Telangana High Court
M/S. Shriram General Insurance Company ... vs Smt D.Laxmi And 3 Others on 8 January, 2024
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
CIVIL MISCELLANEOUS APPEAL No.928 of 2013
JUDGMENT:
1. The present Civil Miscellaneous Appeal has been directed against order dated 29.07.2013 in W.C.No.94 of 2010 on the file of the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-IV, Hyderabad, (hereinafter referred to as 'the Commissioner'). The said case was filed by respondent Nos.1 to 3 herein seeking compensation for death of one D. Krishna (hereinafter referred to as 'deceased') in an accident that occurred on 04.08.2010 and the same was allowed by the Commissioner granting compensation of Rs.5,14,655/-. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed at the instance of opposite party No.2 before the Commissioner i.e., the insurance company.
2. The appellant herein is opposite party No.2, respondent Nos.1 to 3 herein are applicants and respondent No.4 herein is opposite party No.1 before the Commissioner. For the sake of convenience, the parties are hereinafter referred to as they were arrayed before the Commissioner.
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3. The brief facts of the case of the applicants are that the deceased was working as driver on auto bearing No.AP 09 Y 1814 under the employment of opposite party No.1. On 04.08.2010, on the instructions of opposite party No.1, the deceased was driving the said auto from Habsiguda to M.K.Nagar and on the way at about 10:30 AM, the auto turned turtle, due to which the deceased as well as the other inmates of the auto fell down on ground. As a result of the said accident, the deceased sustained injuries and died on the spot. In this regard, a case was registered in Crime No.231 of 2010 under Section 304-A of the Indian Penal Code, 1860.
4. It is the further case of the applicants that the accident occurred during the course and out of employment of the deceased under opposite party No.1. The deceased was aged about 27 years and was being paid an amount of Rs.4,500/- per month towards wages and Rs.50/- per day towards batta as on the date of the accident. The auto bearing No.AP 09 Y 1814 involved in the accident was owned by opposite party No.1 and was insured with opposite party No.2. Further, as on the date of the accident, the said auto was having valid insurance policy. 3
MGP,J CMA_928_2013 Hence, the applicants filed the present claim petition seeking compensation.
5. Initially, on service of notice opposite party No.1 did not appear before the Commissioner and as such, he was set ex parte. However, after the matter was reserved for orders, opposite party No.1 appeared before the Commissioner by way of a petition seeking to reopen the matter. The said petition was allowed and the matter was reopened. Then, opposite party No.1 filed his counter admitting age, wages, batta and death of the deceased in the said accident. He also stated that the deceased died during the course and out of his employment under opposite party No.1. The auto involved in the accident was having valid insurance policy, as such opposite party No.2 alone is liable to pay compensation for death of the deceased. Hence, prayed to dismiss case against him.
6. Opposite party No.2 filed its counter and additional counter denying the averments of the claim application such as age, wages, employment of the deceased and also the manner of the accident. It is contended by opposite party No.2 that the deceased being polio affected physically handicapped person was not having 4 MGP,J CMA_928_2013 driving license and he voluntarily took the auto for a joy ride in a fully drunken condition, as such accident occurred. It is further contended that the deceased along with his relatives went to attend a death ceremony of his relative and while returning to home, the accident occurred. Hence, the accident did not occur during the course and out of employment of the deceased under opposite party No.1, as such opposite party No.2 is not liable to pay any compensation. According to opposite party No.2, the deceased was physically handicapped person and he had no valid driving license as on the date of the accident. Therefore, prayed to dismiss the claim petition.
7. In support of their case, the applicants got examined A.Ws.1 to 3 and got marked Exs.A-1 to A-4. Opposite party No.1 was got examined as R.W.3, but no documents were marked on his behalf. Opposite party No.2 got examined R.Ws.1 and 2 and got marked Exs.B-1 to B-3 and for Commissioner Ex.C-1 was got marked.
8. On the basis of the above pleadings and evidence, the Commissioner framed the following issues:
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MGP,J CMA_928_2013 "1. Whether the deceased was an employee within the meaning of the Act?
2. Whether the deceased died due to the injuries sustained in an accident that arose out of and in the course of employment?
3. If yes, who are liable to pay compensation to the dependents of the deceased?
4. What is the quantum of compensation entitled by the dependants of the deceased?"
9. After considering the evidence and documents filed by both sides, the Commissioner awarded an amount of Rs.5,14,655/- towards compensation to the applicants. Aggrieved by the same, the present appeal is filed by opposite party No.2.
10. Heard both sides.
11. Learned counsel for the appellant/opposite party No.2 contended that the Commissioner erred in holding that the deceased was employed under opposite party No.1 and that there was no employee and employer relationship between them. It is also contended that the deceased was not having valid and effective driving license to drive the vehicle involved in the accident as he was polio affected. Hence, prayed to allow the appeal and set aside the impugned order passed by the Commissioner. 6
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12. Per contra, the learned counsel for the applicants/respondent Nos.1 to 3 contended that the Commissioner after considering all the aspects has awarded reasonable compensation and interference of this Court is unnecessary.
13. Now, the point for determination is as follows:
"Whether the applicants are entitled for the compensation as granted by the Commissioner?"
Point:-
14. This Court has perused the entire evidence and documents placed on record by both the parties. Applicant No.1 was examined as A.W.1 reiterating the contents of the claim application and in support of the case of the applicants she got marked Exs.A-1 to A-4. In the cross-examination, she stated that the auto was owned by one Mr. Chandra Shaker and she does not know where said Chandra Shaker resides. She also deposed that the right leg of the deceased was polio affected and the leg is totally disabled. She also stated that her husband took the auto which was involved in the accident from someone and while returning from a function, the accident occurred. She accepted 7 MGP,J CMA_928_2013 that her husband had no valid and effective driving license to drive auto rickshaw. She accepted that she has not filed any document to show the employment details of the deceased under opposite party No.1. On the other hand, she denied that her husband was aged more than 40 years as on the date of accident. She also stated that she does not know whether her deceased husband was competent to drive auto and she denied that the deceased was incompetent to drive auto.
15. The applicants also got examined applicant No.3 as A.W.2. A.W.2 also reiterated the contents of the claim application and she further deposed that A.W.1 is not world wise and she is innocent. In the cross-examination of A.W.2, she denied that in order to cover up the evidence of A.W.1, she is being examined. She also denied that A.W.1 knows all the facts about the deceased. A.W.2 also denied that the deceased, who is her son, is a polio patient and his two legs were not functioning. She accepted that she has not filed any employment and wage proof of her deceased son.
16. After closing the evidence of the applicants, one Mr. B.A.L.N. Hari Krishna, who is legal officer of opposite party No.2, was examined as R.W.1. He reiterated the contents of the counter and 8 MGP,J CMA_928_2013 additional counter filed by opposite party No.2. He further deposed that the driving license filed by the applicants under Ex.A-3 is fake as per the endorsement made by the Additional Licensing Authority, RTA, Hyderabad East Zone, wherein it is stated that the said license was not issued by the office. In support of the case of opposite party No.2, R.W.1 got marked Exs.B-1 to B-3. In the cross-examination, he deposed that he has no personal knowledge about the accident and he is deposing based on the record. He categorically denied the age, occupation, wages, driving license and employee and employer relationship between the deceased and opposite party No.1.
17. Opposite party No.2 also got examined R.W.2, who is Junior Assistant from the office of the RTA, Hyderabad East Zone. He deposed that the driving license No.296/HE/2000, dated 05.07.2000 i.e., Ex.A-3/B-3 was not issued by his office. He also got marked Ex.C-1, which is authorization letter. In his cross- examination, he deposed that he is deposing purely based on record. He accepted that the endorsement under Ex.B-2 does not contain his signature. He also stated that the competent authority to issue driving license was Regional Transport Officer. 9
MGP,J CMA_928_2013 He denied the suggestion that he was deposing false to help opposite party No.2.
18. Subsequently, after closing the evidence of both the sides, the matter was re-opened before the Commissioner and counter was filed by opposite party No.1. Opposite party No.1 also filed his evidence affidavit and got examined himself as R.W.3. He supported the case of the applicants with regard to employment, wages and age of the deceased and also the occurrence of the accident. He stated that the auto involved in the accident was owned by him and insured with opposite party No.2 under valid insurance policy. Hence, opposite party No.2 alone is liable to pay compensation for the death of the deceased. In the cross- examination, R.W.3 stated that the deceased was working under him as on the date of the accident and that he was having valid driving license. He deposed that he did not receive summons from the Commissioner and he did not know about publication of notice in the newspaper. He stated that he sold out the vehicle involved in the accident and handed over the documents to the purchaser. He stated that he does not know about the said Chandra Shaker, about whom A.W.1 deposed in her evidence. He 10 MGP,J CMA_928_2013 denied the suggestion that one Chandra Shaker was owner of the vehicle. He denied the suggestion that the deceased was polio affected person and he was not having valid driving license.
19. It is pertinent to state that Ex.A-1 copy of FIR and Ex.A-2 copy of inquest report coupled with evidence of A.Ws.1 and 2 clearly establish the occurrence of the accident and death of the deceased in the said accident on 04.08.2010. Admittedly, there is no serious dispute by both the sides with regard to occurrence of the accident and death of the deceased. The main dispute is with regard to employee and employer relationship between the deceased and opposite party No.1 and death of the deceased during the course and out of his employment under opposite party No.1 and also the ownership of opposite party No.1 on the vehicle involved in the accident.
20. Admittedly, in the cross-examination of A.W.1 she stated that one Chandra Shaker is owner of the auto involved in the accident and she also stated that she does not know any details about said Chandra Shaker. Opposite party No.1 was examined as R.W.3 and he clearly deposed that he is the owner of the auto involved in the accident and that the deceased was employed 11 MGP,J CMA_928_2013 under him and died during the course and out of his employment. No documentary evidence was produced by the applicants to prove that opposite party No.1 is owner of the vehicle. However, Ex.B-1 insurance policy clearly shows that opposite party No.1 is the owner of the auto involved in the accident. The evidence of R.W.3 coupled with Ex.B-1 clearly establishes ownership of opposite party No.1 on the auto bearing No.AP 09 Y 1814. Opposite party No.2 simply relied upon the statement of A.W.1 in the cross- examination that the auto was owned by one Chandra Shaker and it has not taken any steps to examine said Chandra Shaker or produce any registration certificate of the auto to show that the said auto was not owned by opposite party No.1. Admittedly, there are contrary versions in the evidence of A.W.1 and as such, the Commissioner discarded such evidence and relied upon the evidence of A.W.2 and R.W.3 and rightly came to the conclusion with regard to ownership of the vehicle. It is also pertinent to state that A.W.2 has categorically stated that A.W.1 is not world wise and innocent woman. Hence, the contention of the opposite party No.2 that opposite party No.1 was not the owner of the vehicle is unsustainable.
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21. A perusal of Ex.A-1 copy of FIR and Ex.A-2 copy of inquest report discloses the occupation of the deceased as auto driver. Further, the evidence of R.W.3 clearly shows that the deceased was working under him as auto driver and was being paid an amount of Rs.4,500/- per month towards wages and Rs.50/- per day towards batha. The ownership of the opposite party No.1 is established from the evidence on record. No contrary evidence has been placed on record by opposite party No.2 to disprove the employment of the deceased under opposite party No.1. In the said circumstances, the Commissioner rightly came to the conclusion based on the evidence of the applicants and opposite party No.1 that the applicants clearly established the employee and employer relationship of the deceased and opposite party No.1 and that the accident occurred during the course and out of employment of the deceased under opposite party No.1. However, it is contended by opposite party No.2 that the deceased was using the vehicle for his personal use as on the date of the accident as he was returning along with his relatives after attending death ceremony of one of his relative. Hence, the terms and conditions of the insurance policy are breached. The Commissioner after considering the evidence on record held that there is no bar that 13 MGP,J CMA_928_2013 the deceased being the driver of the said auto shall not carry his relatives and there is no evidence to show that the deceased has not taken any hire charges from his relatives. Admittedly, as per FIR, as on the date of the accident, the deceased was returning from a funeral along with his relatives and the accident occurred. However, in the cross-examination of R.W.3, he clearly denied the suggestion that the deceased was using the vehicle for his personal use as on the date of the accident. Therefore, it is clear that the deceased was employed under opposite party No.1 and the accident occurred during the course and out of his employment under opposite party No.1. Hence, the contention of the learned counsel for the appellant/opposite party No.2 that the Commissioner erred in holding that the deceased was employed under opposite party No.1 and that there was no employee and employer relationship between them is unsustainable.
22. Coming to the contention of the learned counsel for opposite party No.2 that the deceased was polio affected and was not having valid driving license, admittedly, A.W.1 in her cross- examination stated that her husband was polio affected. The cross-examination of A.W.1 shows that she stated different 14 MGP,J CMA_928_2013 versions. At one stage, she says that her husband is polio affected and he is not having driving license and at another stage, she denied the suggestion that the deceased was incompetent to drive auto. However, the evidence of A.W.2 shows that A.W.1 is not world wise and innocent. As there are discrepancies in the evidence of the A.W.1 and as A.W.2 contended that A.W.1 is not in sound mind, the Commissioner has not considered the evidence of A.W.1. Admittedly, except placing reliance on the statement of A.W.1, no oral or documentary evidence is placed on record by opposite party No.2 to prove that the deceased was polio affected. In the said circumstances, this Court is of the considered opinion that in the absence of contrary evidence, the Commissioner rightly came to the conclusion that the deceased was not affected with polio. Furthermore, when two views are possible, the view that is beneficial to the applicants has to be taken, since the Employees' Compensation Act, 1923, is a beneficial legislation meant to protect the interest of employees and workers.
23. Learned counsel for the appellant/opposite party No.2 contended that the deceased was not having valid and effective driving license to drive the vehicle involved in the accident. The 15 MGP,J CMA_928_2013 applicants have relied upon Ex.A-3 copy of driving license of the deceased. On the other hand, opposite party No.2 contending that the driving license under Ex.A-3 is fake got examined R.W.2, who is Junior Assistant from the office of RTA, Hyderabad East Zone. The evidence of R.W.2 shows that the driving license No.296/HE/2000, dated 05.07.2000 i.e., Ex.A-3/B-3 was not issued by his office. However, opposite party No.1, who is the employer of the deceased clearly admitted in his evidence as R.W.3 that the deceased was holding valid driving license as on the date of accident.
24. It is pertinent to state that, even for the sake of arguments if we accept the contention of the learned counsel for opposite party No.2 as true, mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties.
25. It is also pertinent to state that the claim of the applicants is filed under the provisions of the Employees' Compensation Act, 1923, which do not mandate that if a driver is employed, he should possess valid license as is required in terms of the 16 MGP,J CMA_928_2013 mandate of the Motor Vehicles Act, 1939. However, in the case on hand, opposite party No.1 clearly admitted that the deceased was having a valid driving license as on the date of the accident. Moreover, the policy conditions regarding driver not holding valid and effective driving license at the time of accident cannot be considered as fundamental breach that had contributed to the cause of the accident to discharge the appellant from the liability.
26. Furthermore, though, opposite party No.2 got examined R.W.2 in support of their contention that the deceased was not holding valid driving license, the evidence of R.W.2 does not show that the driving license was fake. In fact, R.W.2 only stated that the driving license under Ex.A-3/B-3 was not issued by his office. It is also pertinent to note as per Ex.A-1 copy of FIR, Crime No.231 of 2010 on the file of Osmania University Police Station was registered only under Section304-A of the Indian Penal Code, 1860 and no offence was registered under Section 181 of the Motor Vehicle Act, 1988. If, the deceased was not holding valid driving license, the police would have registered case under Section 181 of the Motor Vehicle Act, 1988 also. Hence, this Court is of the considered opinion that the Commissioner rightly 17 MGP,J CMA_928_2013 came to the conclusion that the deceased was holding valid driving license as on the date of accident and interference of this Court into the said findings is unwarranted.
27. Coming to other findings of the Commissioner, this Court is of the opinion that the Commissioner after considering the evidence on record rightly determined the compensation and interference of this Court is unwarranted. The appeal is devoid of merits and the same is liable to be dismissed.
28. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order dated order dated 29.07.2013 in W.C.No.94 of 2010 on the file of the Commissioner for Employees' Compensation and Assistant Commissioner of Labour-IV, Hyderabad. There shall be no order as to costs. Miscellaneous applications, if any pending, shall stand closed.
______________________________ JUSTICE M.G.PRIYADARSINI Date: 08.01.2024 GVR