Partly allowed

National Insurance Co. Ltd., v. Lagudu Simhachalam

Telangana HC11 Sept 2013CMA/1165/2003

Case brief

AI extract

What is this about?

This appeal challenged a compensation award of Rs. 1,70,100 for a deceased worker. The Court set aside the Commissioner's imposition of a 50% penalty and his erroneous certification that no substantial question of law existed, as these exceeded the Commissioner's jurisdiction at that stage. The compensation amount itself was confirmed.

What did the court decide?

Impugned award modified to set aside penalty and 'no substantial question of law' certificate; compensation of Rs. 1,70,100 confirmed and ordered to be deposited with claimants.

National Insurance Co. Ltd., Vs Lagudu… — Pension and Retirement Benefits | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.1165 of 2003

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JUDGMENT:

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This is an appeal filed by the appellant/insurance company against the compensation awarded in favour of the claimants by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I, Visakhapatnam, in W.C.No.45 of 2000, dated 28.02.2002.

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The facts of the case disclose that the parents of the deceased cleaner filed a claim petition alleging that while the deceased was working on the lorry belonging to the first opposite party-first respondent and insured by the second respondent. While the said lorry was being driven by the driver, who was examined as PW2 on 23.05.2000, when the said driver stopped the lorry in gear without stopping the engine and when the driver went for tea at that time, the lorry is said to have accidentally moved and dashed the wall of the berth and fell into the sea resulting in the death of the cleaner Sankara Rao, who was the son of the claimants. The said allegation of the claimants was denied by the insurance company by filing counter stating that the deceased was not the cleaner but was sitting in the lorry at the time of accident and he himself meddled with the gear resulting in movement of the lorry and the accident. The claim for compensation was, therefore, denied by the insurance company.

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During the trial, however, the first claimant, father of the deceased, was examined as PW1. The driver of the lorry as PW2 supported the claimant’s statement and stated that while the

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vehicle moved at its own and fell into the sea after hitting the wall, the driver was the person who gave report to the police. On behalf of the insurance company, RW1 was examined, who was the Administrative Officer. The Commissioner, however, came to the conclusion that the relationship of employer and employee was established and the accident, which occurred during the course of employment, resulted in the death of the cleaner and, therefore, held that the claimants are entitled to compensation. The age of the deceased was determined as 20 years based upon the medical report and in the absence of any proof of wages, statutory wages, minimum wages as per G.O.Ms.No.58, dated 08.04.1991, was adopted. The compensation of Rs.1,70,100/- was awarded. Aggrieved thereby, this appeal is preferred.

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The learned counsel for the appellant points out at the outset that the Commissioner has not only assessed the compensation, but has awarded 50% penalty and has further certified that there is no substantial question of law. The Commissioner further writes in the order itself that there is no substantial question of law involved in the matter. The learned counsel states that last two paragraphs of the impugned order are wholly unsustainable. More over, it is submitted that there is no evidence of employer and employee relationship and the accident occurred on account of meddling of the gear by the deceased.

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So far as the assessment by the Commissioner on merits of the claim are concerned, evidence of PWs1 and 2 fully supports the case of the claimants and except the evidence of Administrative Officer, there is no rebuttal evidence on behalf of the respondents. I am, therefore, not inclined to discard the evidence lead by claimants before the Commissioner. The wages

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of the deceased have been based upon the minimum wages fixed at the time of accident and as such no infirmity on that regard can be culled out. The assessment of compensation at Rs.1,70,100/-, therefore, does not deserve to be interfered with.

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So far as the awarding of penalty is concerned, the said issue of penalty cannot be adjudicated by the Commissioner even before adjudicating on the compensation claimed. The compensation has for the first time decided the quantum of compensation by award, dated 20.02.2002. It is not open for the Commissioner to impose penalty at that stage itself. Secondly, the further paragraph in the impugned award that there is no substantial question of law involved in the appeal, etc., is concerned, it is clearly erroneous as it is not for the Commissioner to certify whether there is substantial question of law or not and it is for this Court as an appellate Court to assess the said aspect. The last two paragraphs of the award imposing penalty of 50% as well as certifying that there is no substantial question of law, therefore, are liable to be set aside and are hereby set aside. The impugned award, therefore, stands confirmed to the extent of awarding compensation of Rs.1,70,100/-. The said amount was already deposited by the appellant-insurance company as per the certificate produced along with this appeal be, therefore, made over to the claimants.

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The Civil Miscellaneous Appeal is, accordingly, disposed of. No costs. Miscellaneous petitions pending in this civil miscellaneous appeal, if any, shall stand closed. There shall be no order as to costs.

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__________________________

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JUSTICE VILAS V.AFZULPURKAR

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11^th September, 2013

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THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR

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CIVIL MISCELLANEOUS APPEAL No.1165 of 2003

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11^th September, 2013

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National Insurance Co. Ltd., v. Lagudu Simhachalam

Case brief

What is this about?

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National Insurance Co. Ltd., v. Lagudu Simhachalam

Case brief

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What did the court decide?

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