Civil miscellaneous appeal challenging compensation awarded for a fatal accident involving a cleaner. The court held the impugned order making no error of law as the insurer failed to prove the deceased lacked a license.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
*** HON’BLE SRI JUSTICE B.N. RAO NALLA**
+ C.M. A. No.3318 OF 2004
% Date 19.12.2012
B e t w e e n:
# The New India Assurance Co. Ltd., rep. by its branch Manager, Opp. S.B.H., Habsiguda,Hyderabad.
Appellant A n d
$ Kottala Santhaiah and two others
Respondents
! Counsel for the Appellant : Sri V.Ajay Kumar
^ Counsel for Respondent Nos.1 and 2 : Sri G.Arun Kumar
< GIST :
> HEAD NOTE :
? Cases referred :
-Nil-
HON’BLE SRI JUSTICE B.N. RAO NALLA
CIVIL MISCELLANEOUS APPEAL No.3318 OF 2004
JUDGMENT:
This C.M.A. has been filed by the New India Assurance Company Limited assailing the order dated 31.01.2004 in W.C. No.35 of 2003 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Hyderabad (for short ‘the Commissioner’) whereby and where-under the applicants - claimants were awarded an amount of Rs.2,21,674/- towards compensation as against the claim of Rs.5,00,000/-.
2. The parties hereinafter referred to as they arrayed in the W.C.
3. The brief facts of the case of the applicants are that their son was working as Cleaner on Eicher van bearing No. AP 10 U-8384 belonging to opposite Party No.1 on monthly wages of Rs.2,500/-. On the intervening night of 1/2.06.2002 at about
2.30 a.m., the van was proceeding to Madanapalli from Secunderabad and when it reached at Penna river bridge,
it hit a lorry bearing No. AP 13 U-6336 which was coming from opposite direction, resultantly, he died on the spot. At the time of accident, the deceased was aged 22 years and was unmarried. P.S. Pamidi of Ananthapur district registered a case in Crime No.32 of 2002. Opposite party No.1 has insured his van with opposite party No.2, vide Policy No.22438, dated 9.5.2002 and it was in force at the time of accident. As the deceased died in the accident out of and during the course of his employment, opposite party No.1, being the owner of the van, and opposite party No.2, being the insurer of it, are jointly and severally liable to pay compensation of Rs.,5,00,000/-.
4. Opposite party No.1 filed counter stating that he is the owner of the van bearing No. AP 10 U-8384 and the same was insured with opposite party No.2 and the policy was in force at the time of accident. The deceased was not a regular Cleaner of the van and he was engaged on 26.05.2002 for loading and unloading purpose. The van was going to Madanapalli to bring tomatoes to Secunderabad market and he was paid Rs.50/- per day besides paying batta of Rs.25/- per day. The deceased was paid for seven days. On 02.06.2002, the van met with an accident and the deceased died in the accident. Since the deceased was not a regular employee, he is not liable to pay compensation as claimed by the applicants.
5. Opposite party No.2 filed counter denying the averments made in the application. It did not admit that the deceased was cleaner of the van of opposite party No.1; that the deceased was proceeding in the Van to Madanapalli on 02.06.2002; that he met with an accident near Pennar bridge and that he died on the spot within the jurisdiction of Pamidi P.S. of Ananthapur district. It disputes with regard to age and wages of the deceased. It denies the insurance coverage of the van. The cover note is not tallied with policies issued by it. It is not aware of the registration of case in Crime No.32 of 2002 by Pamidi P.S. as nobody informed it. The applicants did not issue any notice as stipulated under Section 10 of the Workmen’s Compensation Act,1923 (for short ‘the Act’) and that the deceased was not a workman as per Section 2 (n) of the Act. Though the deceased was not the driver of the van and not holding valid driving licence, he drove the van negligently and caused the accident. Therefore, opposite party No.2 is not liable to pay any compensation.
6. On behalf of the applicants, applicant No.1 was examined as AW.1 and Exs.A.1 to A.7 were marked. On behalf of opposite parties, no evidence was let in.
7. Taking into consideration the oral and the documentary evidence made available on record and the submissions made on either side, the Commissioner awarded Rs.2,21,674/- towards compensation though the applicants had claimed Rs.5,00,000/-. Aggrieved by the impugned order passed by the Commissioner in awarding the said compensation of Rs.2,21,674/-, the insurance company filed this appeal.
8. Heard the learned standing counsel for opposite party No.2
(insurance company) and the learned counsel for the applicants and perused the record made available on record.
9. It is contended, inter alia, on behalf of opposite party No.2 that the Commissioner failed to notice that though the deceased was working as a Cleaner, he drove the van without holding valid driving licence at the time of accident and it amounted to violation of the terms and conditions of the insurance policy. It is contended that according to opposite party No.1, the deceased was engaged temporarily for only seven days for loading and unloading the goods, and as such, he does not come within the purview of the relationship of the employee and the employer. It is also contended that the Commissioner erroneously applied G.O.Ms.No.30 of LET&F Department dated 27.07.2000 to fix the wages of the deceased, when the actual wages of the deceased was Rs.50/- per day.
10. On the other hand, it is contended on behalf of the applicants that the impugned order does not warrant interference at the hands of this Court as the Commissioner has given cogent and convincing reasons while awarding the compensation. As such, the C.M.A. is liable to be dismissed.
11. It is seen that the deceased was working as Cleaner of the van belonging to opposite party No.1 at the time of
accident though it is contended that he was engaged for seven days. Since the deceased died out of and during the course of employment with opposite party No.1, it cannot be said that he is not a workman. So far as the contention of opposite party No.2 that though the deceased was working as Cleaner of the van, he was driving the van at the time of accident without holding valid driving licence is concerned, it is not established by opposite party No.2 by adducing any oral or documentary evidence on its behalf before the Commissioner that the deceased was driving the van at the time of accident.
Ex.A.1 - FIR is not a conclusive proof to show that the deceased was driving the van at the time of accident. Further, it is a fatal accident in which the deceased died on the spot. So far as the fixation of monthly wages of the deceased by the Commissioner is concerned, the Commissioner on finding no oral or documentary evidence as to the age and monthly earnings of the deceased, has relied on Ex.A.3 - Post mortem report and took the age of the deceased as 22 years at the time of accident and as the deceased was cleaner at the time of accident, fixed the monthly wages of the deceased as per G.O.Ms.No.30 of LET&F Department dated 27.07.2000. In this view of the matter, the contentions raised on behalf of opposite party No.2 - insurance company are not sustainable. Above all, that since both the opposite parties failed to take steps to lead evidence either oral or documentary before the Commissioner, opposite party No.2 is estopped from taking any pleas or to raise contentions as has been done on its behalf hereinabove.
12. In view of the above reasons and having regard to the facts and circumstances of the case, this Court is of the view that the impugned order passed by the Commissioner does not suffer from any error or irregularity warranting interference from this Court, and as such, the C.M.A. is liable to be dismissed.
13. In the result, the C.M.A. is dismissed. There shall be no order as to costs.
____________________ B.N. RAO NALLA, J Date:19.12.2012 Note: L.R.copy to be marked. B/o. Stp
2 issues framed by the court
Whether the worker was driving the van without a valid license at the time of the fatal accident.
Whether the Commissioner correctly applied wage scales to fix compensation for the deceased.
3 provisions across 2 enactments
The New India Assurance Co. Ltd.
Kottala Santhaiah and two others
B.N. Rao Nalla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
