Telangana High Court
Bajaj Allianz General Insurance Co. ... vs Sri K.Balaiah And 2 Others on 15 March, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.300 of 2013
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed
against order dated 16.08.2012 in W.C.No.171 of 2011 on the file
of the Commissioner for Employees' Compensation and Deputy
Commissioner of Labour-I, Hyderabad (hereinafter referred to as
'the Commissioner'). The said claim application was filed by the
applicants therein seeking compensation for death of one Sri K.
Mallesh (hereinafter referred to as 'deceased'), who died in an
accident that occurred on 10.12.2007 and the same was partly
allowed by the Commissioner awarding compensation of
Rs.4,31,765/-. 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 and 2 herein are applicants and respondent No.3 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 are that applicants are parents of
the deceased and the deceased was working as driver on auto
bearing No.AP 23 U 2803 under the employment of opposite party
No.1. On 10.12.2007, while the deceased was on duty as driver
on the said auto and proceeding towards Thoopran from Medchal
along with passengers, at about 06:45 PM, when the said auto
reached near the outskirts of Manhorabad village on National
Highway No.7, one lorry bearing No.AAJ 4548 driven by its driver
in high speed in rash and negligent manner dashed the auto of
the deceased and accident occurred. Due to the said accident, the
deceased sustained severe injuries and was shifted to Gandhi
Hospital, Secunderabad, where he died, while undergoing the
treatment. With regard to accident, a case was registered in
Crime No.317 of 2007 under Sections 304-A and 337 of the Indian
Penal Code, 1860.
4. It is further case of the applicants that the deceased was
aged about 20 years as on the date of the accident and that he
was being paid an amount of Rs.4,000/- towards wages. Further,
the accident occurred during the course and out of his
employment under opposite party No.1. The auto involved in the
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accident was owned by opposite party No.1 and insured with
opposite party No.2. Hence, the present claim application is filed
seeking compensation of Rs.5,00,000/-.
5. Opposite party No.1 remained ex parte. Opposite party no.2
filed its counter denying the averments of the claim application
such as age, wages, manner of the accident, employee and
employer relationship of the applicant and opposite party No.1.
Further, as the compensation claimed was excess and exorbitant,
opposite party No.2 prayed to dismiss the claim application.
6. In support of their case, the applicants got examined
applicant No.1 as A.W.1 and got marked Exs.A-1 to A-7. Opposite
party No.2 got examined R.W.1 and Exs.B-1 to B-7 were got
marked.
7. On the basis of the above pleadings and evidence, the
Commissioner framed the following issues:
"1. Whether the deceased died during the course and out of his
employment as driver on the auto bearing No.AP 23 U 2803
under employment of the 1st opp. party?
2. If yes, who are liable to pay compensation?
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3. Whether there was any violation of policy conditions by the
insured?
4. What is the amount of compensation entitled by the
dependents of the deceased?"
8. After considering the evidence and documents filed by both
sides, the Commissioner awarded an amount of Rs.4,37,765/-
towards compensation to the applicants. Aggrieved by the same,
the present appeal is filed by opposite party No.2.
9. Heard both sides.
10. The learned counsel for the appellant/opposite party No.2
contended that the deceased was not holding valid driving license
at the time of the accident and further, there was no employee and
employer relationship between the deceased and opposite party
No.1, without considering the said aspects, the Commissioner
awarded compensation to the applicants holding both the opposite
parties jointly and severally liable. It is also contended that the
Commissioner erred in granting compensation without there being
any income proof filed by the applicants before the Commissioner.
11. Per contra, the learned counsel for respondent Nos.1 and
2/applicants contended that the Commissioner after considering
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all the aspects has awarded reasonable compensation and
interference of this Court is unnecessary. Hence, prayed to
dismiss the appeal.
12. Now, the point for determination is as follows:
"Whether opposite party No.2 is liable to pay
compensation to the applicants as held by the
Commissioner?"
Point:-
13. This Court has perused the entire evidence and documents
placed on record by both the parties. Applicant No.1 got examined
himself as A.W.1 reiterating the contents of the claim application
such as manner of the accident and also death of the deceased.
In the cross-examination, A.W.1 accepted that he has not filed any
document to prove the age, employment and wages paid to the
deceased. He admitted that he has not produced the original
driving license of the deceased. He categorically denied all other
suggestions put to him.
14. Opposite party No.2 got examined its Assistant Manager-
Legal as R.W.1. R.W.1 deposed reiterating the contents of the
counter filed by opposite party No.2 and admitted that auto
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involved in the accident was insured under valid insurance policy
with opposite party No.2. He also deposed that opposite party
No.1 failed to furnish particulars of the accident to opposite party
No.2, which is a statutory requirement. Though, opposite party
No.2 issued notice to opposite party No.1 to furnish the
particulars, opposite party No.1 failed to furnish the same. He
also deposed that the Toopran Police also failed to forward all the
relevant documents to the opposite party No.2, in spite of
addressing a letter to them. In the cross examination, he
admitted that the policy was in force as on the date of the accident
and risk of driver was covered under the policy.
15. A perusal of Ex.A-1 certified copy of FIR shows that with
regard to accident the Toopran police registered Crime No.317 of
2007 under Section 304-A and 337 of the Indian Penal Code, 1860
and after thorough investigation laid charge sheet under Ex.A-2.
Ex.A-3 is inquest report, which shows the occurrence of the
accident and death of the deceased. Ex.A-4 postmortem
examination report shows that the deceased died due to multiple
injuries. Ex.A-5 is certified copy of MVI report, which discloses
that the accident did not occur due to any mechanical defect.
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Ex.A-6 is photo copy of the insurance policy and Ex.A-7 is photo
copy of registration certificate of vehicle owned by opposite party
No.1. All these documents clearly show the occurrence of the
accident, death of the deceased and involvement of auto owned by
opposite party No.1 in the accident, which was insured with
opposite party No.2. Therefore, there is no dispute with regard to
accident, ownership of the vehicle and also death of the deceased.
16. In the present case, the dispute is with regard to employee
and employer relationship between the deceased and opposite
party No.1, holding of valid driving license by the deceased and
also monthly income of the deceased.
17. It is pertinent to state that opposite party No.1 remained ex
parte. In the absence of any documentary evidence, the right
person to speak with regard to employee and employer
relationship between the deceased and opposite party No.1 is
opposite party No.1 himself, but he remained ex parte. On the
other hand, the evidence adduced by the applicants under Exs.A-
1 to A-7 show that the deceased was employed under opposite
party No.1. When, no evidence is available on record, merely
based on the averments made by opposite party No.2, it cannot be
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said that the deceased was not employed with opposite party No.1.
Therefore, this Court is of the considered opinion that the
applicants have successfully established the employee and
employer relationship between the deceased and opposite party
No.1 and the contention of the learned counsel for the appellant is
unsustainable.
18. Now coming to the quantum of compensation, it is the case
of the applicants that the deceased was aged about 20 years.
However, in the absence of evidence, the Commissioner taking
into consideration the postmortem examination report under
Ex.A-4 determined the age of the deceased as 18 years. The said
aspect was rightly considered by the Commissioner and
interference of this Court is unwarranted.
19. It is the case of the applicants that the deceased was earning
an amount of Rs.4,000/- per month. However, as rightly
contended by the learned counsel for the appellant, no proof of
income was filed by the applicants before the Commissioner. In
the said circumstances, the Commissioner has considered the
minimum wages prevailing as on the date of accident to determine
the compensation. Thus, this Court is of the considered opinion
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that the Commissioner has rightly considered the minimum wages
prevailing as on the date of accident to determine the
compensation and interference of this Court is unwarranted.
20. Learned counsel for the appellant further contended that the
applicants have not produced driving license of the deceased
before the Commissioner, as such the deceased was not holding
valid driving license as on the date of the accident.
21. Admittedly, the applicants have not produced the driving
license of the deceased to show that the deceased was holding
valid driving license as on the date of the accident. The said
aspect has also been admitted by A.W.1 in the cross-examination.
However, he stated that the driving license of the deceased was
lost at the time of the accident. In the said circumstances, it is
apt to refer to the decision of the High Court for the erstwhile
State of Andhra Pradesh in the case of United India Insurance
Company Limited v. Sri Mohd. Khaleel Khan 1, wherein it was
held as under:
"9. The provisions of Workmen's Compensation Act no where
prescribe that if a driver is employed he should possess valid
licence as is required in terms of the mandate of Motor Vehicles
CMA No.872 of 2005 decided on 14.10.2015
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Act 1939. This view is fortified by the judgment of Hon'ble High
court of Karnatka titled Oriental Insurance Co. Ltd. v. Hazira
Begum and others reported in MANU/KA/0384/1994, it is
profitable to reproduce the para 9 of the judgment herein:
"9. A scan of various decisions of the High court will disclose
that where a workman was engaged in the employer's
business and who was doing the very thing he was
employed to do, then the mere fact that he was not acting
strictly by the letter of law will not make the accident any
the less 'arising out of and in the course of employment.' It
follows, therefore, the owner and insurance company are
both liable in such an event.""
22. It is pertinent to note that the claim of the applicants is filed
under the provisions of the Employee's Compensation Act, 1923,
which do not mandate that if a driver is employed, he should
possess valid license as is required in terms of the mandate of the
Motor Vehicles Act, 1939. Moreover, the policy conditions
regarding driver not holding valid and effective driving license at
the time of accident cannot be considered as fundamental breach
that had contributed to the cause of the accident to discharge the
appellant from the liability.
23. As per the decision of the Apex Court in the case of National
Insurance Company Ltd. v. Swaran Singh 2, the insurer had to
indemnify the compensation amount payable to the third party
and the insurance company may recover the same from the
(2004) 3 SCC 297
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insured. In the said decision, the Apex Court considered the
doctrine of "pay and recover" and examined the liability of the
insurance company in cases of breach of policy condition due to
disqualifications of the driver or invalid driving license of the
driver and held that in case of third party risks, the insurer has to
indemnify the compensation amount to the third party and the
insurance company may recover the same from the insured.
24. In view of the above, this Court is of the considered view that
the applicants are entitled for compensation for death of the
deceased in the accident and opposite party No.2 is liable to pay
the same and after payment is entitled to recover the same from
opposite party No.1.
25. In the result, the Civil Miscellaneous Appeal is allowed by
following the doctrine 'pay and recover', the appellant is directed
to pay the compensation amount awarded by the Commissioner to
the applicants, in the first instance and thereafter, recover the
same from opposite party No.1, who is owner of the vehicle
involved in the accident, without initiating any separate
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proceedings. There shall be no order as to costs. Miscellaneous
applications, if any, pending shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Date: 15.03.2024
GVR
