including age, wages of the applicant as cleaner
under opposite party No.1, manner of accident and employer-employee
relationship between the opposite party No.1 and applicant. It is
contended that the crime vehicle is insured in the name of Sri. T
Sambashiva Rao and the applicant has categorically stated that he is
employed under Mr. Damodar Reddy, however, he has filed claim
application against Mr. Jitender Kumar and the employer is not made
party to the claim application. It is further contended that the claim of
the applicant was excessive, exorbitant and prayed to dismiss the
application.
7. On behalf of the applicant, A.W-1 and P.W-2 were examined
and Exs.A1 to A4 were marked. Exs.A1 and A2 are the certified copies 4 MGP,J CMA_647_2013
of FIR and charge sheet. Ex.A3 is the copy of Medico-Legal Case with
opinion issued by the Gandhi Hospital and Ex.A4 is the original
disability certificate issued by P.W-2. On behalf of opposite party No.
2, no oral evidence was adduced, however, Ex.B1 certified copy of
insurance policy was marked.
Based on the pleadings of the parties, the learned
Commissioner framed the following issues:
1. Whether A. Amarender Reddy, was employed by the opposite party No.1 on 13.05.2003 (the date of accident) having been employed as a Cleaner?
2. whether the accident occurred during the course of his employment due to which the applicant has became permanent partial disabled?
3. What is the percentage of disability?
4. Whether the sum of Rs.3,00,000/- claimed by the applicant is due to him towards compensation? and;
5. Which of the opposite party liable to pay compensation to the applicant if any?
8. The learned Commissioner after considering the oral and
documentary evidence on record determined the wage of
applicant as Rs.2,158/- per month and by applying the relevant
factor '219.95' for the age of injured being 23 years and taking
into consideration the disability of the applicant @ 45%, has
awarded compensation of Rs.1,28,156/- together with stamp fee
of Rs.250/- and Advocate fee of Rs.1000/-, totaling
5 MGP,J CMA_647_2013
Rs.1,29,406/- (Rupees One lakh twenty nine thousand four
hundred and six only).
9. Aggrieved by the quantum of compensation awarded and
assailing the liability on insurer by the learned Commissioner,
the appellant/insurance company has filed the present Civil
Miscellaneous Appeal.
10. Heard Sri V. Sambasiva Rao, learned Standing Counsel
for the opposite party No.2 and Smt. P. Rajeswari, learned
counsel for respondent No.2 and perused the record including
the grounds of appeal.
11. The main contention of the learned Standing Counsel for
the opposite party No.2 is that the appellant herein has not
issued the insurance policy bearing No.050504/31/02/03032
in the name of opposite party No.1 i.e., G. Jitender Kumar
rather the insurance policy was issued is in the name of Mr. T.
Sambasiva Rao. It is further contended that the vehicle insured
neither stands in the name of opposite party No.1 i.e., G.
Jitender Kumar nor the alleged employer i.e., Mr. Damodar
Reddy. Further, the applicant himself admits in his cross
examination that he was working with one Sri Damodar Reddy,
who was nowhere concerned with the case, therefore there was 6 MGP,J CMA_647_2013
no employer-employee relationship between opposite party No.1
and applicant and in such case, when the essential yardstick of
employee-employer relationship is not proved by the applicant,
the question of awarding compensation doesn't arise. However,
without considering the above aspects, the learned
Commissioner erred in awarding compensation amount in
favour of respondent/applicant and thereby, the appellant/
insurance Company prayed to set-aside the impugned award
passed by the learned Commissioner and allow the appeal.
12. On the other hand, the learned counsel for
respondent/applicant contended that the learned Commissioner
after considering oral and documentary evidence on record
came to the right conclusion and recorded a finding that the
applicant was employed as a cleaner on the alleged lorry and
the employer and employee relationship is established by the
applicant, therefore, the award passed by the learned
commissioner does not warrant any interference by this Court
and prayed that appeal deserves to be dismissed at the
threshold.
13. A perusal of record, admittedly, the vehicle bearing
No.AP.28 U 2789 was insured with opposite party No.2 and
policy was in force as on the date of accident. Further, the 7 MGP,J CMA_647_2013
document under Ex.A-1 First Information Report shows that a
case was registered in Crime No. 89 of 2003 under Section 338
of Indian Penal Code against the driver and after thorough
investigation police laid charge sheet against the driver of the
crime vehicle. Therefore, there is no dispute as to manner of
accident and injuries (i.e., fracture of right femur, crush injury
of right foot) sustained by the applicant as per Ex.A3. It is also
pertinent to state that PW-2, orthopedic surgeon also supports
the evidence of A.W-1 regarding the injuries sustained by the
applicant and stated that he has operated the applicant twice
i.e., on 15.5.2003 and 21.05.2003 respectively and inserted
rods in the right leg and that two fingers of right foot were
amputated. After follow up treatment as in-patient applicant
was discharged from the hospital with an advice to use hand
stick and has also issued Ex.A-4 disability certificate assessing
the disability at 45%.
14. Now, coming to the fulcrum of the entire case on hand,
the fundamental question which comes for consideration before
this court is whether the applicant established employer-
employee relationship with opposite party No.1, who is the
owner of the lorry and does an insurance policy issued in favour
of a vehicle stands irrespective of owner of the vehicle or the 8 MGP,J CMA_647_2013
policy should only stand in the name of person, who is owner of
the vehicle?
15. In order to ascertain the above points for consideration, it
is relevant to state that on perusal of Ex. B-1 insurance policy,
the policy was issued in the name of Sri T Sambashiva Rao.
However, on perusal Ex.A-1 Copy of First Information Report
and Ex. A-2 Copy of Charge sheet the vehicle number is one and
the same as mentioned in the claim application. Thus, it is
established that insurance of the crime vehicle was in force on
date of accident. In this context, it is relevant to refer the
observation made by Honourable Apex Court in the case of
United India Insurance Company Ltd. v. Santro Devi 1 and in
the case of Babbu Miyan and another v. New India Assurance
Co. Ltd. and another, 2 wherein it was held as follows:
"the insurance policy runs with the vehicle irrespective of the person, who had taken the insurance policy, as, essentially, indemnification is with respect to the loss of property; that change of ownership of the vehicle does not change the nature of employment and that the deceased- workman was engaged as Driver with respect to the subject vehicle and as long as the vehicle is insured, the policy would govern the liability."
16. Therefore, in view of the above discussion and having
regard to the fact of the case, said issue is squarely covered by
the judgments referred to above. Thus, the insurance policy
1 (2009) 1 SCC 558 2 2017 ACJ 721 9 MGP,J CMA_647_2013
was issued in favour of the crime vehicle and mere transfer of
ownership or policy being in the name of some other person
doesn't disentitle or paralyses the rights of the applicant to
claim compensation against the insurer and as such the
insurance company cannot escape from its liability of
compensating the applicant.
17. It is also pertinent to note that the applicant in his cross
examination has admitted that though he was working under
Sri Damodar Reddy but, the claim application has been
instituted against Sri Jitender Kumar. However, he categorically
stated that both Sri Damodar Reddy and Sri Jitender Kumar are
partners in the same business entity. Therefore, the applicant
has shown the owner of the lorry i.e. Sri Jitender Kumar as
necessary party.
18. Thus, this court is of the considered opinion that the
applicant has categorically established the employer-employee
relationship and thus, the question of maintainability of a claim
application against opposite party No.1 and excluding i.e., Sri
Damodar Reddy, as a party to the claim application, who is the
employer of the applicant is not fatal to the case as the opposite
party No.1 and the employer are partners of the same business
entity and the nexus between both of them is proved from the 10 MGP,J CMA_647_2013
fact that the opposite party No.1 has authorized Sri Damodar
Reddy to file counter on his behalf as opposite party No. 1 in the
present case. Thus, in view of the same making owner of the
crime vehicle as party is sufficient to maintain the claim
application. Henceforth, the arguments advanced by
appellant/insurance Company are untenable.
19. In view of these facts and circumstances and considering the
principle laid down in the above said authority, I do not find any
substance in the appeal so as to disturb the reasoned order passed
by learned Commissioner awarding compensation in favour of
applicant. Hence, the appeal is devoid of merits and liable to be
dismissed.
20. 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: 22.01.2024 AS
