Dismissed

Hdfc Erfo General Insurance Company Ltd. v. Smt.B.Jyothi and 3 Others

Telangana HC8 Sept 2023CMA/320/2014

Case brief

AI extract

What is this about?

This court dismissed an appeal by an insurance company against a Commissioner's award of compensation for a driver's death. The court held the insurer was liable and quashed the appeal, noting the insurer failed to deposit the required compensation amount as per Section 30 of the Act.

What did the court decide?

Appeal dismissed; compensation award of Rs.6,79,610/- stands affirmed; no order as to costs.

Hdfc Erfo General Insurance Company Ltd. Vs Smt.B.Jyothi and 3… — Insurance | Telangana HC (2023)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY,THE EIGHTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY THREE

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PRESENT

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THE HONOURABLE SMT JUSTICE M.G.PRIYADARSINI

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CIVIL MISCELLANEOUS PEAL No : 320 0F 2014

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(Appeal Under Section 30 Workmen's Compensation Act, 1923, against the Order dated.28.03.2013, in W.C.No. 77 of 2O11^passed by the Commissioner for Employee's Compensation and Assistant Commissioner of Labour-ll at Hyderabad. Between:

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HDFC ERGO GENERAL INSURANCE COMPANY LTD, Rep by its Legal Manager, 2nd Floor, #6-3-34611, Opp. Jalagam Vengalrao Park, Road No.1, Banjara Hills, Hyderabad-34.

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...APPELLANT/OPPOSITE PARTY No. 2

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AND

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Smt.B.Jyothi, W/o lale B.Ramulu, Occ Housewife, Native of Revalli Village, Gopalpet Mandal, lvlahabubnagar District, Temporarily residing at Hyderabad.

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B.Chinna Balamma, Wo late Sri B.Jonur @ Janaiah, Occ Housewife, Native of Revalli Village, Gopalpet Mandal, Mahabubnagar District, Temporarily residing at Hyderabad.

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LB.Babu, S/o Sri B.JonurJanaiah, Native of Revalli Village, Gopalpet Mandal, Mahabubnagar District, Temporarily residing at Hyderabad.

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... RESPONDENTS/APPLICANTS

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P.Venkateswarlu, S/o P.Venkatasubbaiah, Occ: Business, R/o Plot No.1080, Flat No.102, SSV Mount Fort Apartments, Pragathinagar, Hyderabad - 90.

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...RESPONDENT/OPPOSITE PARTY No. 1

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l.A. NO: 2 OF 2013(CMAM P. NO:^'1232 OF 2013)

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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^grant stay of all further^proceedings in^pursuance of the order dated^{2813/2013 passed} in W.C.No.77 ot 2O11 on the file of the Commissioner for Employees' Compensation and Assistant Commissioner of Labour^{- ll,} at Hyderabad,^pending disposal of the above appeal.

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Counsel for the Appellant^{:SRl. T. MAHENDER RAO} Cbunsel for the Respondents^{: SRI C. H. INDRASENA REDDY}

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The Court made the following:^ORDER

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THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSI NI CIVIL MISCELLANEOUS APPEAL No. 32O OF 2014 JUDGMENT:

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Aggrievcd bv thc ordt:r dart:d 28.O3.2O13 r:r W.C.Carsc No. 77 of 2O 1 1 passcd bt, thc Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-U, Hyderabad, the opposite par-tv No. 2/lnsurzrnce Company has liled the prcsent appeal.

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For lhe sakc of cr;nvcn icncc, hereinafter, the parlies ri,ill be referred as per thcir ar.r :rv ltcforc thc Comlnissionr:r.

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Tl-rc brief Lrcts of the czrsc arc that thc applicants have filed an appliczrtion uncler the provisions of Workrnen's Compensation Act, 1923 (arncnclcd as Employees' cornpensation Act) (for short 'thc r\r:t') clzriming compensation of Rs. 1O,O0,000/- frrr ttre dcath of thc deceased in the accident that occurred on24.l1.2011. [t is stated that on the lateful day, upon instructions ol opposilc ltarty No. 1, emplover, thc deceased u'as atterrc{ing his dutrcs as driver on thc JCB vehicle bearing No. AP 28 BP 8'/4O, or.vnccl by opposite party No. 1, cnrployer, insurecl u,ilh opirosjLc part)/ No.2, insurer and q,hilc the deceasr:d u.as clischarqirrr3 his drrtics as driver on the said JCI3 at Balaji cotrstrucrions, somc hard material Icll on his

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}I(i P,.,I c N,l/\ ltr) lo1:t

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head, due to shich, the deceascd^{sustained grievous injuries on} the hcad and fcll down from^{the said JCB vehicle. As a result,} thc deccascd succumbed to the injuries^{while undergoing} treatment at Rcmedy Hospital.^{Based on the complaint,the} Police, I{PHB Police Station, registered^{a casein CrimeNo. 933} of 20 I 1. According to the applicants,^{the deceasedwasagcd} about 24 years and earning^{wagesof Rs 8,OOO/-per month and} batLa ol Rs. IOO/^per day^{as driver under the employment of} opposirc part].No. I^{and used to contribute his entire earnings} for rhc u,elfare of the family.^Duc to^{the suddendemise of the} deceased, the applicants^{lost their only bread winner, source of} incomc and love and affection.^{Hence, the applicantshave filed} Lhe application claiming^{compensationofRs.1O,O0,00O/-} against thc opposite^{partyNos. 1 and 2, who are jointly and} severalll, liablc to^{pay the compensation.}

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Before the Commissioner, the^{opposite party No. 1} remained ex parte artd^{whereas, the oppositeparEyNo' 2,} appeltant herein, hled^{counter denying the avermentsof the} application such as employee-employer^{relationship, salary, age} of the dcceased and^{manner of accident.He furthercontended} that unless and until it^{is provedthat the deceaseddied during} the course o[ his employment^{and was having valid and effective}

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IUCP..J ( \l,\ 324) )ot l

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driving licence, the Insurtrncc Company is not liablc to pay the compensalion. He lastly contcr-rdcd that claim is exccssive and exorbitant and prerycd to dismiss the application.

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On behalf of the applican ts. AW. I u,as e xarnined and Exs.A. 1 to A.8 u,erc marked. Exs.A. 1 and A.2 are tllc ccrtified copies oI FIR and complaint, trx.A.3 is thc certifit d copy ol inquest report with alteration lnemo, Dx-A.4 is the llostmortem examination rcport, Dx.A.5 is Lhe copv of RC o[ the JOB vehiclc, trx.A.6 is the cop)' of insurancc policy, trx.A.7 rs the copy of driving licence and Dx.A.S rs thc copy of driving licence ol another vehicle. Or-r bchall of opposite party No. 2, IlW. 1 was examined and Ex.B.l, copl' of insurance policy, was nrarked.

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The Commissroner after considering the evidence on record, both oral and documcntary, bl,determining the wages of deceased as Rs.6,6 12.8O per month, by applying the factor '219.95' for the age o[ deceased bcing 23 years, :Llong rvith stamp and advocate lee of Rs. 1,856/ -, has awarded compensation of Rs.6,79,610/ .

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Aggricved b1 thc compensation awarded by the Commissioner, the opposite parry No.2/ Insurance Company has filed the present appeal to set aside the impugned ordt:r.

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\1GP,J cMA 310 201⁺

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Heard both sides ancl perused the rccord

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Thc mair-r contention o[ learncd Standing Counsel lor the opposite partl- No.2/lnsurance^Company is that^{thereu,as no} employee emplol,'cr relationship^{between the deceasedand the} oppositc partl^No- 1 as the dcccased was sitting^{beside the} drivcr seat instead o[ dnviug the said JCB^{vehicle at the time of} accident and^prayed to^{dismiss thc application against opposite} partl' No. 2.

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On the other hand, learned counsel for^{the applicants} sought to sustain the^{impugnedorder} of the^Commissioner contcnding that considcring all the aspects^{includingthe age} and avocation o[ the deceased, the Commissioner^{has awarded} reasonable compertsation and^{the sameneeds no i.nterference} by this Court.

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I l. [n vievv of the rival contentions, this Court^hasperused the er-rtire record ancl found that the applicant^{No. 1, wife o[ the} deceased, was examined^{as AW. 1 and reiterated the averments} of the applicalion in^{her chief examination.She deposed that} the deceased u,as having^{valid driving licenceat the timeof} accidcnt and was working as driver under the^{employment of} opposite party No. 1, cmployer. Though AW. 1^{was cross}

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examined at length, nothinS.rdvers('\'as cltcited to discredit her evidence.

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The main contention of Lhc lcarncd Standrng Counsel lor the Insurance Company is thert though the insurance policy under Ex.B.1 is subsisling as on lhe clare ol the accident, the policy does not cover the risk of the dcceascd, rvho rvas sitting next to the driver, as no additional ltremir-rm was ;:aicl bv the opposite party No.l and rhus, oPposite ParrJ,- No 2 is not entitled to pay any compensation In support of such contention, the opposite party No. 2 examined their Assistant Manager as RW. 1, who deposccl that thc siticl JCB vehicle was insured vi<le policy No. 23^{'162OOO924a5600OOO} valid lrom 30.05.2011 lo 29.O5.2O 12 and it does not cover thc risk of the deceased, u,ho was sitting ncxt to the drivcr, as no additional premium rvas paid by the oppositc party No.l. He admltted that the deceased was working as driver on the said JCB vehicle and the deceased died during and in thc course of his employment with opposite party No. 1. In his cross-exam ination, the RW. 1 admitted that Rs.25/- was paid as additional premium.

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cMA 310 lo I 4

1 3. I n Oriental Insurance^{ComPanyLirrrited w. Meena}

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Variyal and othersl, thc Honourable^{SupremeCourtobserved} as under:

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"{Jnidluencetl bg authorities, ue find^no drJlicuttA in understancling^{this prouisionas orle} prouiding lhat the policy^{rnust lnsure anotuner} agatnst ang tiabilitlt to a^{Lhird partA cousedbg or} aising out of the use of the^{uehiclein a public place,} arul against death or bodity^{utjury to any passengerof} a pubtic serurce uehrcle caused^{bg or orising out of the} use of uehicle it a public^{place- TheprouisocLai"fies} that the policy sholl not^{be required to coueran} ernplogee of the itsured^{in respect of bodilginjury or} death aising out of^{and inthe course ofhis} empLoyment.^'I'hen, an exception^{is prouided to the last} foregoing^{Lo the e-[[ect that the policg must couer a} tiabilitg aising under the^{Workmen's Compensation} Act, 1923 in respect ol^{the death or bodilgtnjury to an} employee uho is enqcLged it^{diuing tle uehicleoru..tho} serues as a conductor^{in a public seruice uehic\eor an} employee u.tLto trouels^{in the uehicleof the employer} carrytng goods if it^is o^{goods carriage. Section149(1} ), uhich casts an obtigation on^{an insurer to satisfg an} ataard, also speaks on\y of^{auardin respect of such} liabtlity as [s required. to^{be couered bg a policgunder} clause (b) of subsection^{(1) of Section147 (being a} tiabititg couered by the terms of^{the policg). This} prouision cannot therefore be^{used to enlarge the} liability tf tt does not eist m^{termsof Section 147 of} the Act. 14. The object of the^{[nsistenceon insurance}

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I (2007) 5 SCC 42u

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vI(; P,,l c) r\ I r0 :o 1,1

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I !i ., I I I i i I I i

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.-=.ry

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under^(:hapter XI of the Act thu:; seems to be It., compulsorily couer the LiabiLitg relating to their person or properties of thtrd parties cttd in respect^()l' employees of the insured employer, the Liabtlittl thctt may anse under the Workrnen's CompensQLk)tl Acl, 1923 in rezspect of the dnuer, tlte conductor ctrul tht one carried in a goods uehicle carryilg goods.''

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l4. In vicu' of the above discussion and consi(lcring the principle laid down in the above said authorities ancl since thc deccased is not a gratuitous passenger and as rhc ck ceased is an employec rendering his services to the opposi[e pilrt\ No. ] under employee-employer relationship, the contcntion of the learned Stancling Counsel for the opposite parl' No. .l lhat thc policy does not cover the risk of the deceased, u.ho was sitting next to the driver, in vieu, ol non-paymenr of additional premium, is unsustainable. Therefore, the oppositc pzrrtl, No. 2 is liable to indemnify the opposite party No.1, emplolcr i.e., or,r''ner of the said JCB vehicle.

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Though several grounds were raised by the learned Standing Counsel for the appellant - insurance conrpany, it appears that most of such grounds are based on question of fact but not on qucstion of law, more particularly, t'hcn the oppositc party No. 2 tailed to establish that there are errors apl-rarcnt on the face of the record. The Honourable Supreme Courc in North

MGP,J cMA 320 2014

o -,VI\

East Karnataka Road^{Transport Corporationv. Sujatha2 held}

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as under

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"9. At the outset, Luc rnay toke note of the fact, being a settled pnnciple, Lhctt the.^question as^to uthether the emploAee met LUiLh on ac.cident, tuhether tlle accident ocanrred cluing the course of emploAment, u.thether it arose out of an emptoyment, hou and in uLhat manner the accident ocatrred, tuho uas negligent in causing Lhe eccident. uhether there existed any relationship of ernployee and emploAer, uhat Luas the age and ntonthhl salary of the emplogee, hotu rnang are the dependents of the deceased emplogee, the exten.t of disabilitg caused^to the emploAee d-ue Lo inluies sufferecl in an accident, tuhether there Luas ang itsurctnce couerage obtained by the emploger to couer the incident etc. ore sone of Lhe moteial issues ruhich anse for thr: lust decision of the Commissioner in ct clcttrn petition u.then an emploAee suffers ang bodily injury or dies dunng the course of his emplogment and he/ his LRs sue1s./ his empLoger to claim compensaLton utTcler^the Act.

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The aforementioned questions are essentiallA the questions ol fact and therefore, they are required to be proued with the uid of euidence. Once they are proued either uag, the Jindings recorded thereon are regorcled cLs the frndings of fact.

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The appeaL proucled under Section 3O of the Act to the High Court cLgainst the ord.er of the Commissioner ltes onlg against the specific orders set out in clauses (a) to^(e) of Section 3O of the Act w;th a further^{rider containedin the} frst^{prouiso to the} section that the appeo[ ntust inuolue substantial questions of lau-t.

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In other uords, the appeal prouid-ed under Section 3O 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 Ciuil Procedure, 1908 tuhich can be heard both on facts and lanL. The oppellate^juisdiction of the High Court to decide the appeal is confi.ned onlg to examtne the substantial questiotTs of latu aising in the case."

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'1zot9ytrsccsra

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()

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In vieu' of the principlc laid down in the zrboi'c saicl authority, it is clear that the above conLenti( )n o[ thc appellant - insurance company is not based on a cluestron ol Iaw but it rs purely a question of fact, which cannor br, r-aisccl belore this Court as per Section 30 o[ the Wo:kmen's Conlpensation Act.

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Under these circumstances, this Court is of thc considered opinion that the Commissioner, aftcr considcrrng all thc aspects, has rightly came to thc conclusion in at arclins compensation to the applicants. Thus, this Couri is not inclined to interfere u,ith the findings ol the Commissi,xc r'.

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I8. At this Juncture, learned counsel for the applicants raised an objection about the maintainability of rhe appeal itself. He further contended that according to the^proviso Section 30(i) of trmployees' Compensation Act, 1923 no appeal by an employer under clause (a) shall lie u nless the memorandum of appeal accompanied by a ccrtificate by thc Commissioner to the effect that the appellant has depositcd with him the amount payable under Order.

N{GP..l cMA 320²⁰¹⁴

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According lo Section^{3O of En'rplo-yees'Compensation Act'} 1923 there is a bar^{of registralion ol appeal in casc of failure of} appellant for depositing^{amountordered For r:onvc-nientsake} Section 30 of^{EmployeesCompensationAct, 1923 is extracted} hereunder

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Section 3O of Employees'^{Compensa\ion Act' 1923} : Appeals.-⁽¹⁾ An^{appeatshttll Lie to the HighCourt} from^the foltou,,ing^{ordersof aCommissioner,} namelg: - (a) an order^{autardingas compensaton} o lump sum l.Dhetller^{by uay of redempttonof a} hatfmontttty^{paAmetTt or otheruiseor disal\outincla} cloim in futl or in^port for^{a lumpsurn; (arL) an} ord-er anuarding^{interest or penalty undersection} 4A; (b) an ord.er refusing^{to allottt redempti<ntof,a} hotfmonthlg^{pagment;(c) an order prouiding} fot^the di.stnbution .f compensation among^the d.epend.ants of a^{deceased.[en'Lplogee] or} diiallowing ong^{cloimof a pe-rsonalleginghimself} to be suclt dependant;^{(d) on order aLlouing or} disallottting ang^claim for^{the amount of an} indemnitg under^{the prouisions of sub section(2) of} section 12; or^{(e) an order refusing to registera} memorandum of^{agreement or registering the sa'tte} or prouiding for^{the regisLration of the satne subject} to cond-itions: Prouided^{thot no appeal shalLlie} agoirt-st ang order^{unLesso substantial question of} lint is inuoiued^{in the appectl, and in tlrc ca'se of an} order other than^{an order such as ls referred to in} ctause (b), unLess^{the amountin disputein the} oppeal is not less^{than **ten tLLousctndrltpees or} such ttigher amourlt^{os the CentralGouemrnent} may, bg notificotion in^{the Offcia[ Gazette,s.pectfg} : Prouided further^{that no appeal shctll lie in any} cose in ttthich^{the parties haue agreedto abidebg} the decision of the^{Commissioner,or in which the} order of the Commissioner^{giues effectto an} agreemint come to^{bg the parties: Prouided} further tiat no oppeot bg^{an emploger underclause(a)} shatt lie inless the^{memorandumof ct'ppeat is} accompanied bA a certifcote^{bg the Commissioner} to the effect that tLrc appellont^{ho,s deposited Luith} him thi amount pagabte^{underthe orderappealed} * - against. (2) 'the period of limitation for an appeol

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MGP,J c'1,.llrj,.t0t.l

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under this sec|ion^{shc"ll be sLtty dags(3) The} prouisions of section 5 of the Limitation^{Act, 1963} (36 of t 963)1, shatl be applicable^to appeals^under this section.

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[n view of^{proviso referredabove,no appeai shall lie in} casc of failure of the amount^{payable under Orcler bv the} aggrieved party. The record^{shows that the appellant/ Insurance} Company lailed to deposit the compensation^amountu'ilh interest within the stipulated time,^{thereby the appeerlshall not} be registered as such the Civil Miscellaneous^{Appealalso [able} to be dismissed.

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2L. Accordrngly, the Civil Miscellaneous^{Appeal is dismissed} There shall be no order as to costs.

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Pending Miscellaneous applications, if^{any, shall stand}

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closed

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Sdi. K. SRINIVASA RAO JOINT REGISTRAR //TRUE COPY// it

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S ECTIONYOFFICER

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To,