Legal Officer , Icici Lombard General ... vs Boddu Jayamma

Telangana High Court

Legal Officer , Icici Lombard General ... vs Boddu Jayamma on 23 January, 2024

THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

     CIVIL MISCELLANEOUS APPEAL No.1096 OF 2014


JUDGMENT:

1. Aggrieved by the order dated 30.05.2014 in W.C.No.

212 of 2011 passed by the Commissioner for Employees'

Compensation and Assistant Commissioner of

Labour-IV, Hyderabad, the opposite party No.4/Insurance

Company has filed the present 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 applicant had

filed a claim application under the provisions of Employees'

Compensation Act, 1923 (for short 'the Act') claiming

compensation of Rs.8,00,000/- for the death of her

deceased husband -Sri Boddu Jangaiah in an accident

that occurred on 14.06.2011, alleging that the deceased

was employed by the opposite party Nos. 1 & 3 as driver on

tractor and trailer bearing Nos. AP 24AK 3845 and AP 24

AK 3846, which was insured with opposite party No.4. It is

stated that on the fateful day, when the deceased was MGP,J 2 CMA-1096 of 2014

proceeding as driver on the said tractor to attend

agricultural lands of opposite party No.3 and that the

tractor was transporting dung, at about 4.30 PM, while the

deceased was going on Sangameshwaram tank bund, the

tractor turned turtle. As a result, the deceased was

crushed beneath the tractor engine and one labourer, who

was employed on the trolley to unload the dung, was also

injured and died after struggling for life. Based on a

complaint, the Police, Valigonda Police Station, registered a

case in Crime No.93 of 2011. According to the applicant,

the deceased was aged 36 years and was earning

Rs.8,000/- per month and Batta of Rs.100/- per day as a

driver under the employment of opposite party No. 1 and

used to contribute for welfare of their family. Due to the

accident, they lost their source of income and love and

affection. Hence, the applicants have filed the application

claiming compensation of Rs.8,00,000/- against the

opposite party Nos. 1, 3 & 4 who are jointly and severally

liable to pay the compensation.

4. Before the Commissioner, the opposite party Nos.1, 3

& 4 filed their counters, but the opposite party No.2 did not MGP,J 3 CMA-1096 of 2014

appear before the Commissioner and had not participated

in the proceedings. Hence he was set exparte.

5. Opposite party No.1 filed its counter stating that the

deceased died during the course and out of his

employment as driver on the said tractor and was paid

wages @ Rs.270/- per day by the 1st and 3rd opposite

parties. He further stated that as the subject tractor and

trailer was insured with opposite party No. 4, opposite

party No.4 is liable to pay the compensation and prayed to

dismiss the application against him. Opposite party No.3

reiterated the averments made by opposite party No.1 in

the counter.

6. On the other hand, opposite party No.4-Insurance

Company, filed its counter denying the averments of the

claim application including, age, wages, employment of the

deceased as driver on the tractor and trailer bearing

Nos.AP 24AK 3845 and AP 24AK 3846, occurrence of

accident, narration of the accident, wage, batta and age of

the deceased and also denied that the said tractor and

trailer was insured with opposite party No.4 and had a MGP,J 4 CMA-1096 of 2014

valid permit, and RC stated that the driver of the said

tractor and trailer was not holding a valid and effective

driving license at the time of accident and hence, the

Insurance company is not liable to pay any compensation

and that the claim made is excess and exorbitant and

hence prayed to dismiss the claim against them.

7. The applicant herself was examined as AW1 and filed

affidavit in lieu of chief examination reiterating the

averments made in the claim application. In support of her

claim, she got marked Exs.A1 to A4. Ex.A.1 is the copy of

FIR. Ex.A.2 is the certified copy of inquest report. Ex.A3 is

the copy of the final report and Ex.A4 is the copy of

insurance cover note. Nothing worthy was elicited by

opposite party No.4 during the cross-examination of PW1.

8. On behalf of opposite party Nos.1 & 3, none of the

witnesses were examined. On behalf of opposite party

No.4, RW1 was examined and Ex.B1-True copy of

insurance policy, Ex.B2- office copy of legal notice dated

16.07.2013 and Ex.B3- Copy of Registration Certificate

were marked.

MGP,J 5 CMA-1096 of 2014

9. The Commissioner after considering the evidence on

record, both oral and documentary, by determining the

wages of deceased as Rs.5183.25 paise per month and by

applying the relevant factor of '194.64', has awarded

compensation of Rs.5,06,942/- along with interest @ 12%

per annum from 15.07.2011 till the date of realization.

10. Aggrieved by the compensation awarded by the

Commissioner, the opposite party No.2/Insurance

Company has filed the present appeal to set aside the

impugned order.

11. Heard both sides and perused the record.

12. The contention of the learned counsel for the

appellant/Insurance Company is that the deceased is the

son of Respondent Nos.2 & 3. Therefore, there is no

employee-employer relationship between the deceased and

opposite party No.1 and the deceased did not die during

the course of employment. But, without considering the

same, the learned Tribunal has awarded compensation.

Moreover the Insurance policy is only for agricultural

purpose and not for commercial purpose.

MGP,J 6 CMA-1096 of 2014

13. On the other hand, learned counsel for Respondent

No.1 sought to sustain the impugned order of the

Commissioner contending that considering all aspects,

including the age and avocation of the deceased, the

Commissioner has awarded reasonable compensation and

the same needs no interference by this Court.

14. The applicant No.1, who was the wife of the deceased,

was examined as AW1 and had reiterated the averments

made in the claim application. She stated that the

deceased was invited by opposite party Nos.1 & 3 to work

as driver on the said tractor on payment of wages of

Rs.8,000/- per month and Batta of Rs.100/- per day. She

admitted that the deceased died on 14.06.2011 while

performing his duties as driver on the said tractor. Though

AW1 was cross examined at length, nothing was elicited to

discredit her statement. On behalf of opposite party No.4,

the Legal Manager of their Company was examined as

RW1. RW1 in his chief examination, deposed that the said

tractor was insured vide policy bearing No.

3008/61870153/00/000. In the cross-examination, he

accepted that the insurance policy was in force as on the MGP,J 7 CMA-1096 of 2014

date of accident. He also accepted that the deceased was

the driver of the subject vehicle at the time of accident. He

said that he do not know whether the 1st and 3rd opposite

parties are partners of the tractor and trailer bearing

Nos.AP 24AK 3845 and AP 24AK 3846.

15. Though the learned counsel for the appellant had

taken a plea that the driver is not having valid and effective

driving license as on the date of accident, they failed to

adduce any evidence by summoning RTA authorities and

therefore, the contention of the learned counsel for the

appellant so far as the driver not having valid and effective

driving license is unsustainable.

16. With regard to the employee-employer relationship

between the deceased and the opposite party Nos.1 & 2,

learned Standing Counsel for the Insurance Company

contended that there is no employee-employer relationship

between the deceased and opposite party No.1. It is

pertinent to state that RW.1, during the course of his

cross-examination, admitted that the deceased worked as a

driver on the tractor and trailer at the time of accident. At MGP,J 8 CMA-1096 of 2014

this juncture, reliance is placed on the decision of the Apex

Court in Smt.T.S.Shylaja v. Oriental Insurance

Company and Another 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 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 1 AIR 2014 Supreme Court 893 MGP,J 9 CMA-1096 of 2014

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 MGP,J 10 CMA-1096 of 2014

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 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."

17. A plain reading of principle laid down in the above

said citation clearly indicates that merely the deceased

being employed as workmen/driver under the employment

of opposite party No. 1, owner/employer, who is happened

to be the father of the deceased, the Insurance Company

was not bound to make contention that there is no

employee-employer relationship between the deceased and

opposite party No. 1. The said contention of the opposite

party No.4/Insurance Company is not based on a question

of law but it is purely a question of fact, which cannot be MGP,J 11 CMA-1096 of 2014

raised before this Court as per Section 30 of the

Workmen's Compensation Act. Hence, the above said