Andhra Pradesh High Court - Amravati
The Oriental Insurance Company Limited vs M.Lakshmidevi 4 Ors on 15 November, 2022
THE HON'BLE SRI JUSTICE VUTUKURU SRINIVAS
CIVIL MISCELLANEOUS APPEAL No.637 of 2010
JUDGMENT:
This Civil Miscellaneous Appeal is directed against the order of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Anantapur (hereinafter called as 'the Commissioner') in W.C.No.29 of 2006 dated 28.01.2010.
2. The insurer of the Tata SUMO bearing No.GA 02 A 9603, belonging to the 4th respondent herein, is the appellant. The respondent No.1 herein is the wife and respondent Nos.2 and 3 are the children of M.Mallikarjuna (hereinafter called as 'the deceased'). The appeal against respondent No.5 herein, who sold the said Tata Sumo to the 4th respondent herein, dismissed vide order dated 19.04.2016.
3. According to the respondent Nos.1 to 3/applicants, in the application before the Commissioner for Workmen's Compensation at Anantapur, the deceased was working as a driver under the 4th respondent herein on monthly wages of Rs.4,000/- p.m. On 23.08.2005, the deceased was waiting near fire station at Tadipartri along with said Tata Sumo bearing No.GA 02 A 9603 to attend the personal work of respondent No.4 herein. In the meanwhile, some unknown persons came and engaged the said 2 vehicle on hire and proceeded towards Guntakal Town and on the next day the dead body of the deceased was found near Bhogalakatta under Yadiki Police Limits. As the deceased died during and in the course of employment, the applicants filed application under W.C. claiming compensation.
4. The respondent Nos.4 and 5 herein set ex parte.
5. Counter was filed by the insurer/appellant denying the liability stating that there is no employer and employee relationship; that the deceased was not died during the course of employment; that the deceased has no valid driving license and prays to dismiss the application.
6. The Commissioner settled the following issues for enquiry basing on the material:
1.Whether the deceased was a workman as per the provisions of the workmen's compensation Act-1923 and he met with the accident arising out of an in the course of his employment resulting his death?
2.What was the age of the deceased-workman at the time of accident?3
3.What were the wages paid to the deceased/eligible at the time of accident?
4.What is the amount of compensation payable to the applicants? and
5.Who are liable to pay compensation?
7. In the course of enquiry, on behalf of the applicants, AWs.1 to 3 were examined and Exs.A.1 to A.6 were marked. On behalf of the appellant/insurer, R.W.1 was examined and Ex.B.1 was marked.
8. On the material, the Commissioner held that the deceased was a driver worked under respondent Nos.4 and 5 herein in their vehicle bearing No.GA 02A 9603 and a workman as per the provisions of the Act, who died by way of murder arising out of and in the course of his employment and as the policy was in force, at the time of incident, directed the appellant and respondent Nos.4 and 5 herein to deposit the compensation amount of Rs.3,06,947/- and the stamp duty of Rs.614/- by means of a demand draft drawn in favour of Commissioner for Workmen's Compensation and the Joint Commissioner of Labour, Kurnool, within thirty (30) days from the date of receipt of this order and further ordered that if they 4 fails to deposit the compensation amount within the stipulated time, they shall be liable to pay penalty under Section 4(A)3 of the Act.
9. It is against the said order, this Civil Miscellaneous Appeal is preferred by the applicant.
10. Heard Sri N.Rama Krishna, learned counsel for the appellant and Sri M.Karibasaiah, learned counsel for the respondent Nos.1 to 3 herein/applicants.
11. Now, the following points arise for determination:
1. Whether there is any employer and employee relationship between insured and deceased ?
2. Whether the Workmen's Compensation Act applies to a person, who was murdered in an incident occurred during and in the course of employment ?
3. Whether the deceased having valid driving license at the time of incident, if so the order of the Commissioner is correct in making the appellant liable to pay compensation ? and
4. To what relief ?5
12. POINT No.1:
The undisputed facts found from the record placed before this Court is that the applicants are wife and children of the deceased, who said to be driver, aged about 35 years, worked under respondent No.4 herein with wages of Rs.4,000/- per month. On 23.08.2005, the deceased waiting near fire station at Tadipatri along with Tata Sumo bearing No.GA 02 A 9603 to go to personal work of the 4th respondent herein, who is owner of the said vehicle and in the meanwhile some unknown persons came and engaged the vehicle on heir and proceeded towards Guntakal Town and ne the next day the dead body of the deceased was found near Bhogalakatta under Yadiki Police Limits and on information a case in Cr.No.42 of 2005 was registered.
13. The applicants filed attested copies of F.I.R., post mortem report, inquest report and copy of legal notice, which was issued to appellant and respondent Nos.4 and 5 herein and got marked the same as Exs.A.1 to A.4.
14. It is also placed on record that the respondent No.5 herein sold the said vehicle to respondent No.4 herein and that the 4 th 6 respondent herein said to have been informed to the appellant/insurer herein about purchase of the vehicle bearing No.GA 02 A 9603.
15. It is the contention of the learned counsel for the appellant that initially the applicants orally approached the opposite parties for compensation and thereafter got issued legal notice as the issue was not settled and filed present W.C.No.29 of 2006. The appellant filed counter denying the material allegations and seeks for dismissal of the application on the ground of misjoinder, proof regarding employment, there is no valid license to the deceased and thereby the insurer is not liable to pay any compensation.
16. The aspect of whether the deceased was a workmen as per the provisions of Workmen's Compensation Act at the time of incident is concerned, the 4th respondent herein, who is owner of the vehicle as A.W.3 categorically stated that he is the owner of the vehicle bearing No.GA 02 A 9603 and the deceased was working under him as driver of the said jeep with a wage of Rs.4,500/- per month and he was murdered accidentally during the course of employment and Yadiki Police informed him about the death of 7 deceased and when the applicants approached him for compensation, he informed them to proceed legally and since the policy is in force as on the date, the insurance company is liable to pay compensation.
17. No doubt, the 4th respondent herein was cross examined at length by the insurer and he deposed during the cross examination that he purchased the vehicle from one Nagi Reddy, but he has not taken any agreement for sale of the vehicle and he appointed the deceased as driver of the vehicle by paying Rs.4,500/- per month towards salary and he consistently says that he informed to the insurance company for transfer of policy in his name after purchase of the vehicle and he also informed the appellant that his driver was murdered by unknown persons. So the evidence of respondent No.4 is crystal clear that the deceased was workmen as per the provisions of Workmen's Compensation Act, 1923 under the 4th respondent herein. Moreover, no contra evidence is placed by the appellant/insurer before this Court to deny the case of the applicants. Thus, this point is answered in favour of the applicants and against the appellant herein.
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18. POINT No.2:
So far as this aspect is concerned, in view of the findings in point No.1, as stated supra, the deceased was working as driver in the vehicle belonging to the 4th respondent herein and on 24.08.2005, he was found murdered by unknown persons. The material placed on record under Exs.A.1 to A.3 categorically shows that the incident occurred during and in the course of employment and there is employer and employee relationship between the 4th respondent herein and deceased. Now there is any point in deciding the liability of the insurance company, when the deceased was murdered by unknown persons during and in the course of employment. For which the applicants relied upon a decision of the Hon'ble Supreme Court between Rita Devi and others v.
New India Assurance Company Limited and another 1, wherein at paragraph No.10 held as follows:
10.The question, therefore, is can a murder be an accident in any given case? There is no doubt that murder, as it is understood, in the common parlance is a felonious act where 1 2000 ACJ 801 9 death is caused with intent and the perpetrators of that act normally have a motive against the victim for such killing.
But there are also instances where murder can be by accident on a given set of facts. The difference between a murder which is not an accident and a murder which is an accident, depends on the proximity of the cause of such murder. In our opinion, if the dominant intention of the Act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.
19. From the above it is clear that there is a difference between a 'murder', which is not an accident, and a 'murder' which is an accident depends on the proximity of the cause of such murder. If the dominant intention of the act of felony is to kill any particular person then such killing is not an accidental murder but is a murder simpliciter, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.
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20. In the case on hand, while the deceased was working as driver in the above said vehicle and while he was on duty he was taken by unknown persons and thereafter committed murder without any reason and no reasons were forthcoming for committing such murder and such murder is during and in the course of employment when the deceased proceeded on heir on 23.08.2005. Therefore, the deceased was working as driver on the vehicle under the 4th respondent herein and the said vehicle belongs to respondent Nos.4 and 5 herein and the murder of the deceased which is an accidental murder occurred during and in the course of employment. Thus, this point is answered against the appellant and in favour of the applicants.
21. POINT NO.3:
Admittedly, so far as driving license of the deceased is concerned, it is the specific contention of the appellant that the deceased has no driving license at all. Though the insurer has taken such a plea that the deceased did not have valid and effective driving license to drive the vehicle bearing No.GA 02 A 11 9603 as on the date of the incident, but it is not lead under evidence in support of its contention. No doubt, under Section 149(2)(ii)(a) of the Act, the Insurance Company can avoid its liability if a driver of a vehicle is not duly licensed. Section 5 of the Act shows no owner or person in-charge of a motor vehicle shall cause or permit any person who does not satisfy the provisions of the Section 3 or Section 4 to drive the vehicle. But it is settled law that mere absence, fake or invalid driving license or disqualification of the driver for driving at the relevant time, are not in themselves defence available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of the negligence and failed to exercise reasonable care in the matter to fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not qualified to driver at the relevant time.
22. However, the license of the deceased has no role at all in this case, as the incident was not happened while driving the 12 vehicle. Therefore, the defence of the insurer in this regard has no locus. Thus, this point is answered against the appellant and in favour of the applicants.
23. POINT NO.4:
In view of the findings on point Nos.1 to 3, the Commissioner rightly gave a finding that as the deceased was murdered, which is an accidental murder, during and in the course of employment and as the Ex.B.1 policy is in force by the date of incident, the appellant and respondent Nos.4 and 5 are jointly liable to pay compensation to the applicants.
24. Having regard to the above, the order of the Commissioner does not suffer any infirmities and this Court is not inclined to meddle with the well articulated order passed by the commissioner and as such this civil miscellaneous appeal is liable to be dismissed.
25. In the result, this Civil Miscellaneous Appeal is dismissed by confirming the order of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour, Anantapur in 13 W.C.No.29 of 2006 dated 28.01.2010. The balance amount, if any, in deposit payable to the respondent Nos.1 to 3(applicants) herein shall be released by the Commissioner without insisting for any security. There shall be no order as to costs.
26. Interim orders granted earlier if any, stand vacated.
27. Miscellaneous petitions pending if any, stand closed.
___________________ VUTUKURU SRINIVAS, J Date: 15.11.2022 Krs 14 THE HON'BLE SRI JUSTICE VUTUKURU SRINIVAS CIVIL MISCELLANEOUS APPEAL No. 637 of 2010 DATE: 15.11.2022 Krs