The Oriental Insurance Company Limited Vs Shaik Huissain Bee

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APHC010516942018

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[3333]

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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WEDNESDAY, THE FOURTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY SIX

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PRESENT

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THE HONOURABLE SMT JUSTICE V.SUJATHA CIVIL MISCELLANEOUS APPEAL NO: 784/2018

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Between:

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THE ORIENTAL INSURANCE COMPANY LIMITED, REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, KORRAPADU ROAD, PRODDUTUR TOWN, Y.S.R. KADAPA DIST.

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...APPELLANT

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AND

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SHAIK HUISSAIN BEE, W/O SHAIK MAHABOOB SHAREEF, AGED 39 YEARS, MUSLIM, HOUSE WIFE (1^st WIFE),

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SHAIK BASIRUN, W/O SHAIK MAHABOOB SHAREEF, AGED 29 YEARS, MUSLIM, HOUSE WIFE (2^nd WIFE)

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SHAIK KHADERVALLI, S/O SHAIK MAHABOOB SHAREEF, AGED 13 YEARS MUSLIM, MINOR

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SHAIK HUSSAINVALLI, S/O SHAIK MAHABOOB SHAREEF, AGED 11 YEARS, MUSLIM, MINOR

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SHAIK KHARIMUN, D/O SHAIK MAHABOOB SHAREEF, AGED 8 YEARS, MUSLIM, MINOR

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SHAIK KHASIRN BEE, W/O FAKRUDDIN, AGED ABOUT 62 YEARS, MUSLIM, HOUSEWIFE, R3 TO R5 MINORS, REP. BY ITS GUARDIAN R1 1. SHAIK HUSSAIN BEE,

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ALL ARE RESIDENTS OF 7/3263, SREENIVASA NAGAR, PRODDUTUR TOWN, Y.S.R. KADAPA DISTRICT.

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VS,J CMA.No.784 of 2018

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V GURIVI REDDY, S/O CHENNA REDDY, AGED NOT KNOWN BUT MAJOR, OWNER OF THE OIL TANKER BEARING NO.AP 03 U 1136, RESIDING AT 3/543-A, BOLLAVARAM OF PRODDUTUR TOWN, Y.S.R. KADAPA DISTRICT.

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...RESPONDENT(S):

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Appeal against orders setting aside the Decree and Judgment dated 24.12.2016 passed in W.C.No.6 of 2010 on the file of the Commissioner, Employees Compensation Act and Assistant Commissioner of Labour, Rajampeta Division, Rajampeta and pass such other orders.

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IA NO: 1 OF 2018

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 141 days caused in filing an appeal challenging the Order dated 24-12-2016 passed in W.C.No.6 of 2010 on the file of the Commissioner, Employees Compensation Act and Assistant Commissioner of Labour, Rajampeta Division, Rajampeta and pass such other orders.

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IA NO: 2 OF 2018

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings of Order dated 24-12-2016 passed in W.C.No.6 of 2010 on the file of the Commissioner, Employees Compensation Act and Assistant Commissioner of Labour, Rajampeta Division, Rajampeta and pass such other orders.

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Counsel for the Appellant:

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1.K MADHUSUDHAN REDDY

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Counsel for the Respondent(S):

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1.D KODANDARAMI REDDY

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The Court made the following:

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VS,J CMA.No.784 of 2018

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JUDGMENT:

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The Insurance Company filed the present appeal challenging the order and decree 24.12.2016 in W.C.No.6 of 2010 on the file of the Commissioner, Employees Compensation Act and Assistant Commissioner of Labour, Rajampeta Division, Rajampeta, whereby and whereunder the Tribunal granted compensation of Rs.3,45,040/- (Rupees Three lakhs Forty Five thousand and Forty only) to the petitioners/respondent Nos.1 to 6 herein, as against the claim of Rs.5,00,000/-, on account of the death of the deceased Shaik Mahaboob Shareef in a motor accident that occurred on 03.06.2009.

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For the purpose of convenience, the parties will be referred to as they are arrayed before the Tribunal.

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The claimant filed the claim petition before the Tribunal under Employee’s Compensation Act 1923 and the A.P. Rules 1923, the case of the petitioner, in brief, is as follows:

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On 03.06.2009, the deceased/Shaik Mahaboob Shareef being the driver of lorry bearing No.AP03-U-1136 who was attending to load the Tanker with petrol at Indian Oil Corporation, Kadapa and left Kadapa at about 4.00 pm and proceeded to Proddatur and that the deceased was driving the lorry and at about 4.45 pm, when the lorry crossed Kothapeta village on Kadapa-Mydukur road, then a bus bearing No.AP04-W-1999 hired to APSRTC came in opposite direction in a rash and negligent manner and dashed against the Oil Tanker on its front portion. As a result, the deceased and one of the inmate

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VS,J CMA.No.784 of 2018

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who was travelling in the lorry as a cooly sustained serious injuries. Immediately both are shifted to RIMS Hospital, Kadapa and on the same day at about 6.30 pm, the deceased succumbed to the injuries while undergoing treatment. Basing on the report, Khajipeta police registered a case in Crime No.109/2009. Thus the deceased died during and out of his employment while discharging his legitimate duties under first opposite party. The deceased was a lorry driver by profession and he is having valid driving license to drive the heavy vehicles. The 1^st opposite party is the employer of the deceased as well as the registered owner of the lorry bearing No.AP03-U-1136 and the deceased was workman. The 2^nd opposite party is the insurer of the lorry bearing No.AP03-U-1136 belongs to the 1^st opposite party.

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Before the Tribunal, notices were sent to both parties and on behalf of opposite party No.1, filed vakalat, written statement not filed and remained exparte.

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The opposite party No.2 filed written statement denying all the allegations in the petition and put the applicants to strict proof of all the contentions made in the application. The applicants have to prove the same by documentary evidence such as FIR, charge sheet, inquest and PM certificate at the time of accident and requested to dismiss the application as against the opposite party No.II with costs.

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VS,J CMA.No.784 of 2018

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Basing on the pleadings, the Tribunal framed the following issues for

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trial:

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“1. Whether the deceased was a workman as per the provisions of the Employee’s Compensation Act, 1923 and he met with the accident arising out of and in the course of his employment?

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2. What is the age of the deceased at the time of accident?

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3. What were the wages paid to the deceased at the time of accident?

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4. What is the Quantum of compensation payable to the applicants?

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5. Who are liable to pay the compensation to the Applicants?”

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On behalf of the petitioners/claimants, A.W.1 was examined and Exs.A1

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to A9 were marked. On behalf of the opposite party No.II, Rw.1 was examined and Exs.B1 to B5 were marked.

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After hearing both parties and after considering the oral and documentary evidence on record, the Tribunal direct the opposite parties No.I and II are jointly and severally liable to deposit an amount of Rs.3,45,040/compensation with 12% simple interest from the date of filing of this claim petition before this Court i.e., 06.02.2010, besides stamp duty of Rs.691/- by means of demand draft in favour of the Commissioner for Employees Compensation and Joint Commissioner for Labour, Kurnool payable at State Bank of India, Kurnool, within 30 days from the date of receipt of this order. If they have failed to deposit the awarded amount within the stipulated time, they have to pay the penalty under Section 4(A) 3 (b) of the Workmen’s Compensation Act, 1923. Therefore, the applicants are directed to make

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VS,J CMA.No.784 of 2018

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representation to the Commissioner for the Employee’s Compensation and Joint Commissioner of Labour, Kurnool, for release of compensation amount deposited by the Opposite Parties I and II and not to this authority.

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Aggrieved by the said award, the respondent No.2/opposite party No.2 preferred this appeal contending that the Commissioner utterly failed to appreciate the fact that primarily the employee and employer relationship shall be established in the claims under workmen compensation, whereas in the present case the case of the claimant is that the deceased worked as a driver of Oil Tanker bearing No.AP03-U-1136 under opposite party No.1 but the applicants have not adduced any rebuttal evidence to the plea of no driving license of deceased on the date of accident. The Commissioner having noticed that the deceased was not possessing valid driving license to drive Oil Tanker on the date of accident as such the question of engaging a driver who does not have driving license by the owner of the oil tanker does not arise, even then the Commissioner below abruptly ordered the insurance company to pay compensation to the applicants. It is, therefore, prayed to allow the appeal.

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On the other hand, learned counsel for the claimants/respondent Nos.1

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to 6 herein has supported the impugned award and prayed to dismiss the appeal.

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Now the point for consideration is:

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Whether the order of the Tribunal needs any interference?

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VS,J CMA.No.784 of 2018

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POINT:

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To prove that the deceased met with an accident on 03.06.2009 while the deceased was driving the lorry/Oil Tanker bearing No.AP 03 U 1136 of 1^st opposite party as a driver, then a bus bearing No.AP 04 W 1999 hired by APSRTC, came in opposite direction being driven by its driver in a rash and negligent manner and dashed against the Oil Tanker/lorry on the front portion, as a result the deceased sustained serious injuries and succumbed to death while undergoing treatment, the applicants relied upon the evidence of AW1 and documentary evidence Exs.A1 to A9.

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A perusal of the record reveals that the evidence of AW1 and RW1 coupled with Exs.A1 to A8, B1 to B5 clearly proves that on the date of accident i.e., on 03.06.2009 as per the instructions of the 1^st opposite party the deceased attended as driver to the Oil Tanker and in that process as narrated supra the deceased succumbed to death. This in turn proves that the deceased was a workmen (Driver) under the employment of 1^st opposite party to his Oil Tanker and there was employee and employer relationship in between the deceased and the opposite party No.I. Thus, the Tribunal has rightly held that the accident occurred while the deceased was discharging his duty as a driver and the deceased succumbed to death because of the said accident and also rightly held that there exists employer-employee relationship between the opposite party-I and the deceased.

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VS,J CMA.No.784 of 2018

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Since the Insurance Policy obtained by the Insured/opposite party-I was in force at the time of accident and as there exists employer-employee relationship between the opposite party-I and the deceased, the Tribunal has rightly held that both opposite party-I/Insured and opposite party-II/Insurer are liable to pay the amount of compensation.

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So far as the quantum of compensation is concerned since no documentary proof is filed to substantiate his income, the Tribunal fixed the wages of the deceased as Rs.4,000/- per month. As the age of the deceased was 44 years as on the date of accident, the Tribunal below rightly calculated the compensation amount of Rs.3,45,040/- by taking age, limited wages and the relevant age factor (Rs.4,000/- x 50 x 172.52/100). In addition to the above, the Tribunal has rightly imposed interest @ 12% per annum and also rightly made both the opposite party-I and opposite party-II are liable to pay compensation & interest jointly and severally and also stamp duty of Rs.691/-. In view of the above reasons, this Court finds no error in the said finding of the Tribunal, warranting interference with the impugned award.

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In the result, the Civil Miscellaneous appeal is dismissed. There shall be no order as to costs.

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Interim orders granted earlier if any, stand vacated.

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Pending miscellaneous applications, if any, shall stand closed.

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___________________ JUSTICE V.SUJATHA

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Date: 04.02.2026 PBS

The Oriental Insurance Company Limited v. Shaik Huissain Bee

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The Oriental Insurance Company Limited v. Shaik Huissain Bee

Case brief

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