Telangana High Court
Hdfc Ergo General Insurance Co.Ltd., vs Smt.Halima Begum on 21 June, 2024
HONOURABLE SMT.JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.131 of 2016
JUDGMENT:
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1. Aggrieved by the order dated 08.12.2015 passed in
W.C.No.124 of 2014, on the file of the learned Commissioner for
Employee's Compensation and Assistant Commissioner of Labour-
IV, Hyderabad (for short, 'the Commissioner'), the opposite party
No.2/Insurance Company filed the present Appeal seeking to allow
the appeal by setting aside the order of the learned Commissioner.
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 applicants, who are
the wife and father of the deceased-Sri Mohd.Khasim filed a claim
application under the provisions of Workmen's Compensation Act,
1923 (for short, 'the Act') claiming compensation of Rs.5,00,000/-
along with costs for the death of the deceased in an accident that
occurred on 21.05.2012. It is stated by the applicants that the
deceased used to work as 'Driver' under the employment of
opposite party No.1 on his TATA Ace Auto Bearing No.AP-29V-3510
and died due to the injuries sustained in an accident that occurred
on 21.05.2012. As stated by the applicants, on 21.05.2012, the
deceased was on duty as a Driver on the subject TATA Ace Auto
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along with one Sri I.Nageswara Rao,who is labourer on the vehicle
of Gona Creamline Ice-Cream Factory and proceeded from Medchal
to go to IDA Uppal and when the said vehicle passed through
Alugaddabavi bridge near S & T Workshop, the deceased dashed
the said vehicle against one unknown stationed lorry which
resulted in an accident. In the said accident, the deceased
sustained serious injuries and was stuck in the Auto and Police
came and removed the deceased and sent to Gandhi Hospital,
Secunderabad for treatment and on the same day, at about
6.15AM, the deceased died while undergoing treatment. Police of
Lalaguda Police Station registered a case in Crime No.60 of 2012
under Section 337 and 304A IPC. The applicants stated that the
deceased was aged about 26 years and was being paid wages of
Rs.6,000/- per month by opposite party No.1 and they were totally
dependent on the earnings of the deceased and due to his death,
they are finding very difficult to eke out their livelihood and hence,
filed claim application seeking compensation of Rs.5,00,000/-
payable by both the opposite party Nos.1 & 2 as the deceased died
during the course of his employment under opposite party No.1 as
a driver on the said TATA Ace Auto which was insured with
opposite party No.2.
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4. Opposite party No.1, who is the owner of the subject TATA
Ace Auto, filed his counter admitting the employment of the
deceased as a Driver on the said Auto including, occurrence and
narration of the accident, death of the deceased due to the injuries
sustained to him in the accident, wages paid to him and contended
that as the subject Auto was insured with opposite party No.2 vide
policy bearing No.231520022754740000 for the period from
15.03.2012 to 14.03.2013 and the said policy was subsisting as on
the date of accident, hence, opposite party No.2/Insurance
company alone is liable to pay compensation to the applicants and
prayed to dismiss the claim against it.
5. Opposite party No.2/Insurance Company filed its counter
denying the averments made in the claim application including,
age, wages paid to the deceased, employment of the deceased as
Driver on the subject TATA Ace Auto, occurrence and narration of
the incident, employee-employer relationship, deceased having
valid driving license at the time of alleged accident, subject Auto
was roadworthy to ply. It also contended that opposite party No.1
did not inform about the accident which is the preliminary
obligation to perform by it and also contended that the amount of
compensation is excess and exorbitant and hence, prayed to
dismiss the claim against it.
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6. Based on the above pleadings, the learned Commissioner
had framed the following issues:-
(i) Whether the deceased died due to the injuries
sustained in the accident on 21.05.2012 during
the course and out of his employment as a driver
on the TATA Ace Auto Bearing No.AP-29V-3510
under the employment of the 1st opposite party?
(ii) If yes, who are liable to pay compensation to
the dependants of the deceased? And;
(iii) What is the amount of compensation entitled
by the dependants of the deceased?
7. Before the Commissioner, the applicant No.2, who is the
father of the deceased, was examined as AW1.
8. On behalf of opposite party No.1, none of the witnesses were
examined.
9. On behalf of opposite party No.2, RW1, who is working as
Senior Manager in their Insurance company, was examined and
got marked Exs.B1 to B4. Upon receipt of summons issued by
opposite party No.2, opposite party No.1 was examined as RW2
and through him, Exs.X1 and X2 were marked.
10. The learned Commissioner, after considering the evidence
and documents available on record and by applying the minimum
rates of wages which are applicable for a light vehicle driver as per
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G.O.Ms.No.83 LET & F (Lab-II) Department, dated 22.11.2006
w.e.f. 04.12.2006, had awarded compensation of Rs.5,88,287/-
along with interest payable by both opposite party Nos.1 & 2 jointly
and severally within a period of thirty (30) days from the date of
receipt of order.
11. Aggrieved by the said order, opposite party No.2/Insurance
Company filed the present Appeal seeking to set-aside the same.
12. Heard the submission of the learned Standing counsel for
Appellant/Insurance Company as well as learned counsel
appearing for the respondents.
13. The main contention raised by the learned counsel for
appellant /Insurance Company is that as the driver of the vehicle
involved in the accident do not possess any driving license, the
Insurance Company is not liable to pay any compensation to the
applicants and that the learned Commissioner had not properly
considered the evidence of RWs 1 & 2 and documents marked
under Exs.B1 & B4 and hence prayed to allow the appeal by
setting aside the order of the learned Commissioner.
14. Per contra, learned counsel for respondents stated that the
learned Commissioner, after considering all the aspects, had
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awarded reasonable compensation for which interference of this
Court is unwarranted.
15. Now the point that emerges for consideration is,
Whether the order passed by the learned Commissioner
requires interference of this Court?
POINT:
16. This Court has perused the entire evidence and documents
filed. The applicant No.2, who is the father of the deceased, was
examined as AW1 and filed chief affidavit in lieu of his chief
examination. He reiterated the contents as to what is stated in the
claim application and deposed that on 21.05.2012 at 1.45 AM in
the night , his son along with one Mr.I.Nageswara Rao, who is
Labourer on the vehicle of Gona Creamline Ice-cream factory
started from Medchal to go to IDA Uppal and when the vehicle
passed through Alugaddabavi bridge near S& T Workshop, his son
drove the said vehicle in a rash and negligent manner and dashed
to a parked unknown lorry, due to which he sustained serious
injuries and was struck in the auto. Therefore, police came and
had taken out the body of his son and sent him in 108 Ambulance
to Gandhi Hospital, Secunderabad for treatment and while
undergoing treatment, his son died on the same day at 6.15AM.
He further stated that the driving license of his son was lost in the
said accident. In support of his evidence, he got marked Exs.A1 to
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A4 on his behalf. Ex.A1 is the FIR in Crime No.60 of 2012
registered by Police of Lalaguda Police Station, Hyderabad based
on a complaint given by Sri I.Nageswara Rao, who traveled along
with the deceased on the subject Auto on the date of incident. The
contents of the FIR states that " As per the statement of one I
Nageswara Rao, who is the complainant and whois working as a
Labour in Gona Cream lines Ice Cream Factory at Uppal, on
20/21.05.2012 at 1.45 hours, he , along with the company driver-
Anwar left from Medchal to IDA Uppal towards Alugaddabavi by
TATA Ace bearing No.AP-29V-3510 and at about 3.00 hours, while
they were passing Alugaddabavi bridge, near S&T workshop, the
driver of TATA Ace drove the vehicle in a rash and negligent manner
and dashed to an unknown parked lorry, due to which he received
minor injuries and the driver received severe injuries and felt
unconscious. Immediately, the Police personnel came to the spot
and shifted them to Gandhi Hospital for treatment. Hence the FIR."
Ex.A2 is the inquest panchanama wherein, the opinion expressed
by the Panchayatdars is that the deceased while working as Driver
on TATA Ace Auto on 20/21.05.2012 at about 3.00 hours dashed a
lorry which is stationed at S & T Workshop. In the said accident,
he sustained injuries on forehead, left hand, right leg and due to
severe bleeding caused due to the above injuries, he died. Ex.A3 is
the post mortem examination report wherein the injuries sustained
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by the deceased are, (i) Laceration of 5x3xcm musclwe deep
present on right side forehead; (ii) Closed freactur eof middle of left
memory present; (iii) rupture liver present. Bladder contusion
present and (iv) left kidney ruptured and the opinion expressed for
cause of death is due to blunt injury abdomen. Ex.A4 is the Final
report filed by Police of Lalaguda Police Station wherein the
investigation done and the evidence collected would establish that
the deceased was the driver of TATA Acer bearing No.AP-29V-3510
and he drove the same in a rash and negligent manner with high
speed and gave dash to a stationed lorry at S& T Workshop,
Mettuguda Secunderabad and sustained bleeding injuries on the
abdomen and other parts of the body and while undergoing
treatment in the Gandhi Hospital, he died on the same day i.e., on
21.05.2012 at 6.15 hours. There is no foul play for the cause of
death of the deceased. It is also stated in the final report that the
deceased was accompanied by the complainant who also sustained
minor injuries.
17. In the cross-examination by opposite party No.2, he
accepted that there is no documentary proof regarding age, wage
and employment of the deceased under opposite party No.1. He
denied that the deceased was not having driving license and also
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denied the suggestion that the opposite party No.2 is not liable to
pay compensation.
18. On behalf of Opposite party No.2, RW1, who is working as
Senior Manager in their Insurance Company was examined. He
stated that the vehicle TATA Ace Auto bearing No.AP-29V-3510 had
valid insurance for the period from 15.03.2012 to 14.03.2013,
which is subsisting as on the date of accident. He also stated that
the deceased was not having a valid and effective driving license to
drive the TATA Ace Auto bearing No.AP-29V-3510 and that
opposite party No.1 had willfully and knowingly handed over the
possession of vehicle to the deceased who had no driving license
and thereby contravened the provisions of the Motor Vehicles Act
and Rules thereunder and hence, Opposite party No.2/Insurance
Company is not liable to pay any compensation. In support of his
evidence, he got marked Exs.B1 to B4 on their behalf. Ex.B1 is
the copy of insurance policy. Exs.B2 & B3 are the reminder letters
issued to opposite party No.1/Ms.Gonna Creamlines requesting
them to provide certain documents viz., driving license of the driver
of the vehicle, fitness certificate and claim form. Ex.B4 is the final
letter issued to opposite party No.1.
19. During his cross-examination, he accepted that the vehicle
TATA Ace was having valid insurance as on the date of accident.
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He said that he do not know whether the driving license of the
deceased was misplaced at the time of accident. He accepted that
the Insurance company had not filed acknowledgments of Exs.B2
to B4 letters issued to opposite party No.1.
20. On receipt of summons from 2nd opposite party, opposite
party No.1 was present and was examined as RW2. In his
evidence, he deposed that the deceased worked as driver under
him for a period of six years prior to his death. He admitted that
he had not filed any documentary proof with regard to employment
of the deceased and he had not kept a copy of driving license of the
deceased in his office record. He denied the suggestion that the
deceased was not his employee and he had no driving license. He
also denied the suggestion that he had not intimated to Food
Safety Department regarding his workforce. In support of his
evidence, he got marked Exs.X1 & X2 respectively. Ex.X1 is the
Aadhar card of opposite party No.1 and Ex.X2 is the copy of
license issued by the Food Safety Department.
21. A perusal of the documents discussed under Exs.A1 to A4,
shows that the deceased worked as Driver under the employment
of Opposite party No.1 on his TATA Ace Auto bearing No.AP-29V-
3510 and on 21.05.2012, he met with an accident while
discharging his duties as a driver on the said vehicle. Further,
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opposite party No.1, who was examined as RW2, admitted the
employment of the deceased as a driver on his vehicle. Therefore,
it can be held that the deceased was a workman within the
meaning of the Act and died during the course of his employment.
Admittedly, the subject TATA Ace vehicle was insured with opposite
party No.2 covering the risk of the deceased and the policy was
subsisting as on the date of accident which fact was admitted by
RW1 during the course of his evidence. Hence, opposite party No.2
is bound to indemnify opposite party No.1 for payment of
compensation.
22. The only dispute that has to be answered is that though the
deceased do not possess any driving license to drive the vehicle,
the opposite party No.1, having knowledge of the same, handed
over the insured vehicle to the deceased thereby violating the terms
and conditions of the policy. As such, opposite party No.2 is not
liable to pay any compensation to the applicants.
23. In this regard, it is pertinent to state that a perusal of Exs.B2
to B4 shows that the Insurance Company inspite of making
bonafide efforts in issuing reminder letters which are dated
03.07.2012, 16.07.2012 and 26.07.2012 to opposite party No.1
asking him to submit necessary documents, which includes driving
license of the deceased, for processing the claim application, the
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opposite party No.1, who is the owner of the TATA Ace vehicle
failed to give any reply nor submitted the same. Hence, from the
above, it is made clear that opposite party No.1, having knowledge
that the deceased do not possess any driving license, willfully
handed over the subject TATA Ace vehicle to him and had violated
the terms and conditions of the Insurance policy.
24. In this regard, it is pertinent to refer the decision of the
Hon'ble Supreme Court in the case between S. Iyyapan v/s M/s
United India Insurance Company and Another 1 wherein, the
Hon'ble Supreme Court held that the Insurance Company is liable
to pay the victim even if the driver was unlicensed so that the
victim should not be deprived of the money due to him. The
Insurance Company has full rights to recover their money from the
owner of the vehicle. Further, the owner can make the unlicensed
driver to pay the compensation.
25. From the above decision, it is clear that the Insurance
Company cannot be exonerated from its liability to pay the
compensation amount. It shall pay the compensation at first and
then recover the same from the owner, who in turn can add the
unlicensed driver to pay the compensation.
(2013) 7 SCC 62
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26. Hence, this Court is inclined to interfere with the finding of
the learned Commissioner and would apply pay and recover policy
so far as fixing of liability upon Insurance Company is concerned.
The Insurance Company shall pay the compensation at first
instance and shall recover the same from the owner, who in turn
can add the unlicensed driver to pay the compensation. Except the
above finding, the findings awarded by the learned Commissioner
in respect of other aspects shall remain the same.
27. With the above observation, the Civil Miscellaneous Appeal is
partly allowed. The order passed by the learned Commissioner is
modified to the extent indicated above.
28. Miscellaneous petitions pending, if any, shall stand closed.
_____________________________
JUSTICE M.G.PRIYADARSINI
Dt.21.06.2024
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