Telangana High Court
United India Insurance Co Ltd., ... vs Haseea Bee, Medak Dist And 3 Others on 24 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.890 of 2016
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed
against order dated 20.07.2016 in W.C.No.46 of 2015 on the file of
the Commissioner for Employees' Compensation and Assistant
Commissioner of Labour-II (FAC), Hyderabad (hereinafter referred
to as 'the Commissioner'). The said claim application was filed by
respondent Nos.1 to 3 herein seeking compensation for death of
one Sayyed Ayub (hereinafter referred to as 'deceased') in an
accident that occurred on 02.03.2015 and the same was partly
allowed by the Commissioner granting compensation of
Rs.7,08,012/-. 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
Nos.1 to 3 herein are applicants and respondent No.4 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.
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3. The brief facts of the case of the applicants are that
applicant No.1 is wife, applicant No.2 is daughter and applicant
No.3 is mother of the deceased. The deceased was working as
driver on vehicle bearing No.AP 23 TC 252 under the employment
of opposite party No.1. The deceased used to collect vehicles in
the company of opposite party No.1 and drop the same at various
showrooms of Mahindra Company Manufactured vehicles
belonging to opposite party No.1. While so, on 02.03.2015, in the
evening hours, the deceased took vehicle bearing No.AP 23 TC 252
and went to his home at Ranjole in order to have dinner. After
having dinner, the deceased was proceeding on the said vehicle to
Bidar to deliver the said vehicle. On the way, at about 20:30
hours, when he reached the outskirts of Ranjole village, near
Allipur Khana on National Highway No.65 road, one lorry bearing
No.AP 16 TY 0642 being driven in rash and negligent manner
came in the opposite direction and dashed the vehicle of the
deceased. As a result, accident occurred, the deceased sustained
grievous injuries particularly on head, due to which he died on the
spot. In this regard, a case was registered in Crime No.23 of 2015
on the file of Police Station Zaheerabad.
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4. It is the further case of the applicants that the deceased died
during the course and out of his employment under opposite party
No.1 as driver. He was aged about 27 years as on the date of the
accident and he was being paid an amount of Rs.10,000/- per
month towards wages and Rs.200/- per day towards batha. The
vehicle involved in the accident was owned by opposite party No.1
and insured with opposite party No.2 with valid and effective
insurance policy as on the date of the accident. Hence, the
applicants filed the present claim application seeking
compensation of Rs.15,00,000/-.
5. Opposite party No.1 filed its counter denying the averments
of the claim application. It is the case of opposite party No.1 that
they have outsourced their logistics activity of transporting
vehicles manufactured by them to various places, through
Mahindra Logistics Limited, which is subsidiary to opposite party
No.1, through agreement for outbound transportation dated
10.07.2014. As per the said agreement, the Mahindra Logistics
Limited was having sole discretion for appointment of the
transporters and opposite party was not at all responsible for
transportation of its vehicles. The Mahindra Logistics Limited
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used to make agreements with various transporters and one of
such transporter is Narayan Auto Works. The said agreement
pertaining to Narayan Auto Works was pending from financial year
2012 onwards. It is the case of opposite party No.1 that there was
an agreement in between the Mahindra Logistics Limited and said
Narayan Auto Works to transport vehicles to various destinations
as instructed by opposite party No.1. On the said lines, the
deceased was appointed as driver on the vehicle involved in the
accident by said Narayan Auto Works. In the said circumstances,
opposite party No.1 was not aware of appointment of the deceased
as driver of vehicle involved in the accident, occurrence of the
accident and death of the deceased in the said accident.
6. It is also stated by opposite party No.1 in the counter that
the deceased was employed as driver on vehicle involved in the
accident through its Sub-contractor Mahindra Logistics Limited,
who in turn took the services of Narayan Auto Works Limited, for
hiring the deceased as driver, who used to collect vehicles and
drop at various showrooms of Mahindra Company. Hence, the
deceased was not employed under opposite party No.1.
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7. Furthermore, as per opposite party No.1, the applicants
ought to have made the owner of lorry bearing No.AP 16 TY 0642
and its insurance company as parties to the present claim
application, as the accident occurred due to the rash and
negligent manner of the driver of the said lorry. It is also stated
that the vehicle bearing No.AP 23 TC 252, which is owned by
opposite party No.1 was insured with opposite party No.2 with
valid and effective insurance policy as on the date of the accident.
As such, if there is any liability, then opposite party No.2 alone is
liable to pay compensation to the applicants. Hence, prayed to
dismiss the claim application against them.
8. Opposite party No.2 filed its counter denying the averments
of the claim application such as employment, age, wages, manner
of the accident and death of the deceased in the accident that
occurred on 02.03.2015. Opposite party No.2 also denied that the
deceased was having valid driving license. It is also stated that
the claim application is not maintainable as the applicants have
not made parties the owner and insurer of lorry bearing No.AP 16
TY 0642, which was involved in the accident along with the vehicle
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of the deceased. Hence, prayed to dismiss the claim application
against them.
9. In support of their case, the applicants got examined A.W.1
and got marked Exs.A-1 to A-8. Opposite party No.1 got examined
R.W.1 and Exs.B-1 to B-6 were got marked. Opposite party No.2
got examined R.W.2 and Ex.B-7 was marked.
10. On the basis of the above pleadings and evidence, the
Commissioner framed the following issues:
"1. Whether the deceased met with an accident on 02.03.2015
and died due to the injuries sustained in the accident during
the course and out of his employment as a driver on the vehicle
bearing No.AP 23 TC 252 under the employment of O.P.1?
2. If yes, who are liable to pay compensation?
3. What is the amount of compensation entitled by applicants?"
11. After considering the evidence and documents filed by both
sides, the Commissioner awarded an amount of Rs.7,08,012/-
towards compensation to the applicants. Aggrieved by the same,
the present appeal is filed by opposite party No.2.
12. Heard both sides.
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13. Learned counsel for the appellant/opposite party No.2
contended that though, the applicants failed to establish employee
and employer relationship between the deceased and opposite
party No.1, the Commissioner without considering the evidence on
record has granted compensation. It is also contended that the
compensation and interest thereon granted by the Commissioner
is on higher side. Hence, prayed to set aside the impugned order
by allowing the present appeal.
14. Per contra, the learned counsel for the respondent Nos.1 to
3/applicants contended that the Commissioner after considering
all the aspects has awarded reasonable compensation and
interference of this Court is unnecessary.
15. Now, the point for determination is as follows:
"Whether the applicants are entitled for the
compensation as granted by the Commissioner?"
Point:-
16. This Court has perused the entire evidence and documents
placed on record by both the parties. Applicant No.1 was
examined as A.W.1 and she reiterated the contents of the claim
application. She got marked Exs.A-1 to A-8 in support of her
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case. She also deposed that opposite party No.1 paid some
amount towards funeral expenses of the deceased. In the cross-
examination by opposite party No.1, A.W.1 denied the suggestions
made by opposite party No.1 and deposed that she did not know
about the agreements between opposite party No.1, Mahindra
Logistics Limited and Narayana Auto Works. In the cross-
examination by opposite party No.2, A.W.2 deposed that she was
not eye-witness to the accident and she categorically denied the
suggestions made by opposite party No.2.
17. On behalf of opposite party No.1, its Assistant Manager was
examined as R.W.1. He reiterated the contents of counter filed by
opposite party No.1 and got marked Exs.B-1 to B-6, in support of
their case. In the cross-examination by the applicants, R.W.1
accepted the occurrence of the accident, involvement of vehicle
owned by opposite party No.1 and also death of the deceased, who
was working as driver. He also accepted that the vehicle involved
in the accident was having valid insurance policy under Ex.A-6/
B-3 and the deceased being driver was covered under the said
policy. He accepted that the deceased was working for the work of
opposite party No.1 and that Mahindra Logistics Limited was
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managing agent of opposite party No.1 and Narayana Auto Works
was managing agent of Mahindra Logistics Limited. He denied the
liability of opposite party No.1 and also denied that the deceased
died during the course and out of his employment with opposite
party No.1. He also stated that the vehicle was damaged in the
accident and opposite party No.1 claimed damages from opposite
party No.2 showing the deceased as its driver. In the cross-
examination by opposite party No.2, R.W.1 stated that there was
no employee and employer relationship between the deceased and
opposite party No.1 and that opposite party No.1 has not engaged
the deceased as driver on the vehicle involved in the accident. He
also stated that opposite party No.1 is not liable for acts done by
Narayana Auto works. He denied that the deceased was not
covered under the policy issued by opposite party No.2 and that
opposite party No.1 never made any application for settlement of
damages and that opposite party No.2 never paid any amount.
18. Opposite party No.2 got examined its Assistant Manager as
R.W.2, he reiterated the contents of the counter filed by opposite
party No.2 and stated that the insurance policy was issued
subject to conditions. He deposed that as per the counter filed by
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opposite party No.1 as on the date of the accident, the deceased
was not working under opposite party No.1. He also stated that
opposite party No.1 has given sub-contract to Mahindra Logistics
Limited and they in turn gave sub-contract to Narayan Auto
Works Limited for shifting of new vehicles from opposite party
No.1 to various showrooms of opposite party No.1. It is stated
that the policy was issued in the name of opposite party No.1,
whereas the deceased was working under Narayana Auto Works
Limited. Hence, there was no employee and employer relationship
between the deceased and opposite party No.1. Therefore, prayed
to dismiss the appeal against opposite party No.2. In the cross-
examination by the counsel for applicants, R.W.2 admitted that he
was deposing as per record and as per record there was an
accident and the deceased died in the said accident while driving
the vehicle owned by opposite party No.1 bearing No.AP 23 TC
252. He also accepted that the deceased was working as driver on
vehicle bearing No.AP 23 TC 252. He admitted that the risk of the
driver is covered under the policy issued by opposite party No.2.
However, he denied that the deceased was working as a driver on
the said vehicle under employment of opposite party No.1. He
accepted that even though the deceased was employed through
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Narayan Auto Works, he was working as driver on the vehicle
bearing No.AP 23 TC 252, which is owned by opposite party No.1.
He also admitted that policy under Ex.A-6/B-7 was taken by
opposite party No.2 for the above said vehicle on which the
deceased was working as driver.
19. It is pertinent to state that Ex.A-1 First Information Report
in Crime No.23 of 2015 along with complaint, Ex.A-2 inquest
panchanama, Ex.A-3 postmortem report and Ex.A-4 charge sheet
clearly disclose that on 02.03.2015, the deceased was on duty as
driver on vehicle bearing No.AP 23 TC 252, which is owned by
opposite party No.1 and insured with opposite party No.2 and
during the course and out of his employment, the accident
occurred and he died in the said accident. The said accident
occurred when a lorry bearing No.AP 16 TY 0642 dashed the
vehicle driven by the deceased, due to which the deceased
sustained injuries and died on the spot. Hence, there is no
dispute with regard to occurrence of the accident and death of the
deceased.
20. The only dispute in the present case is with regard to
employment of the deceased under opposite party No.1. Learned
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counsel for respondent Nos.1 to 3/applicants contended deceased
was employed under opposite party No.1 as driver and he used to
collect vehicles from opposite party No.1 and drop the same at
various showrooms of Mahindra Company Manufactured vehicles
belonging to opposite party No.1. While so, on 02.03.2015, the
deceased was delivering vehicle bearing No.AP 23 TC 252 and
during the course of delivery, one lorry bearing No.AP 16 TY 0642
came in opposite direction at the outskirts of Ranjole village, near
Allipur Khana on National Highway 65 and dashed the vehicle of
the deceased. Due to the said accident, the deceased sustained
injuries and died on the spot.
21. It is the case of opposite party No.1 that it has entered into
an agreement for outbound transportation dated 10.07.2014 with
Mahindra Logistics Limited, for transportation of vehicles
manufactured by opposite party No.1 to various showrooms and
the said company in turn entered into agreement with Narayan
Auto Works, for hiring drivers and transportation of the vehicles.
The deceased was one such driver and opposite party No.1 has not
at all hired the deceased to work as driver on vehicle bearing
No.AP 23 TC 252. Hence, they are not liable to pay any
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compensation for the death of the deceased. It is also contended
that the said vehicle was insured with opposite party No.2 through
valid insurance policy as such they are bound to indemnify the
liability of opposite party No.1.
22. On the other hand, it is the case of opposite party No.2 that
the deceased was not working under opposite party No.2 as on the
date of the accident, as such they are not liable to pay
compensation for his death. Learned counsel for the
appellant/opposite party No.2 contended that the policy was
issued to cover the risk of vehicle owned by opposite party No.1,
but the deceased was not employee of opposite party No.1 and he
was employed under Narayan Auto Works. Hence, opposite party
No.2 is not liable to pay compensation.
23. It is pertinent to state that the vehicle bearing No.AP 23 TC
252 was owned by opposite party No.1 and insured with opposite
party No.2. It is evident from the record that as on the date of the
accident, the deceased was working to transport the vehicles
owned by opposite party No.1 and on the date of the accident, he
was driving vehicle bearing No.AP 23 TC 252, to deliver the same.
The deceased was working in the capacity of driver of the said
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vehicle on the date of the accident. Opposite party No.1 engaged
the services of Mahindra Logistics Limited, to transport the vehicle
owned by them and Mahindra Logistics Limited, in turn entered
into agreement with Narayan Auto Works, for transportation of the
vehicles. Hence, it can be clearly said that the deceased was
indirectly working for the work of opposite party No.1. The
deceased died during the course and out of his employment while
delivering the vehicle owned by opposite party No.1, which was
insured with opposite party No.2. The evidence of A.W.1 and
R.W.1 also clearly establishes about the relationship and
connection between opposite party No.1, Mahindra Logistics
Limited, Narayan Auto Works and the deceased. It is clear that
the Mahindra Logistics Limited and Narayan Auto Works were
agents and opposite party No.1 was their principal and all of them
were working for transportation of vehicles manufactured and
owned by opposite party No.1. Hence, considering all these
aspects the Commissioner has rightly held that opposite party
No.1 is principal employer of the deceased as such the deceased
was employed under opposite party No.1 as he was engaged in
driving the vehicle bearing No.AP 23 TC 252 and while discharging
his duties, he died in an accident.
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24. Once, the occurrence of the accident, death of the deceased
during the course and out of employment and employee and
employer relationship are established, the insurance company is
liable to indemnify opposite party No.1 and pay compensation to
the applicants. There is no dispute with regard to existence of
valid policy as on the date of the accident pertaining to the vehicle
involved in the accident. It is also admitted that the risk of the
driver is covered under the said policy. In the said circumstances,
the Commissioner has held that opposite party No.2 being insurer
is bound to indemnify the liability of opposite party No.1.
Therefore, the Commissioner held that opposite party No.1 being
principal employer, owner of the vehicle involved in the accident
and opposite party No.2 being insurer are jointly and severally
held liable to pay compensation. This Court does not find any
reason to interfere into the said findings.
25. 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 North East Karnataka Road
Transport Corporation v. Sujatha 1 held as under:
1 (2019) 11 SCC 514
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"9. At the outset, we may take note of the fact, being a settled
principle, that the question as to whether the employee met
with an accident, whether the accident occurred during the
course of employment, whether it arose out of an employment,
how and in what manner the accident occurred, who was
negligent in causing the accident, whether there existed any
relationship of employee and employer, what was the age and
monthly salary of the employee, how many are the dependents
of the deceased employee, the extent of disability caused to the
employee due to injuries suffered in an accident, whether there
was any insurance coverage obtained by the employer to cover
the incident etc. are some of the material issues which arise for
the just decision of the Commissioner in a claim petition when
an employee suffers any bodily injury or dies during the course
of his employment and he/his LRs sue(s) his employer to claim
compensation under the Act.
10. The aforementioned questions are essentially the questions
of fact and therefore, they are required to be proved with the
aid of evidence. Once they are proved either way, the findings
recorded thereon are regarded as the findings of fact.
11. The appeal provided under Section 30 of the Act to the
High Court against the order of the Commissioner lies only
against the specific orders set out in clauses (a) to (e) of Section
30 of the Act with a further rider contained in the first proviso
to the section that the appeal must involve substantial
questions of law.
12. In other words, the appeal provided under Section 30 of the
Act to the High Court against the order of the Commissioner is
not like a regular first appeal akin to Section 96 of the Code of
Civil Procedure, 1908 which can be heard both on facts and
law. The appellate jurisdiction of the High Court to decide the
appeal is confined only to examine the substantial questions of
law arising in the case."
26. Even in Golla Rajanna v. The Divisional Manager 2 the
Hon'ble Supreme Court held under the scheme of the Act that the
Workmen's Compensation Commissioner is the last authority on
facts. In view of the principle laid down in the above decisions,
2 2017 (2) ALD 14 (SC)
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since the contentions raised by the learned counsel for opposite
party No.2/insurance company 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 illegality
committed by the Commissioner while passing the impugned
order. Moreover, when two interpretations are possible, the
interpretation, which is favourable to the applicants, shall be
taken into consideration, since the Workmen's Compensation Act,
1923, is a beneficial legislation enacted to protect the interest of
employees. Hence, this Court is of the considered opinion that the
contention of the learned counsel for the appellant/opposite party
No.2 that there is no employee and employer relationship between
the deceased and opposite party No.1 is unsustainable.
27. Coming to the quantum of compensation, the Commissioner
as there was no proper evidence with regard to salary of the
deceased has considered minimum wages and fixed the wages of
the deceased at Rs.6,658.50/- per month. Further, the
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Commissioner based on the driving license of the deceased under
Ex.A-7 has determined the age of the deceased as 28 years, while
calculating compensation. The Commissioner in all granted an
amount of Rs.7,08,012/- along with interest at 12 % per annum
from 03.04.2015 till the date of realization. This Court is of the
considered opinion that the said amount is just and reasonable
and interference of this Court is unwarranted. The appeal is
devoid of merits and the same is liable to be dismissed.
28. In the result, the Civil Miscellaneous Appeal is dismissed
confirming the order dated 20.07.2016 in W.C.No.46 of 2015 on
the file of the Commissioner for Employees' Compensation and
Assistant Commissioner of Labour-II (FAC), Hyderabad. There
shall be no order as to costs. Miscellaneous applications, if any
pending, shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Date: 24.01.2024
GVR
