Telangana High Court

Legal Officer, Hyderabad vs Boddu Narsimha, Nalgonda Dist And 6 ... on 23 January, 2024

THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

     CIVIL MISCELLANEOUS APPEAL No.880 OF 2014


JUDGMENT:

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

211 of 2011 passed by the Commissioner for Employees'

Compensation and Assistant Commissioner of

Labour-IV, Hyderabad, the opposite party No.3/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 No.1,

who is the husband of the deceased, along with his

children and mother, 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 his deceased wife -Sri Boddu Jayamma in an

accident that occurred on 14.06.2011, alleging that the

deceased was employed by the opposite party Nos. 1 & 2 as

labourer on the tractor and trailer bearing Nos. AP 24AK

3845 and AP 24 AK 3846, which was insured with opposite 2 MGP,J

party No.3. It is stated that on the fateful day, when the

deceased was proceeding as labourer on the said tractor

which was owned by opposite party Nos.1 & 2 to unload

the dung in the fields of opposite party No.2 and at about

4.30 PM, while the deceased was going on

Sangameshwaram tank bund, the tractor turned turtle. As

a result, the deceased came underneath the dung and

beneath the tractor and died on the spot due to suffocation

and the driver of the said tractor, Sri Jangaiah, also died

due to the injuries sustained in the said accident. Based

on the complaint, the Police, Valigonda Police Station,

registered a case in Crime No.93 of 2011. According to the

applicant, the deceased was aged 38 years and was earning

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

the employment of opposite party Nos.1 & 2 and used to

contribute for the welfare of the 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 parties who are jointly and severally liable to pay

compensation.

3 MGP,J

4. Before the Commissioner, the opposite party No.1

filed his counter and admitted the employment of the

deceased as labourer under him, admitted the accidental

death of the deceased and that the amount of

compensation claimed by the applicants is excess and

exorbitant and prayed to dismiss the claim against him.

Opposite party No.2 filed counter reiterating the same

averments made in the counter filed by opposite party

No.1. Opposite party No.3-Insurance Company, filed its

counter denying the averments of the application such as

employment of the deceased as labourer on the tractor and

trailer bearing Nos.AP 24AK 3845 and AP 24AK 3846,

denied the occurrence of accident, denied the narration of

the accident, denied that the deceased was a workman,

denied that the deceased died during the course of her

employment, denied the wage, batta and age of the

deceased as claimed by the applicant, denied that the said

tractor and trailer was insured with opposite party No.3,

denied that the said tractor and trailer are roadworthy to

ply and that the tractor was having a valid permit, fitness

certificate and RC at the time of accident and denied that 4 MGP,J

the driver of the said tractor and trailer was holding a valid

and effective driving license at the time of accident and

hence, the Insurance Company is not liable to pay the

compensation. He also contended that the compensation

claimed is excess and exorbitant and hence, prayed to

dismiss the application.

5. The applicant No.1 was examined himself as AW1

and filed affidavit in lieu of chief examination reiterating

the averments made in the claim application. In support of

his claim, he got marked Exs.A1 to A5. 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 post mortem report. Ex.A4 is the copy of

action abated memo and Ex.A5 is the copy of insurance

policy. Nothing worthy was elicited by opposite party No.3

during the cross-examination of the said witness.

6. On behalf of opposite party Nos.1 & 2, none of the

witnesses were examined. On behalf of opposite party

No.3, RW1 was examined and Ex.B1-True copy of

insurance policy, Ex.B2- office copy of legal notice dated 5 MGP,J

16.07.2013 and Ex.B3- Copy of postal receipt, were

marked.

7. The Commissioner after considering the evidence on

record, both oral and documentary, by determining the

wages of deceased as Rs.4393.25 paise per month and by

applying the relevant factor, has awarded compensation of

Rs.4,18,724/- along with interest @ 12% per annum from

15.07.2011 till the date of realization.

8. Aggrieved by the compensation awarded by the

Commissioner, the opposite party No.3/Insurance

Company has filed the present appeal to set aside the

impugned order.

9. Heard both sides and perused the record.

10. Learned Standing Counsel for the appellant/

Insurance Company contended that there is no insurance

coverage to the labourer on the said tractor and trailer. He

further contended that there was no employee-employer

relationship as the deceased was daughter in law of

opposite party No.1.

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11. On the other hand, learned counsel for Respondent

Nos.1 to 5/applicants 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.

12. The applicant No.1, who is the husband of the

deceased, was examined as AW1 and had reiterated the

averments made in the claim application. He stated that

the deceased was employed as labourer under opposite

party Nos.1 & 2 on payment of wages of Rs.8,000/- per

month and Batta of Rs.100/- per day. He admitted that

the deceased died on 14.06.2011 while performing her

duties as labour on the said tractor. Though AW1 was

cross examined at length, nothing was elicited to discredit

her statement. On behalf of opposite party No.3, 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 7 MGP,J

policy was in force as on the date of accident. He also

accepted that the deceased worked as labourer in the

subject vehicle at the time of accident. He said that he do

not know whether the 1st and 2nd opposite parties are

partners of the tractor and trailer bearing Nos.AP 24AK

3845 and AP 24AK 3846.

13. With regard to the employee-employer relationship

between the deceased and opposite party No.1, 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 Ex.A3-final report filed by police establishes that

the deceased worked as a labourer on the said tractor and

trailer for loading ad unloading manure on 14.06.2011 and

she met with an accident and died on the spot due to the

injuries sustained by her. No evidence either oral or

documentary was produced by the opposite party No.3-

Insurance company to disbelieve the said version. Even

assuming for a moment that the deceased was daughter-

in-law of opposite party No.1, there is no law that relatives 8 MGP,J

can't be in employee-employer relationship. At 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

AIR 2014 Supreme Court 893 9 MGP,J

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 10 MGP,J

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."

14. 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-in-law 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.3/Insurance Company is not based on a

question of law but it is purely a question of fact, which 11 MGP,J

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

Workmen's Compensation Act. Hence, the above said