Telangana High Court
United India Insurance Co. Ltd. vs K. Sobha And 5 Others on 2 January, 2024
HON'BLE SMT.JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.573 of 2014
JUDGMENT:
1. Aggrieved by the order dated 28.03.2014 passed in
W.C.No.14 of 2013, on the file of the Commissioner for
Employees' Compensation and Assistant Commissioner of Labour,
Hyderabad (hereinafter be referred as 'the Commissioner'), the
opposite party No.2/Insurance Company filed the present Civil
Miscellaneous 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 deceased-K.Raju used
to work as Driver under the employment of Opposite party No.1
on his Lorry bearing No.AP 24T 0099. On 30.04.2013, when the
deceased was on duty as a driver on the said lorry and was
proceeding to Mallikarjuna Rice Mill, Bapujinagar, Miryalaguda,
in order to keep the lorry in the Rice Mill, he observed that the
main gate of the said Rice Mill was closed. As such, he stopped
the lorry in front of the gate of the said Rice Mill in neutral, got
down from the lorry and opened the main gate in order to keep 2 MGP,J CMA.573 of 2014
the lorry in the said Rice Mill. In the meanwhile, the lorry moved
ahead as there is a slope. When the deceased was boarding the
lorry, he was hit by the lorry and was crushed between the lorry
and pillar of the gate of the Rice mill and sustained severe head
injury and died on the spot. Based on the same, P.S.Miryalguda-I
Town of Nalgonda District registered a case in Crime No.97 of
2013 under Section 304-A IPC. The applicants contended that as
the deceased died during the course and out of employment with
opposite party No.1, they are entitled for compensation and hence
filed a claim petition seeking compensation of Rs.10,00,000/-
along with interest @ 12% per annum from the date of accident
till date of realization. The applicants stated that the deceased
was being paid wages of Rs.10,000/- per month by opposite party
No.1 and that he was aged about 28 years as on the date of
accident. They also contended that the said lorry was insured
with opposite party No.2 and the insurance policy was valid from
07.02.2013 to 06.02.2014. Therefore, the Insurance Company is
also liable to pay compensation.
4. Opposite party No.1 filed its counter stating that he is the
registered owner of the lorry bearing No.AP 24T 0099 and that he 3 MGP,J CMA.573 of 2014
had engaged the deceased-K.Raju as driver on the above said
lorry on payment of wages of Rs.8,000/- per month and batta of
Rs.100/- per day, admitted the occurrence and narration of the
accident, nature of death of the deceased who died during the
course and out of his employment, admitted that he has insured
his lorry with opposite party No.2. and the said insurance policy
is valid as on the date of accident covering the risk of the accident
and hence prayed to dismiss the claim made against him.
5. Opposite party No.2 denied the employment of the deceased
as driver on the said lorry, denied the relationship of the
applicants with the deceased, denied the occurrence and
narration of the accident, denied that the deceased died during
the course and out of employment, denied the employer-employee
relationship, denied the wage, age of the deceased, denied that
the deceased was holding a valid and effective driving license at
the time of accident and that the amount of compensation with
interest and costs claimed by the applicants is excessive and
exorbitant and hence prayed to dismiss the claim application
made against him.
4
MGP,J CMA.573 of 2014
6. In support of their case, the applicant No.1 was examined as
AW1. She filed an affidavit in lieu of her chief evidence wherein,
she reiterated the contents made in the claim application. She
also stated that all the applicants are totally dependant on the
earnings of her deceased husband. She also stated that her
husband is having a valid driving license at the time of accident,
but the same was misplaced at the time of accident and hence,
she could not file the driving license of her deceased husband.
She filed Exs.A1 to A5 documents on their behalf.
7. On behalf of opposite party No.1, RW1 was examined and
Exs.B1 to B5 were marked on his behalf. He admitted in his
cross-examination that he had seen the driving license of the
deceased at the time of his appointment as driver and that he
used to pay wages of Rs.8,000/- per month and Rs.100/- per day
and that the vehicle was insured with opposite party No.2 as on
the date of accident and that the accident occurred during the
course and out of employment.
8. On behalf of opposite party No.2, RW2, who is working as
Administrative Officer, was examined and Exs.B6 to B10
documents were marked through him.
5
MGP,J CMA.573 of 2014
9. The learned Commissioner, after considering the entire
evidence and documents marked on both sides, awarded
compensation of Rs.7,23,264/- together with interest at 12% per
annum which is payable by both the opposite parties from
31.05.2013 till the date of realization.
10. Aggrieved by the same, the present Appeal is filed by
opposite party No.2-Insurance Company.
11. Heard both sides.
12. The main contention of the learned counsel for the
appellant-Insurance Company is that the Commissioner erred in
awarding compensation to the applicants without considering the
evidence of the appellant-Insurance Company. The learned
Commissioner also failed to consider that since the deceased does
not have any driving license, there is no liability on part of
opposite party No.2 to pay compensation to the applicants. In
support of his contentions, learned counsel for the appellant-
Insurance Company relied upon the following decisions reported 6 MGP,J CMA.573 of 2014
in (i) Beli Ram v. Rajinder Kumar and Anr. 1 and (ii) Chhotekhan Vs.
Rajeshkumar Agrawal 2.
13. It is pertinent to state that in the above two decisions, the
deceased endangered his life by inviting unnecessary adventure
without possessing valid driving license. But, here, in the present
case, the deceased possessed a valid driving license but the same
was got misplace at the time of accident as per the evidence of
RW1-Owner of the lorry and also the evidence of AW1. Hence, the
above citations are not applicable to the present case.
14. Learned counsel for the respondents/applicants contended
that the Commissioner, after taking into consideration the entire
evidence and documents marked on both sides, awarded
compensation for which the interference of this Court is
unwarranted.
15. Now the points for determination are as follows:
1. Whether the applicants are entitled for compensation?
2. Whether the opposite party Nos.1 & 2 are liable to pay the said compensation?
1
AIR 2020 SUPREME COURT 4453 2 M.A.No.995/1998, dated 06.01.1999 7 MGP,J CMA.573 of 2014
Point Nos.1 & 2:
16. This Court has perused the entire evidence and material
placed on record. The applicant No.1, who got examined herself
as A.W.1, reiterated the contents of the claim petition. She stated
that on 30.04.2013, when the deceased was on duty as a driver
on the subject lorry and was proceeding to Mallikarjuna Rice
Mill, Bapujinagar, Miryalaguda, in order to keep the lorry in the
Rice Mill, he observed that the main gate of the Rice Mill was
closed. As such, he stopped the lorry in front of the gate of the
said Rice Mill in neutral and got down from the lorry, opened the
main gate in order to keep the lorry in the said Rice Mill. In the
meanwhile, the lorry moved ahead as there is slope. When the
deceased was boarding the lorry, he was hit by the lorry and was
crushed between the lorry and pillar of the gate of the Rice mill
and sustained severe head injury and died on the spot. Based on
the same, P.S.Miryalguda-I Town of Nalgonda District registered a
case in Crime No.97 of 2013 under Section 304-A IPC.
17. The primary contention of respondent No.2 i.e., insurance
company is that there is no employee and employer relationship
between the petitioner and respondent No.2. Respondent No.1 8 MGP,J CMA.573 of 2014
filed his counter, wherein he clearly admitted that the petitioner
was employed with him. The evidence of the petitioner as P.W.1
and also the documents marked under Exs.A-4 & A-5, which are
copy of registration certificate and copy of insurance policy
respectively pertaining to the lorry which is involved in the
accident shows that the Respondent No.1 is the owner of the said
lorry and the deceased worked as driver under him. Hence, this
Court is of the considered opinion that the petitioner has
established his employment with respondent No.1.
18. The other contention made by the learned counsel for the
appellant is that the deceased is not holding valid Driving license.
RW1, who is the owner of the said lorry, stated in his cross-
examination that he had seen the driving license of the deceased
at the time of his appointment as driver . Moreover, AW1 during
her cross-examination, stated that the deceased is holding a valid
and effective driving license, but, due to her illiteracy she could
not give particulars of the driving license and further stated that
the driving license was lost at the place of accident.
19. It is pertinent to state that the Appellant/Insurance
Company has taken the plea that the deceased is not having 9 MGP,J CMA.573 of 2014
driving license, but did not take any steps to prove the same by
examining RTA authorities and further, there is nothing worthy to
disbelieve the version of the applicants as well as opposite party
No.1. Moreover, this is a fatal case and in fatal case, production
or possession of requisite driving license is not a valid ground for
the insurance company to deny compensation to the dependants
of the deceased workman, who lost their bread-winner. The
employment of the deceased workman as paid driver on the
insured lorry under employment of opposite party No.1, the death
of the deceased during the course and out of his employment in
the accident, there is a valid insurance policy as on the date of
accident and the risk of the deceased driver is covered by the
insurance policy shows that the owner of the vehicle as well as
the insurer of the vehicle are jointly and severally liable to pay
compensation to the dependants of the deceased workman.
20. As per the decision cited by the learned counsel for the
respondents in a case between IFFCO TOKIO GENERAL
INSURANCE CO.LTD. Vs.GEETA DEVI AND OTHERS 3, the Hon'ble
Supreme Court at Para 12 (iii) of the order held as follows:-
3
2023 Law Suit (SC) 1072 10 MGP,J CMA.573 of 2014
(iii) The breach of policy condition e.g. disqualification of the
driver or invalid driving license of the driver, as contained in
sub-section (2)(a)(ii) of Section 149, has to be proved to have
been committed by the insured for avoiding liability by the
insurer. Mere absence, fake or invalid driving license or
disqualification of the driver for driving at the relevant time, are
not in themselves defences available to the insurer against
either the insured or the third parties. To avoid its liability
towards the insured, the insurer has to prove that the insured
was guilty of negligence and failed to exercise reasonable care
in the matter of fulfilling the condition of the policy regarding
use of vehicles by a duly licensed driver or one who was not
disqualified to driver at the relevant time.
21. Learned counsel for the respondents also referred to a
decision reported UNITED INDIA INSURANCE COMPANY LIMITED
V/S. ANNAKUTTY, wherein the High Court of Kerala, at Para 3 of
the Judgment held as under:-
" It is an admitted case that the deceased workman was an employee of the insured and that the accident occurred while he was driving the jeep and the accident resulted in his death. It was on 28.03.2002. When the accident has resulted in the death of the workman, necessarily clause (b)(ii) of the proviso to 11 MGP,J CMA.573 of 2014
section 3(1) of the Act will have no application. Wilful disobedience of an order or rule expressly framed for the purpose of securing such safety like the insistence of a driving license will have bearing going by the said provision, only in respect of any injury not resulting in the death of the workman. Necessarily even if there was any contravention of the provisions of law, the compensation shall have to be paid by the employer wherever death occurs as a result of the accident. When there was a valid insurance policy that liability shall be on the insurer. Therefore, absence of driving license cannot be taken as a reason to deny the compensation, in cases like this where the accident resulted, admittedly in the death of the workman."
22. In view of the foregoing discussion, this Court is of the
considered opinion that the learned Commissioner has rightly
discussed all the aspects and awarded the compensation for which this
Court do not find any reason to interfere with the same. Hence, the
appeal is devoid of merits and is liable to be dismissed.
23. In the result, the Appeal is dismissed without costs.
24. Miscellaneous petitions pending, if any, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 02.01.2024 ysk
