Telangana High Court
United India Insurance Co Ltd vs Nalgonda Yadagiri And Anr on 13 July, 2023
THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.995 OF 2012
JUDGMENT:
Aggrieved by the order dated 17.05.2005 in W.C.Case No.568 of 2003 (NF) passed by the learned Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Nizamabad, the opposite party No.2/insurance company has filed the present Civil Miscellaneous Appeal.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned Assistant Commissioner.
3. The brief facts of the case are that the applicant has filed an application under the provisions of Workmen's Compensation Act, 1923 (amended as Employee's Compensation Act, 1923) claiming compensation of Rs.5,00,000/- alleging that as on the date of alleged accident, he was aged about 38 years, working as labour on Lorry bearing No. AP 16 T 1516 under the employment of opposite party No.1 on a monthly salary of Rs.5,000/-. On 19.08.2003, on the instructions of opposite party No.1, while the applicant in discharge his duties as labour was travelling on the said lorry, from Nizamabad side towards Gundaram-Shastry nagar village, 2 MGP,J CMA_995_2012 and when the lorry reached near Gundaram X Roads, Jannepally road, at about 9.00 PM, the driver of the lorry lost control over the lorry, due to which the applicant along with other labouerers of the lorry sustained grievous injuries. The applicant sustained fracture of both bones of right leg, fracture of right hand, grievous injury on temporal area, fracture of ribs, fracture of skull and other multiple and grievous injuries on face and all over the body. Immediately, the applicant was shifted to Government Headquarters Hospital, Nizamabad and from there he was referred to Gandhi Hospital, Secunderabad. A case in Crime No.166/2003 of Nizamabad Rural Police Station was registered under Section 338 of the Indian Penal Code. The applicant underwent several major operations and steel rods were inserted in his right leg and he was treated as inpatient. The applicant incurred Rs.2 lakhs towards medical expenses and extra nourishment. The said lorry belonging to the opposite party No.1 was insured with opposite party No.2, thereby, opposite party Nos.1 and 2 are jointly and severally liable to pay the compensation amount of Rs.5,00,000/-
4. Inspite of notice, the opposite party No.1, failed to file his counter and thereby he was set ex-parte and whereas the opposite party No.2 filed counter denying the averments of the 3 MGP,J CMA_995_2012 application including age, wages of the applicant as labour under opposite party No.1, manner of accident, driving license of the driver and finally prayed to dismiss the application.
5. On behalf of the applicant, PWs 1 and 2 were examined and Exs.A1 to A6 were marked. Exs.A1 to A3 are the certified copies of FIR, charge sheet and injury certificate, Ex.A4 is the Photostat copy of insurance policy, Ex.A5 is the disability certificate issued by PW2. On behalf of opposite party No. 2, RW1 was examined and Ex.B1 copy of insurance policy was marked. The learned Assistant Commissioner after considering the evidence on record, both oral and documentary, by fixing the loss of earning capacity @ 55% and percentage of disability @ 60%, by determining the wages of applicant as Rs.1,800/- per month and by applying the factor '184.17' for the age of injured being 40 years, has awarded compensation of Rs.79,561/-.
6. Aggrieved by the quantum of compensation awarded by the learned Assistant Commissioner, the opposite party No. 2 / insurance company has filed the present appeal to set aside the impugned order.
7. Heard both sides and perused the record.
4 MGP,J CMA_995_2012
8. The first and foremost contention of the learned counsel for the insurance company / opposite party No.2 is that the risk of applicant is not covered under the insurance policy as the applicant is a gratuitous passenger and hence, the opposite party No.2 is not liable to pay any compensation. Admittedly, at the time of the accident, apart from driver, the applicant, who is a labour along with other labourers was travelling in the lorry. RW1, who is Senior Assistant working on behalf of opposite party No.2, deposed in his chief examination that the policy is an Act Policy and that the policy covers the risk of three persons i.e., two drivers and one cleaner. In goods carrying vehicle six labourers, driver and cleaner are permitted to travel in the vehicle and that as per the policy records, the applicant was travelling in the lorry as a labour. In the cross-examination, RW1 admitted that they have collected separate premium under Ex.B1 covering the risk of one passenger. He further deposed that their Company has collected separate premium of Rs.100/- to cover the risk of owner-driver, witness adds owner-cum- driver. RW1 further deposed that in addition to the above two premiums, a separate premium of Rs.75/- i.e., Rs.25/- for each of the three employees covering the risk of three employees. He further deposed that in all they have collected additional premium of Rs.2,335/- under various categories covering the 5 MGP,J CMA_995_2012 risk of the persons travelling in the vehicle in addition to the third party risk. In Oriental Insurance Company Limited v. Thukaram Adappa and others1, the High Court of Karnataka held as follows:
"In Asha Rani's case, Devi Reddy Konda Reddy's case, Ajit Kumar's case and Baljit Kaur's case, the Supreme Court has held that the legislative intent was to prohibit goods vehicle from carrying any passenger. Carrying passengers in a goods vehicle is not contemplated under the Act. Though the Act mandates compulsory coverage against death of or bodily injury to any passenger of a public service vehicle and compulsory coverage in respect of drivers and conductors of public service vehicle and employees carried in goods vehicle, the liability was limited to liability under the Workmen's Compensation Act, 1923. The legislature never intended to cover the risk of any passenger in goods carriage. The premium paid under the new Act would only cover a third party, any passenger of a public service vehicle as also the owner of the goods or his authorised representative and not any passenger carried in a goods vehicle whether for hire or reward or otherwise. However, once such a policy is taken to paying the premium, statutorily the employees of the insured such as driver, conductor, ticket collector and who are carried in the goods carriage, are also covered to the extent of the liability under the Workmen's Compensation Act, 1923."
1 2007 ACJ 1497 6 MGP,J CMA_995_2012
9. In P. Venkata Ramana v. Chintaguntla Kumari and others2, the High Court of erstwhile State of Andhra Pradesh held that putting a vehicle to use, the drivers, irrespective of the nature of the vehicle, conductors in public service vehicle and the coolies or labourers, engaged on a goods carriage are the essential operators and it is they, who become instrumental in operating the vehicle. In Oriental Insurance Company Limited v. Meena Variyal and others3, the Honourable Supreme Court observed as under:
"Uninfluenced by authorities, we find no difficulty in understanding this provision as one providing that the policy must insure an owner against any liability to a third party caused by or arising out of the use of the vehicle in a public place, and against death or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of vehicle in a public place. The proviso clarifies that the policy shall not be required to cover an employee of the insured in respect of bodily injury or death arising out of and in the course of his employment. Then, an exception is provided to the last foregoing to the effect that the policy must cover a liability arising under the Workmen's Compensation Act, 1923 in respect of the death or bodily injury to an employee who is engaged in driving the vehicle or who serves as a conductor in a public service vehicle or an employee who travels in the vehicle of the employer 2 2010 (2) ALD 281 3 (2007) 5 SCC 428 7 MGP,J CMA_995_2012 carrying goods if it is a goods carriage. Section 149(1), which casts an obligation on an insurer to satisfy an award, also speaks only of award in respect of such liability as is required to be covered by a policy under clause (b) of subsection (1) of Section 147 (being a liability covered by the terms of the policy). This provision cannot therefore be used to enlarge the liability if it does not exist in terms of Section 147 of the Act. 14. The object of the insistence on insurance under Chapter XI of the Act thus seems to be to compulsorily cover the liability relating to their person or properties of third parties and in respect of employees of the insured employer, the liability that may arise under the Workmen's Compensation Act, 1923 in respect of the driver, the conductor and the one carried in a goods vehicle carrying goods."
10. In National Insurance Company Limited v. Prembai Patel and others4, the Honourable Supreme Court held as under:
"15. Though the aforesaid decision has been rendered on Section 95(2) of the Motor Vehicles Act, 1939 but the principle underlying therein will be fully applicable here also. It is thus clear that in case the owner of the vehicle wants the liability of the insurance company in respect of death of or bodily injury to any such employee as is described in clauses
(a) or (b) or (c) of proviso (i) to Section 147(1)(b) should not be restricted to that under the Workmen's Act but should be more or unlimited, he must take such a policy by making payment of extra premium and the 4 AIR 2005 SC 2337 8 MGP,J CMA_995_2012 policy should also contain a clause to that effect.
However, where the policy mentions "a policy for Act Liability" or "Act Liability", the liability of the insurance company qua the employees as aforesaid would not be unlimited but would be limited to that arising under the Workmen's Act."
11. It is pertinent to note that the insurance company / opposite party No.2 has filed similar appeals vide Civil Miscellaneous Appeal (SR) Nos.4208, 4214 and 4220 of 2006 aggrieved by the impugned orders dated 17.05.2006 in W.C.No.573 of 2003, W.C.No.570 of 2003 and W.C.No.571 of 2003, which were filed by other injured persons in the accident in question i.e., Crime No.166 of 2003 of Nizamabad Rural Police Station. The Single Judge of this Court has dismissed all the above said three appeals filed by the Insurance Company vide common judgment, dated 09.03.2023, wherein it was held that in Prembai Patel case (supra) the Honourable Supreme Court while dealing with the liability of Insurance Company in respect of death of a driver in case of the policy taken by the owner of the vehicle as act liability without payment of extra premium held that liability of insurance company qua employees of the owner could not be unlimited but it would be limited to that arising under Workmen's Compensation Act. In the above referred common judgment, dated 09.03.2023, it was 9 MGP,J CMA_995_2012 further observed that in New India Assurance Company Limited v. Satpal Singh Muchal5 the Honourable Supreme Court held that statutorily the employees of the insured such as driver, conductor and ticket collector, who are carried in the goods carriage, are covered to the extent of the liability under the Act without payment of any additional premium.
12. In view of these facts and circumstances and considering the principle laid down in the above said authorities and since the applicant is not a gratuitous passenger and as the applicant is an employee rendering his services to the opposite party No.1 under employee-employer relationship, the contention of the learned counsel for the opposite party No.2 that traveling in the lorry other than driver and cleaner is violation of the terms and conditions of the insurance policy and their Company is not liable to pay compensation, is unsustainable, more particularly, when opposite party No.2 has collected additional premium of Rs.2,335/- under various categories covering the risk of the persons travelling in the vehicle in addition to the third party risk. Therefore, the opposite party No.2 is liable to indemnify the opposite party No.1 i.e., owner of the lorry. 5 2000 ACJ 1 SC 10 MGP,J CMA_995_2012
13. It is further contention of the learned counsel for the opposite party No.2 that the Commissioner erred in deciding the employee and employer relationship based on Exs.A1 and A2. In Golla Rajanna etc., v. The Divisional Manager and another etc.,6 the Honourable Supreme Court held as under:
"11. Under the scheme of the Act, the Workmen's Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re- appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act."
14. Further, the Honourable Supreme Court in North East Karnataka Road Transport Corporation v. Sujatha7 held as under:
"9. At the outset, we may take note of the fact, being a settled principle, that the question as to whether the employee met with an accident, whether the accident occurred during the course of employment, whether it arose out of an employment, how and in what manner the accident occurred, who was negligent in causing the accident, whether there existed any 6 2017 (2) ALD 14 (SC) 7 (2019) 11 SCC 514 11 MGP,J CMA_995_2012 relationship of employee and employer, what was the age and monthly salary of the employee, how many are the dependents of the deceased employee, the extent of disability caused to the employee due to injuries suffered in an accident, whether there was any insurance coverage obtained by the employer to cover the incident etc. are some of the material issues which arise for the just decision of the Commissioner in a claim petition when an employee suffers any bodily injury or dies during the course of his employment and he/his LRs sue(s) his employer to claim compensation under the Act.
10. The aforementioned questions are essentially the questions of fact and therefore, they are required to be proved with the aid of evidence. Once they are proved either way, the findings recorded thereon are regarded as the findings of fact.
11. The appeal provided under Section 30 of the Act to the High Court against the order of the Commissioner lies only against the specific orders set out in clauses (a) to (e) of Section 30 of the Act with a further rider contained in the first proviso to the section that the appeal must involve substantial questions of law.
12. In other words, the appeal provided under Section 30 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 Civil Procedure, 1908 which can be heard both on facts and law. The appellate jurisdiction of the High Court to decide the appeal is confined only to examine the substantial questions of law arising in the case."
15. 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 not based on a question of law but it is 12 MGP,J CMA_995_2012 purely a question of fact, which cannot be raised before this Court as per Section 30 of the Workmen's Compensation Act.
16. In view of the discussion in the above paragraphs, it is evident that the learned Commissioner after considering all the relevant aspects has rightly awarded reasonable compensation to the applicant. Therefore, this Court is of the considered view that the learned Commissioner has not committed any illegality or irregularity while passing the impugned order and thus, this Court is not inclined to interfere with the findings of the learned Commissioner in the impugned order. Hence, the appeal is devoid of merits and liable to the dismissed.
17. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
_______________________________ JUSTICE M.G.PRIYADARSINI Date: 13.07.2023 AS