Dismissed

National Insurance Company Ltd., v. Smt. Bandaru Saraswathi and 6 Others

Andhra Pradesh HC22 Dec 2023CMA/86/2015

Case brief

AI extract

What is this about?

This High Court dismissed an appeal against a compensation order under the Workmen's Compensation Act. The court held that the argument regarding policy validity and lack of valid driving license pertained to factual findings, which are not subject to appeal under Section 30 when no substantial question of law is raised.

What did the court decide?

The Civil Miscellaneous Appeal is dismissed.

National Insurance Company Ltd., Vs… — Pension and Retirement Benefits | Andhra Pradesh HC (2023)

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I /

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IN THE HIGH COURT OF ANDHRA PRADESH:: AMARAVATI

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FRIDAY, THE TWENTY SECOND DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE |

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PRESENT

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THE HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA

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CIVIL MISCELLANEOUS APPEAL NO: 86 OF 2015

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Appeal under Section against orders under Section 30 of W.C. Act, against the decree and order dt. 27-4-2013 in WC No.^{12/2010onthefileof} the Commissioner for Employee's Compensation and Assistant Cornmissionerof Labour, Guntur.

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Between:

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National Insurance Company Ltd.,

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Rep. by its Divisional manager,

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Daravari Gardens, G.T.Road, Ongole.

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...APPELLANT

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AND

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Smt. Bandaru Saraswathi, W/o. Late Subarao,

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R/o. Indupavanthenela Road, Guntur. ■

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Bandaru Manikantha, S/o. Late Subarao,

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R/o. Indupavanthenela Road, Guntur.

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Bandaru Durga Bhavani, D/o. Late Subarao,

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R/o. Indupavanthenela Road, Guntur.

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Bandaru Sravani, D/o. Late Subarao,

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R/o. Indupavanthenela Road, Guntur.

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Bandaru Venkataramana, S/o. Late Subarao,

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R/o. Indupavanthenela Road, Guntur.

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Sri Bandaru Venkataiah, S/o. Late Venkatesu, R/o. Indupavanthenela Road, Guntur. (Died) 7. Sri ,Ch. Rama Subba Reddy, S/o. China Konda Reddy, : ;R/o: p. No. 7578(2) Main Road, Gandhi Nagar, Chimakurthi (V M), Prakasam Districta.

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(R2 TO R5 ARE DECLARED AS MAJORS AND R1 IS DISCHARGED^AS THEIR GUARDIAN, AMENDED AS PER ORDERS IN lA.NO. 1 TO^5/2022IN CM A NO.86/2015 DATED 16/12/2022.)

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...RESPONDENTS

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Counsel for the Appellant: SRI. MANIMMA MEDIDA

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Counsel for the Respondent No. 1: SRI. A RAJENDRA BABU

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Counsel for the Respondent Nos. 2 to 5: SRI. RACHAMALLA^SANJEEVA

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REDDY

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The Court made the following Judgment:

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IN THE HIGH COURT OF ANDHRA PRADESH :: m APHC010025142015 AMARAVATI

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(Special Original Jurisdiction)

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FRIDAY ,THE TWENTY SECOND DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE

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3396

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PRESENT

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THE HONOURABLE SMT JUSTICE VENKATA JYOTHIRMAI PRATAPA

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CIVIL MISCELLANEOUS APPEAL NO: 86 OF 2015

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Between:

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NATIONAL INSURANCE COMPANY LTD.

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...APPELLANT(S)

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AND

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SMT BANDARU SARASWATHI 6 OTHERS AND OTHERS

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...RESPONDENT(S)

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Counsel for the Appellant(s):SRI. MANIMMA MEDIDA

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Counsel for the Respondents: 41/A RAJENDRA BABU

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Counsel for the Respondents: A RAJENDRA BABU

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The Court made the following:

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JUDGMENT:

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This Civil Miscellaneous Appeal is preferred under Section 30 of Workmen’s Compensation Act, 1923^ against the impugned order dated 27.04.2013 in W.C. Case No. 12 of 2010 on the file of the Commissioner for Employees’ Compensation and Assistant Commissioner of Labour, Guntur^.

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The appellant herein was the Opposite Party No.2, RespondentNos.1 to 6 were the applicants and Respondent No.7 was the Opposite Party No.1 before the learned Commissioner. For the sake of convenience, the parties will be

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in short “the Act” ^ in short “Commissioner’

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referred to hereinafter as they arrayed before the^{learnedCommissioner.}

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The case of the applicants, in brief, is as follows; a. The applicants are the wife, three minor children and father of the deceased Bandaru Subbarao @ Babu. It is stated that^{thedeceasedSubbarao} worked as a driver for the lorry of O.P.No.1. The said^lorry bearing No. AP 27 W 786 was insured with O.P.No.2. On 30.07.2009 while^the deceased was proceeding on the said lorry from Puthuru to Nellore^{withaloadoffoodgrains,he} lost control over the lorry and hit against a Subabul^{tree,asaresult,thelorry} turned turtle near Kommaneturu road, due to which, he died on the spot. It is further stated that the death of the deceased was out^ofand in the course of employment,

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b. Police also registered it as a case in Crime No.100^{of2009fortheoffence} under Section 304-A I PC.

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c. The deceased was aged about 45 years and used to^{getRs.4,000/-per} month as salary. Applicants sought for the compensation^{ofRs.4.00,000/-forthe} death of the deceased.

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Despite notice is being issued, O.P.No.1 did not^{choosetoappearbefore} the learned Commissioner and he was set ex parte. Whereas,^{O.P.No.2filed} counter denying the contents of the application regarding the age, wage, employment of the deceased and the manner of the accident^and put the applicants to strict proof of their contentions. It^{iscontendedthattheaccident} had not arisen during the course of employment of the^{deceasedandthatthere} that the was no privity of contract between the deceased and O.P.No.2^and deceased was not driving the lorry at the time of the^accident. As there was

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m violation of terms and conditions of the Police, O.P.No.2 is not liable to pay the compensation.

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Basing on the pleadings of both parties, learned^{Commissionerframedthe} following issues:

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Whether the deceased Bandaru Subba Rao @ Babu was a workman u/s.2 (1) (n) of the Workmen’s Compensation^Actatthe time of his death? And whether the deceased had died as a result of accident arising out of and in the course of employment?

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If so, what is the age and wage of the deceased at the time of his death?

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What is the amount of compensation?

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Who are liable to pay compensation to the

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dependants of the deceased?

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During the course of enquiry. Applicant No.1 was^{examinedasA.W.1.The} Co-driver of the lorry was examined as A.W.2. Exs.A.1 to A.9 were the documents marked. On behalf of O.P.No.2, one K.Hanumantha Rao, who was the cleaner of the lorry was examined as R.W.1, but^{nodocumentsweremarked} on their behalf.

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After hearing both the counsel and on appreciation^{oftheevidenceon} record, learned Commissioner awarded compensation of Rs.3,39,558/-against O.P.Nos.1 and 2.

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Feeling aggrieved and dissatisfied with the impugned Order, the Insurance Company/0.P.No.2 preferred the present appeal by raising the following substantial question of law:

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Whether the learned Commissioner is correct in ordering pay and recovery, in case of violation of conditions of the Policy issued by the insurance Company?

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Whether the learned Commissioner is right in ordering^50%of the compensation as penalty on the Opposite Parties^{iftheyfailedto} deposit the compensation amount within the stipulated^time?

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Whether the owner or the Insurance Company are liable^to pay the compensation, if the driver is not holding^{validandeffective} driving licence?

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During the course of hearing, Smt.Manimma Medida,^{learnedcounselfor} the Appellant would submit that, at the time of the^{accident,thecleanerofthe} lorry drove the same and he had no valid driving licence^{andthatthelearned} Commissioner cannot order the Insurance Company to pay the compensation and then recover from the owner.

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Per contra, Sri A.Rajendra Babu learned counsel for Respondent No.1 and Sri Rachamalla Sanjeeva Reddy, learned counsel for Respondent Nos.2 to 5, in unison, would submit that the vehicle has national permit; that the owner is expected to engage two drivers. Further, the learned^{Commissionercannotorder} for pay and recovery in case of any violation of policy^conditions.

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The first applicant as A.W.1 reiterated the contents of the petition in her chief examination. During cross examination she stated that, as per the police records, the vehicle was driven by one Kadiyala Hanumantha Rao, the cleaner of the lorry while the deceased was sleeping on the load of the lorry. Needless to say that A.W.1 is not an eye-witness to the occurrence. One Uppu Venkataiah, who was the co-driver of the lorry was examined as^A.W.2. He narrated about the factum of the accident and the manner in which it occurred. In cross examination A.W.2 stated that he worked as driver under O.P.No.1 from 2009 to 2010 and that there were two drivers and two cleaners on the vehicle of

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O.P.No.1. According to hirn, the deceased, who was the driver and Kadiyala Hanumatha Rao, who was the cleaner, were having driving^{licencesasonthe} date of the accident. The evidence of A.Ws.1 and 2 coupled with Ex.A.1 would show that Kadiyala Hanumantha Rao was driving the vehicle^{atthetimeofthe} accident.

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The record further shows that Kadiuyala Hanumantha Rao, the cleaner of the lorry was examined as R.W.1. He reiterated that while they were coming with paddy load from Puthuru to Nellore, as the driver of the lorry requested him to drive the same as he was getting sleep, at about 4.00 a.m., he drove the lorry and he also got sleep, then the vehicle was tilted and the paddy bags fell on the deceased. R.W.1 further stated that he was not having any valid driving licence to drive the lorry.

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A perusal of the evidence on record clearly shows that the deceased died out of and in the course of employment while proceeding on the lorry. According to R.W.1, at the request of the driver, who was getting sleep at 4.00 a.m., he drove the lorry. That itself indicates that the owner of the lorry had no knowledge that the cleaner was driving the lorry. There is no dispute about the relationship between the deceased and O.P.No.1 as employer and the employee.

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The crux of the matter is, whether the negligence on the part of the driver in giving steering to the cleaner to drive the lorry can automatically disqualify his dependents to get the compensation. Admittedly, what was transpired between

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the driver and the cleaner is not within the knowledge of the owner of the lorry. 15. In Senior Divisional Manager, United India Insurance Company Limited v. Noora^, Hon’ble High Court of Jammu and^{Kashmirobservedas}

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follows;

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“....The aim and purpose of Workman's Compensation Act, 1923 is to ameliorate the sufferings of the workman and to provide a remedy to the workman in order to save the victims of accident/from the destitution, vagrancy and, other^socialevils. 7. The legislation was enacted to assuage and remedy the poverty. It is profitable to reproduce the passage from the objections and reasons for the legislation published as early In 1922. "The general principles of Workmen's Compensation command almost universal acceptance, and India is now merely alone amongst civilized countries in being without legislation embodying those principles. For^a number of years the more generous employers have been in the habit of giving compensation voluntarily,^but this practice is by no means general. The growing complexity of industry in this country, with the increasing use of machinery and consequent danger to Workmen, along with the comparative poverty of the Workmen themselves, renders it advisable that they should be protected, as far as possible, from hardship arising from accidents.”...”

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The Act is a piece of beneficial social legislation enacted with a prime object of safeguarding the rights as well as protecting the welfare of the workmen. It is a settled principle of Law that the Court has to interpret the provisions of the beneficial legislation in order to achieve the object for which it was enacted. When two views are possible basing on the facts placed before the Court ahd proved, the Court has to lean towards the^{viewwhichisbeneficialfor} the workmen.

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' 2005 (3) JKJ 27

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A perusal of Section 30 of the Act makes it clear that its scope for entertaining the appeal against the order passed by the Commissioner is very limited and is restricted to those that are provided in the clauses (a) to (e), and when posed with a substantial question of law. In North^{EastKarnatakaRoad} Transport Corporation v. Sujatha'* the Hon’ble Apex Court reiterated the restriction of jurisdiction in appeal under the Act by virtue of Section 30 and has observed in the following terms;

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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 he 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^{inthecase....”}

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In the present case, there is no dispute about the factum of the employee and employer relationship between the deceased and the O.P. No.1. It appears there is a casual connection between the accident and the employment of the deceased. As such, this Court is not inclined to interfere in the order impugned. Accordingly, the appeal is liable to be dismissed.

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Ex.A.1 would show that the crime was forthwith reported^tothe Police. The driving licence would show the age of the deceased. Admittedly, the insurance policy was in force as on the date of the accident covering risk of the employee. The grounds urged as pointed out earlier touch the factual findings of the learned Commissioner, which ought not to be disturbed while, exercising jurisdiction under Section 30 of the Act. Therefore, this Court does not find any merit in the appeal and the same is liable to be dismissed.

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^ 2019 (11) see 514

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