Telangana High Court

New India Assurance Company Ltd vs K Harish on 20 September, 2024

Author: G. Radha Rani

Bench: G. Radha Rani

       THE HONOURABLE Dr. JUSTICE G. RADHA RANI

     CIVIL MISCELLANEOUS APPEAL Nos.104 & 106 of 2018

COMMON JUDGMENT:

Both these appeals are filed by the appellant - Insurance Company

aggrieved by the orders of the learned Commissioner for Employees

Compensation and Deputy Commissioner of Labor-I, T.Anjaiah Karmika

Samkshema Bhavanam, RTC 'X' Roads, Hyderabad in E.C.No.139 of 2015 and

E.C.No.137 of 2015, both dated 13.11.2017.

2. The applicant in E.C.No.139 of 2015 was the adopted son of the deceased

Krishna, who worked as a cleaner on an Eicher Van bearing No.AP-07-TB-

2155 under the employment of opposite party No.1 (for short "O.P.1") and

sustained injuries in an accident that occurred on 27.05.2015. The applicants in

E.C.No.137 of 2015 were the wife, minor son and parents of the deceased

Younus, who worked as a driver on the same Eicher Van bearing No.AP-07-

TB-2155 under the employment of O.P.1 and sustained injuries in the same

accident that occurred on 27.05.2015.

3. The case of the applicants was that on 26.05.2015 one Mr.Raheem, the

additional driver of the Eicher Van bearing No.AP-07-TB-2155 started from

Gajula Malkapuram Village with a load of Chilly and while proceeding towards

Hyderabad on the said vehicle, on the way, stopped the vehicle in front of new

Dr.GRR, J cma_104 & 106_2018

Bus Stand on service road of Suryapet Town and called driver Younus over

phone to relieve him from duty. Accordingly, driver Younus came to the Bus

Stand along with cleaner Krishna and met Mr.Raheem and while they were all

together proceeding towards the Eicher Van bearing No.AP-07-TB-2155, in the

meantime at about 00:15 hours on 27.05.2015, suddenly a Tempo Traveller

bearing No.AP-29-TB-8883 coming from Vijayawada side driven by its driver

in a rash and negligent manner with high speed hit the three persons who were

crossing the road, due to which cleaner Krishna died on the spot and the drivers

Younus and Raheem sustained severe injuries and were shifted to Area Hospital,

Suryapet, where Younus succumbed to injuries. As per the case of the

applicants, both the deceased driver and cleaner were proceeding towards the

vehicle to relieve the additional driver Mr.Raheem and they died during the

course of and out of their employment with Opposite Party No.1. Police of PS

Suryapet Town registered a case in Crime No.189 of 2015 under Sections 304-

A and 337 of IPC against the driver of the Tempo Traveller bearing No.AP-29-

TB-8883.

4. The claimants in E.C.No.137 of 2015 claimed compensation of Rs.8.00

lakhs along with interest and costs for the death of the deceased Younus and the

claimant in E.C.No.139 of 2015 claimed compensation of Rs.6.00 lakhs for the

death of the deceased Krishna in the said accident.

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5. The Opposite Party No.1 remained ex-parte. The Opposite Party No.2

(for short "O.P.2") i.e. the Insurance Company filed counter and called for strict

proof of the employer and employee relationship between the deceased and

O.P.1, the manner of the accident and that the deceased persons died during the

course of and out of their employment with O.P.1. The O.P.2 contended that

the deceased persons had not commenced their duties and not even boarded the

Eicher Van bearing No.AP-07-TB-2155. Even as per the contention of the

applicants, they met with the accident prior to commencement of their duty on

the said vehicle and the accident took place by another vehicle and the Eicher

Van was not involved in the accident. Therefore, O.P.1 alone was liable and

O.P.2 was not liable to pay any compensation to the applicants. The O.P.2

further contended that the applications were not maintainable for non-joinder of

driver, owner and insurer of the Tempo Traveller bearing No.AP-29-TB-8883.

6. The sole applicant in E.C.No.139 of 2015 was examined as AW.1 and

Exs.A1 to A9 were marked on behalf of the applicant in the said case. The

applicant No.1 in E.C.No.137 of 2015 was examined as AW.1 and Exs.A1 to

A9 were marked on behalf of the applicants in E.C.No.137 of 2015. The

Administrative Officer of O.P.2 - Insurance Company was examined as RW.1

in both the cases. Exs.B1 and B2 were marked on behalf of O.P.2 - Insurance

Company.

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7. On considering the oral and documentary evidence on record, the learned

Commissioner for Employees Compensation and Deputy Commissioner of

Labor - I, Hyderabad held that there were no fixed working hours to the drivers

and cleaners working on goods carriage vehicles. It was a common practice for

the drivers and cleaners to relieve other drivers and clearers of the vehicle at a

point and the drivers and cleaners, who relieve the other driver and cleaner,

would proceed on the vehicles further from that point, where they relieve the

drivers and cleaners. But for the employment as driver and cleaner engaged for

driving the Eicher Van bearing No.AP-07-TB-2155, the deceased need not be

present at that particular spot at that particular moment. As such, the accident

occurred during the course of their employment and by reason of their

employment, they met with an untoward event resulting in their death and as

such held that the deceased persons were workmen within the meaning of the

Employees Compensation Act, 1923, met with the accident on 27.05.2015

during the course of and out of their employment and died in the accident.

8. With regard to the contention of O.P.2 - Insurance Company that the

owner and insurer of the Tempo Traveller were also necessary parties to the

application and the application was not maintainable for non-joinder of

necessary parties, the learned Commissioner held that the claim would lie only

against the employer and insurer of the vehicle, on which the deceased

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workmen were working at the time of the accident. Therefore, the owner and

insurer of the crime vehicle were not necessary parties for the application.

9. The Administrative Officer of the Insurance Company examined as RW.1

stated in his evidence affidavit that the Insurance Policy was not transferred in

the name of O.P.1. It was in the name of the previous owner of the said vehicle

and the application was liable to be dismissed on the said ground also. The

learned Commissioner on this aspect observed that as per Ex.A6, the certificate

of Registration, O.P.1 was the registered owner of the Eicher Van bearing

No.AP-07-TB-2155 with effect from 09.12.2014 and as on the date of the

accident on 27.05.2015, O.P.1 was the registered owner of the said vehicle. As

per Ex.B1, Insurance Policy, one Manchala Mohan Rao was the insured and the

O.P.No.2 was the insurer and the insurance policy was valid covering the date

of the accident. There was admitted transfer of ownership of the vehicle, as

proved through the documents placed before the Commissioner. Once, the

ownership of the vehicle was admittedly proved to have been transferred to the

O.P.1, the existing insurance policy in respect of the same vehicle, would also

be deemed to have been transferred to the new owner and the policy would not

lapse even if intimation was not given to the insurer. Therefore, the O.P.2 was

bound to indemnify the liability of O.P.1.

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10. Another contention was also raised by RW.1 in E.C.No.139 of 2015

contending that the applicant stated that he was the adopted son of the deceased,

but to substantiate such adoption, the applicant did not file any material

evidence to prove the same. The learned Commissioner considering the inquest

panchanama marked under Ex.A2 and the charge sheet filed before the Judicial

First Class Magistrate, Suryapet marked as Ex.A4, where the applicant was

shown as the adopted son of the deceased and Police after due investigation

filed charge sheet, opined that the applicant was the adopted son of the deceased

Krishna.

11. As no valid evidence was adduced by the applicants to show the wages of

the deceased, the learned Commissioner relying upon the minimum rates of

wages fixed by the Government of Telangana in the Public Motor Transport

vide G.O.MS.No.83, L.E.T & F (Lab-II) Department dated 26.11.2006 with

effect from 04.12.2006 considered the wages of the deceased and calculated the

compensation and held that O.Ps.1 and 2 were jointly and severally liable to

pay compensation of Rs.5,69,155/- with interest @ 12 % per annum from

28.06.2015 till the date of realization in E.C.No.139 of 2015 and that the

applicants in E.C.No.137 of 2015 were entitled to a compensation of

Rs.8,63,807/- with interest @ 12 % per annum from 28.06.2015 till the date of

realization.

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12. Aggrieved by the said orders passed by the learned Commissioner for

Employees Compensation and Deputy Commissioner of Labor-I, Hyderabad,

the O.P.2 - Insurance Company preferred these appeals raising the following

substantial questions of law in C.M.A.No.104 of 2018 as:

(a) Whether the order of the learned Commissioner is correct in making the appellant liable to pay compensation when the applicant aged 19 is claiming as adopted son of the deceased K.Krishna, aged 40 years?

(b) Whether the order of the Learned Commissioner is correct in holding the adoption of the appellant by the deceased as valid without any valid legal adoption deed?

(c) Whether the learned Commissioner is correct to consider the averments of the inquest report, wherein the applicant is shown as an adopted son, even though the description shows, the applicant as son of Late Nageswar Rao?

13. The O.P.2 - Insurance Company raised the following substantial

questions of law in C.M.A.No.106 of 2018 as follows:

(a) Whether the order of the learned Commissioner is correct in making the appellants liable to pay compensation when the deceased along with two others met with an accident on the road?

(b) Whether the order of the learned Commissioner is correct in not observing that the vehicle was planted with the help of the Police and the O.P.1, only with an intention to see that the applicants can receive the compensation?

(c) Whether the learned Commissioner is correct to consider the deceased as an employee under the O.P.1 and died during the course of his employment?

Dr.GRR, J cma_104 & 106_2018

14. Heard Sri Kola Sameer Kumar, learned counsel for the appellant and Sri

V.Jagan Mohan, learned counsel for the respondents - applicants.

15. The Hon'ble Apex Court in Fulmati Dhramdev Yadav & Another v.

New India Assurance Company Limited & Another 1 , on considering the

provision of Section 30 of the Workmen's Compensation Act, 1923 (for short

"the Act"), which was amended vide the Workmen's Compensation

(Amendment) Act, 2009 and substituted and re-christened as Employees

Compensation Act, 1923 and after extracting the same, held that:

"17. The Act is unequivocal in stating that an appeal from an order of Commissioner can be entertained only if there exists a substantial question of law to be considered. It has been observed by this Court that the phrase "substantial question of law" within this Act shall be understood by its general meaning. When considering the general meaning of this phrase, naturally, the reference is to the Code of Civil Procedure (CPC). The rule therein is that framing of a substantial question of law is of cardinal importance.

20. In North - East Karnataka Road Transport Corporation v. Sujatha [(2019) 11 SCC 514] (Two-Judge Bench) amongst numerous other cases, observed:

2023 INSC 790

Dr.GRR, J cma_104 & 106_2018

"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."

21. The other ground making the order under challenge, amenable to interference when the scope of jurisdiction is circumscribed by it being exercised only in cases of "substantial question of law", is perversity in the findings.

23. It has also been observed by this Court that the Commissioner is the last authority on facts involved in a case. In Golla Rajamma & Ors. v.

Divisional Manager & Another [(2017) 1 SCC 45] (2-Judge Bench), it was observed that "under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to reappreciate the evidence and recorded its own findings on

Dr.GRR, J cma_104 & 106_2018

percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act."

25. On merits too, we find that the conclusions arrived at by the Commissioner, were undoubtedly "a possible view", therefore extinguishing the possibility of perversity in findings.

26. A Bench of two learned Judges observed in C. Manjamma v. New India Assurance Company Limited [(2022) 6 SCC 206]:

"15. That being the position, the view taken by the Commissioner had been a possible view of the matter in the given set of facts and circumstances; and there was no reason for the High Court to interfere with the same, particularly when the case did not involve any substantial question of law within the meaning of Section 30 of Employees Compensation Act, 1933."

30. It is well-established that the Act is a social welfare legislation and, therefore, it must be given a beneficial construction. Matters thereunder are to be adjudicated with due process of law and also with a keen awareness of the scope and intent of the act. This Court has,

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time and again, reiterated this principle. We may refer to K. Sivaraman v. P. Sathishkumar [(2020) 4 SCC 594] wherein, speaking for the Court, Dr. D.Y.Chandrachud J., observed: -

"25. The 1923 Act is a socio-

beneficial legislation and its provisions and amendments thereto must be interpreted in a manner so as to not deprive the employees of the benefit of the legislation. The object of enacting the Act was to ameliorate the hardship of economically poor employees who were exposed to risks in work, or occupational hazards by providing cheaper and quicker machinery for compensating them with pecuniary benefits.

The amendments to the 1923 Act have been enacted to further this salient purpose by either streamlining the compensation process or enhancing the amount of compensation payable to the employee."

(Emphasis supplied)

16. In the light of these principles, the above substantial questions of law

raised by the learned counsel for the appellant - Insurance Company need to be

considered. The orders of the learned Commissioner on all the above aspects

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raised by the appellant - Insurance Company are undoubtedly a possible view

extinguishing the possibility of perversity in findings. The learned

Commissioner being the last authority on facts and as the scope of the appeal

under the Employee's Compensation Act is limited only to substantial questions

of law and as the questions raised by the appellant does not appear to be

substantial questions of law, but only questions on facts, which were already

answered by the learned Commissioner and no perversity could be

demonstrated in the orders of the learned Commissioner by the appellant, both

the appeals are dismissed confirming the orders of the learned Commissioner

for Employees' Compensation and Deputy Commissioner of Labor - I,

Hyderabad in E.C.Nos.139 of 2015 and 137 of 2015 dated 13.11.2017.