Dismissed

The National Insurance Company Limited v. Smt. Masaipeta Jayamma and 5 Others

Telangana HC17 Nov 2023CMA/459/2009

Case brief

AI extract

What is this about?

In this appeal under Section 30 of the Workmen's Compensation Act, 1923, the National Insurance Company challenged an award by the Commissioner granting compensation to the deceased employee's heirs. The Court held that the dispute regarding liability was a question of fact and denied the appellant leave to appeal, dismissing the Civil Miscellaneous Appeal.

What did the court decide?

Civil Miscellaneous Appeal is dismissed. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.

The National Insurance Company Limited Vs Smt. Masaipeta Jayamma and 5 Others — Telangana HC (2023) — LawSathi Research

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IN Betw	THEHIGH COURT FOR THESTATEOfTELANGANA AT HYDERABAD FRIDAY,THESEVENTEENTH DAY OF NOVEMBER TWOTIiOUSANDAND TWENTY THREE PRESENT THE HONOURABLESMTJUSTICE M.G.PRIYADARSINI CIVIL MISCELLANEOUS PEALNO: 459 OF20Og een:
T Di AND	HENATIONALINSURANCECOMPANY LIM
1. 2.	SMT. MASAIPETA JAYAMMA,Wo.LateSriMasaipeta Ramutu,Housewife Rl/o.H.No. 2-2+110311O9,L N.Colony,Uppat, Ranga Reddy District. BabyMasaipeta Rekha,D/o. LateSriMasaipeta Ramulu,Minor rep.by Motheri.e.,RespondentNo.1Rl/o.H.No.2-24-103/109,L.N.Colony,Uppal, Ranga Reddy District.
3. 4. 5. 6. pass Comm	Smt. Masaipeta Yellamma,Wo.SriM.RajamaltuLabourer R/o.H.No.2-24- 103/109,L.N.Colony,Uppal, Ranga Reddy District. SriMasaipetaRajammalu,, S/o. Late Sri M. Durgaiah Labourer R/o.H.No. 2- 24-1103/109,L.N.Colony,Uppal, Ranga Reddy District. Sri N.Venkat RamReddy (Major),S/o. SriN_Ranga Reddy, AgricutturistRl/o. H.No.1-4,VenkataRatnapuram,ToopranMandat, MedakDistrict. T. Bheem Singh(Major),Rl/o.Chinna Bhoweenpally, Warangat District. (AppealagainstRR-1,3 & 4, whichwasDismissed per default vide courtorder datd131412016,wasrestored tofilevidecourt order dated1111112023in l.A. No.2of2023) ...RESPONDENTS Appeal Under Seclion 30 Workmen's compensation Act against the order edbytheCommissionerforWorkmen's CompensationandAssistant issionerof Labour-ll atHyderabad in W.C. No.39of2005 dated 3.07.2008.
l.AN in the staya Comm RTC C	O:2OF2009(CMAMP.NO:879 OF 2009) Petition under Section 151 CPC prayingthatinthe circumstancesstated affidavit filedinsupportofthepetition, the High Court may bepteased to llfurtherproceedingsinW.c.No. 39/2005dt.3-7-2008onthefiteofthe issionerand AssistantcommissionerofLabour-ll,SamkshemaBhavan, ross Roads,AtHyd€rabad pending disposalofthe aboveappeal.

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Counsel for the Appellant: MS. M BHASKARA LAKSHMI

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Counsel for the Respondents:

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The Court made the following: JUDGMENT

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THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

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C L MISCELLANEOUS APPEAL No. 459 of 2OQ9

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JUDGMENT:

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Aggrieved by the order dated 03.07.2008 in W.C.Case No.^'gS of 2O05 passed by the Comrnissioner for Workmen's Compensation and Assistant Commissioner of l-abour{I, Hyderabad, the opposite party No. 3/Insurance Company has filed the present Civil Miscellaneous Appeal.

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For the sakc of convenience, hereinafter, the parties will be referrcd as per their array before the Commissioner.

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The brie[ facts of the case are that the applicants who are wi[c, daughtcr and parents of Late Masaipeta Ramulu (hcreinafter relerred as 'rhe deceased) have filed an application under thc provisions of Dmployees' Compensation Act, I923 [for short 'tlre Act') claiming compensation of Rs.4,00,0OO/- for the death of the dcceased in the accident that occurred on 2 I.01.2OO5. lr is srared that on the fateful day, upon instructions of opposite party No. 1, employer, the deceased was procceding as u.orkmen on the tractor and trailer bearing Nos. AP 36F 536 I ancl AP 361? 5362 towards Venkata Ratnapur village after unloading thc sugar cane at the Narsapur Sugar

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Factory. When the said tractor and trailer reached near TATA coffee factor at Br.ahmanapally village, the driver of the said tractor and trailer drove the vehicle in a rash and negligent manner at high speed and lost control over the vehicle, due to which, the said tractor and trailer turned turtle. As a result, the deceased succumbed to the grievous injuries on the spot. Based on the complaint, the Police, Toopran police Station, registered a case in Crime No. 11 of 2005 under Scction 304(A) of IpC. According to the applicants, the deceased was aged about 25 years and used to earn wages of Rs.3,OOO/ - per month as workmen under the employment of oppositc party No. I and used to contribute his entire earnings for the welfare o[ the family. Due to the sudden demise of the deceased, the applicants lost their only bread winner besides love and affection. Hence, the applicants have hled the application claiming compensation of Rs.4,OO,000/- against the opposite party Nos.l to 3, who are jointly and severally liablc to pay rhe compcnsation.

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Before the Commissioner, the opposite parry No. I fitcd counter admitting that the deceased was employed under him as ',r'orkmen on the said tractor and trailer and died while performing his duties. He further stated that the said tractor

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and trailer was^{insuredwith oppositeparty No' 3'Hence'} prayed to dismiss^{the application against him' On the other} hand, the^{opposite party No' 3, appellantherein' Iiledcounter} denying the^{avermentsof the applicationsuchas employee-} employer^{relationship, salary,age of the deceasedand manner} of accident.^{He furthercontended that unless and until itis} proved that the^{deceaseddied during the course ofhis} employment^{and the driver of the said tractorand trailerwas} having valid^{and effective driving licence, theInsurance} Companf is^{not liable to pay t]re compensation'He lastly} contended that^{claim is excessive and exorbitantand prayed to} dismiss the^aPPlication

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On behall^{of the applicants, AWs land 2 were examined} and Exs.A. I^{Lo A.7 were markcd.Ex A' 1 is the certifiedcopy of} FIR, Ex.A.2^{is the certifiedcopyof chargesheet, Ex'A'3 is the} certilred copy of^{inquest report, Ex.A'4 is the certifred copyof} postmortem examination^{report, Ex.A 5 is the scene of offence} panchanama, Ex.A.6^{is the photostat copy of insurancepolicy} and Ex.A.7^{is the photostat copyof RC of the vehicle'On behalf} of opposite^{partv No. i, RW I u'as examined and Exs'B'lto B'3} were marked. Ex.B. I^{is the photostat copy of insurancepolicy,} Ex.B.2 is the^{photostat copy ol RC book of the vehicleand}

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Ex.B.3 is the photostat copy of driving licence. On behalf of opposite party No. 3, RW. 2 was examined and Exs.B.4 and B.S were marked. Ex.B.4 is the terms and conditions of insurance policy and Ex.B.S is the insurance policy.

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The Commissioner after considering the evidence on record, both oral and documentary, by determining the wages of deceased as Rs.2,320.5O per month, by applying the factor '216.91' for the age of applicant being 25 years, has awarded compensation of Rs.5,52,674/ -.

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Aggrieved by the compensation a,,r,arded by the Commissioner, the opposite party No. 3/lnsurance Company has filed the present appeal to set aside the impugned order.

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Despite service of notice, none appeared on behalf of applicants. Hence, heard leamed Standing Counsel for the appellant and perused the record.

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The main contention of learned Standing Counsel for the opposite party No. 3/lnsurance Company is that though the insurance policy under Ex.B.S is subsisting as on the date of the accident, thc policy does not cover the risk of the deceased, as no additional premium was paid by the opposite party No. I

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to cover the risk of the^{deceasedand prayed to dismiss the} application against^them

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This Court has^perused the entire^{record and found that} the applicant No. I was examined as AW. I and^reiterated the averments of the apptication in her chief examination. She deposed that his deceased husband was working as labourer under the employment of opposite party No. 1, employer and succumbed to the grievous injuries during and in the course of her employment with opposite party No. 1. In support of her claim, she got examined AW.2, eye witness to the accident. AW. 2, in his chief examination, deposed that he was eye witness to the accident and the deceased died while discharging his duties on the said tractor and trailer under the employment of opposite party No. 1. Though AWs. 1 and 2 were cross examined at length, nothing adverse was elicited to discredit their evidence.

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On behall of opposite party No. 3, its administrative officer, was examined as RW.2 and Ex.B.4, terms and conditions of insurance policy and Ex.B.S, insurance policy, were marked. A pcrusal of Dxs.B.4 and B.5 makes it abundantly clear that Rs.25/ - u,as paid ro cover the risk one employee. Further, RW. I in his cross examination, admitted that on the

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date of accident, the policy of the said tractor and trailer was in force. However, except stating that the policy does not cover the risk of the deceased, the opposite party No. 3 has not evinced any cogent evidence to prove the same.

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In Oriental Insurance Company Limited v. Meena Variyal and othersr, the Honourable Supreme Court observed as under:

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"Uninfluenced by authoities, u.te find. no dtffianlty in understanding this proui-sion as one prouiding that the policg must insure an otaner against ang liabilitg to a third partg coused bg or arising out of the use of the uehicle in a public place, and against death or bodilg injury to any passenger of a public seruice uehicle coused bg or arising out of the use of uehicle in a public place. The prouiso clariftes that the policy shall not be required to couer an employee of tle insured bt respect of bodily injury or death aising out of and in tLrc course of his emplogment. Tten, an exception is prouided to the lost foregoing to the effect that the policy must couer a liabilitg arising under tLe Workmen's Compensation Act, 1923 in respect of the death or bodilg injury to an emplogee utho is engaged in diuing the uehicle or u.tho sentes as a conductor in a public seruice uehicle or an employee uho trauels in tLLe uehicle of ttte emploger carrying good.s if it is a good.s carriage. Section 149(1), tohich casts an obligation on an insurer to satisfg an outard, also speaks only of auard in respect of such liobilitg as is required to be couered by a policg under clause (b) of subsection (1) of Section 147 (being a liability couered blt the terms of the policg). Thi.s prouision cannot therefore be used to enlarge tlrc liability if it does ,7ot exist in terms of kction 147

I (2007) 5 SCC 428

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of the Act. 14. The object of tle insistence on insurance under Chapter XI of the Act thus seems t9 b.e to compulsoilg couer the liability relating to their person or properties of third. parti"s oni in :t!.?."t^of .emplogees^{of the insured.emploger, the} Iiabilitg thot may arise und"er tlrc Woikmen,s Compensation Act, j923 in respect of the rlriuer, th.e conductor and the one canried'in a good_s ye hicle carry ing g o od s. "

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In National Insurance Company Limited v. prembai Patel aud others2, the Honourable Supreme Court held as under:

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"15. Tlwuqh the aforesaid decision has been ,:!*r:d on Sectton 9Sl2) of the Motor Vehictes Act, 1939. but the pinciple underltlinq therein tai A" fuiig applicable h.ere also_ It is thus clear that in cose til ouner of the uehicle uants the tiabititu of the ,!:rro:n compa.nu in respect of death ot o, Loaiii tlvurU to any such emploqee as is descibed in clcruses (a) o! (b) or (c) of proutso (i) to Section t 47J t l(b) should not be resticted to that ""a", tn"i"*iJE irt- Ai should be more or unlimited, he must take suci-i ooltgv bu makinq pasment of ertro premlum "ii inl poticu sltould also contain a clause to that effect. fgyg.y.l^{ruhere the pot[cq mentions "a poticu} fo,, ect Liability" or "Act Liabilitu", the tiabititu of in" i"""r""i. ?"rp?!U^{quathe emploqeesas aforesaid utoultJ} not be unlimited but uould be timited to nat aasing uniii tle Workmen's Act."

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In view of the above discussion and principal laid down by the Apex Court, since the dcceased is not a gratuitous passenger and as the deceased is an employee rendering his services to the opposite party No. I under emplo-vce-employer relationship, the contention of rhe rearncd Standing counser for , AIR 2005 sc 2337

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the opposite party No. 3 that the policy does not cover the iisk of the deceased, in view of non-payment of additional premium, is unsustainable. It is pertinent to note that the premium of Rs.25/- was paid to cover the risk of one employee under tlle Act and the word 'employee' includes all categories of workers. Therefore, the opposite party No. 3 cannot escape its liability on the ground that the additional premium was not paid to cover the risk of the deceased and is liable to indemniS the opposite party No. l, employer i.e., owner of the said tractor and trailer.

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Though several grounds were raised by the learned Standing Counsel for the appellant/ insurance company, it appears that most of such grounds are based on question of fact but not on question of law, more particularly, when the opposite party No. 3 failcd to establish that there are errors apparent on the face of the record. The Honourable Supreme Court in North

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East Karaataka Road Transport Corporation v. Sujathas held

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as under:

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"9. At the outset, ue maA take note of the fact, being a setlled pinciple, that the question as to uhether the emplogee met Luith an accident, whether the accident occurred dunng the course of emplogment, uhether il arose out of an emplogment, hou.t and in uhat manner the accident occurred., taho uas negllgent in causing the accident, whetler th.ere existed any relation ship of emplogee and emploger,

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Luhat u)as the age and monthly salary of the emplogee, houL mang are the dependents of the deceased. emplogee, the ertent of disabilitg caused to the entploAee due to injuries suflered in an accident, whether there uas ang in surance couerage obtained bg the emploger to couer the incident etc. are some of the material issues u.thich arise for the just decision of the Commi.ssioner in a claim petition when on employee sulfers ang bodilg injury or dies during the course of his emplogment and he/ his LRs suels/ his emploger to cloim compensation under the Act.

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TtE aforementioned questions are essentiallg the Elestions of fact and therefore, theA are required to be proued uith the aid of euidence. Once theg are proued either way, the findings record.ed. thereon are regarded as the findings of fact.

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The appeal prouided under Section 3O of the Act to tle High Court against the ord.er of the Commissioner lies onlg againsl the specific ord.ers set out in clauses (a) to (e) of Section 3O of the Act tuittt a further^{rid.er antained} in the first^proviso to the section that the appeal must inuolue substantial questions of la ut.

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In other words, tLLe appeal prouided under Section 3O of the Act to the High Court against the order of the Commissioner is not like a regtlar first appeal akin to Section 96 of the Code of Ciuil Procedure, 19O8 which can be heard both on Iacts and laut. The oppellate jurisdiction of the High Court to decide the appeal is confined onlA to examine the substantial questions of latu aising in the case."

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In view of the principle laid down in the above said authority, it is clear that the above contention of the appellant/ insurance company is nor based on a question of law but it is purely a question of fact, which cannor be raised before this Court as per Section 30 of thc Workmen's Compcnsation Act.

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Under these circumstances, this Court is of .the considered opinion that the Commissioner, after considering all the aspects, has rightly came to the conclusion in awarding compensation to the appricants. Thus, this court is not inclined to interfere with the findings of the Commissioner and the Civil Miscellaneous Appeal is also liable to be dismissed.

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Accordingly, 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 closed.

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Sd/. B.S. CHIRANJEEVI JoTNTREGVfuR //TRUE COPY// SECTION OFFICER To, 1 . The Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-ll Taks Bhavan RTC Cross Road (with records) 2 One CC to Ms. M BHASKARA LAKSHMT Advocate [OPUC] 3 Two CD Copies

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