Andhra HC (Pre-Telangana)
New India Assurance Company Limited vs Smt. P. Padmavathi And Ors. on 15 April, 2005
Equivalent citations: III(2005)ACC636, 2006ACJ1668, 2005(5)ALD185, 2005(4)ALT401
Author: R. Subhash Reddy
Bench: R. Subhash Reddy
JUDGMENT R. Subhash Reddy, J.
1. When the petition to condone the delay has come up, on the request of both the learned counsel, after condoning the delay, the Civil Miscellaneous Appeal, itself, is taken up for consideration.
2. This Civil Miscellaneous Appeal, under Section 30 of the Workmen's Compensation Act, 1923, is filed by the New India Assurance Company Limited, aggrieved by the award passed by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-II, Hyderbad, in W.C. No. 90 of 2004.
3. For the purpose of convenience, I refer the parties, herein, as arrayed before the Tribunal below.
4. The applicants have filed claim petition before the Tribunal below, claiming compensation of Rs. 4,00,000/- on account of accidental death of the deceased, by name, P. Raghava Rao, on 27-7-2004. As stated in the claim petition, it was the case of the applicants, that the deceased-Raghava Rao was in the employment with OP. No. 1, as cleaner and on 27-7-2004 he died accidentally during the course of employment in view of the accident. It was their case that on the said date, the deceased accompanied in the lorry bearing No. AP.24V.2272 as cleaner, from Hospet to Gaganpahad, Hyderabad with the load of Iron Muda and after reaching Sunder Steel Company, at Gaganpahad, the lorry was parked there. In the meanwhile, the deceased was instructed by the driver to bring tiffin from nearby hotel. The deceased while going to the hotel, was dashed by the lorry bearing No. ATN 67B. 8357 and in the said accident, he suffered grievous injuries and died subsequently. On a complaint to the police, a case in crime No. 510 of 2004 under Section 304-A IPC was registered on the file of the Police Station, Rajendranagar. It was the case of the claimants that the deceased was earning Rs. 3,000/- per month and was hale and healthy and was aged about 22 years at the time of accident. Compensation was claimed by impleading the appellant hearing as O.P. No. 2, who was the insurer of the lorry bearing No. AP.24V.2272.
5. Both the opposite parties, before the Tribunal below, contested the proceedings. In the counter-affidavit filed on behalf of O.P. No. 1-owner of the vehicle, he has admitted narration of the facts as stated by the applicants, but however, pleaded, as much as the vehicle was insured, vide Policy No. 610902/31/03/5812, which was valid from 9-1-2004 to 8-1-2005, if at all any compensation is payable, he is not liable to pay any compensation. The appellant-O.P. No. 2 has also contested the matter before the Tribunal by filing counter affidavit. It was the case of the O.P. No. 2 that there was no employee and employer relationship between the deceased and O.P. No. 1; as such, they are not liable for payment of compensation. Further, pleading that the compensation claimed was excessive and exorbitant, sought for dismissal of the claim petition.
6. Having regard to the pleadings on record, the Tribunal below framed the following issues for trial:
(1) Whether the deceased met with an accident on 27-7-2004 as a cleaner on the lorry bearing No. AP.24V.2272 which arose out of and in course of his employment with the 1st Opp. Party and sustained injuries resulting his death? (2) Who are liable to pay compensation? And (3) What is the amount of compensation entitled by the applicants?
7. To prove the claim, on behalf of the applicants, second applicant was examined asP.W.1 and Exs.A-1 to A-7 were marked on their behalf. On behalf of the Opposite Parties, neither oral nor documentary evidence was adduced.
8. With reference to the pleadings and evidence on record, the Tribunal below has recorded the finding that the deceased died during the course of employment with the O.P. No. 1 and, though it was the plea of the applicants that the deceased was earning Rs. 3,000/- per month, in absence of any clear evidence to that effect, the Tribunal below has taken the notified minimum wages for the cleaners under the Minimum Wages Act and awarded compensation of Rs. 2,83,243/-, in addition to Rs. 566/- on account of stamp duty and Rs. 1,000/- on account of Advocate fee. Thus, in total, the Tribunal below awarded compensation of Rs. 2,84,809/-.
9. In this appeal, it is submitted by Smt. Kalpana Ekbote, the learned counsel appearing for the appellant-O.P. No. 2-insurer that inasmuch as the deceased did not die during the course of employment, as such, the applicants are not entitled to compensation, as per the provisions of the Workmen's Compensation Act, 1923. It is submitted by the learned Counsel that even according to the case of the applicants, the vehicle was stopped and the deceased was proceeding to bring tiffin to the driver on his instructions; as such, the accident did not occur during the course of his employment as cleaner; in that view of the matter, the Award of the Tribunal below fixing the compensation payable to the respondents-applicants is illegal. The learned counsel placed reliance on the judgment of the learned Single judge of this Court, in the case of Prakasham District Co-operative Milk Producers Union Ltd. v. Pavuralla Santhakumari, III (2004) ACC 664 (A.P.)
10. On the other hand, it is submitted by Sri K. Venu Madhav, the learned Counsel appearing for the respondents-applicants that the deceased was employed as cleaner by the owner of the lorry bearing No. AP.24V.2272 and inasmuch as he died during the course of his employment, the Tribunal below correctly awarded compensation and fixed the liability. It is submitted that the oral and documentary evidence filed on behalf of the applicants clearly proved that the deceased died during the course of employment. It is further submitted that though the deceased died in the accident caused by the lorry bearing No. ATN67B.8357, the same was during the course of and in connection with the employment of the deceased with O.P. No. 1; as such, the Tribunal below has correctly assessed the compensation and fixed the liability. The learned Counsel has placed reliance on the judgment of the Orissa High Court in the case of Divisional Manager, Orissa Forest Development Corporation United v. Janakalata Barik, and, further, on the judgment of the Gauhati High Court in the case of National Insurance Company Limited v. Sabita Gope, .
11. With reference to the above said submissions, in this case, the only question which is required to be considered is: whether the deceased died during the course of employment with the O.P. No. 1, on 27-7-2004. It was the case of the applicants that the deceased was the cleaner and was travelling in the lorry bearing No. AP 24V.2272 from Hospet to Gaganpahad, Hyderabad and the vehicle was stopped when it reached Sunder Steel Company, Gaganpahad. In view of the instructions of the shop owner, the driver and cleaner were awaiting at that place, to collect hire charges. In the meanwhile, on the instructions of the driver, the deceased went to the hotel to bring tiffin to the driver. While the deceased was proceeding to bring tiffin, the deceased met with the accident, in which, he suffered severe injuries and died subsequently. Though, in the counter affidavit, the insurer has disputed the employment of the deceased as cleaner with O. P. No. 1, but, there is no evidence at all from the side of the Opposite Parties, and, if oral and documentary evidence adduced on behalf of the applicants is considered, it is clearly proved that the accident occurred while the deceased was bringing tiffin to the driver on his instructions, when the vehicle was parked after reaching the destination point at Gaganpahad, Hyderabad. In the case of Prakasam District Co-operative Milk Producers Union Limited (1 supra) relied on by the learned counsel for the appellant, it is to be seen, it is a case where the workman while proceeding to his work place, went to the office the Employee's Union and died due to electric shock while he was removing flag post; as such, the learned Single Judge held that by his own act, he invited peril, he faced, and, there was no casual connection between the accident and employment of the deceased. The said view is taken primarily on the facts situation that the deceased went to the Union Office on his own and died on account of electric shock while doing job in the Union Office; in that view of the matter, the judgment (1 supra) relied on by the learned Counsel for the appellant will not support the case on hand. In this case, the cleaner was on duty and reached destination point in the lorry along with the goods and when they were waiting to collect hire charges, in the meanwhile, the driver asked the deceased to bring tiffin and during the said period, the unfortunate accident has occurred. The job which the deceased has undertaken to bring tiffin during their stay after reaching the destination point, is nothing but notional extension of duty, on the cleaner. As such, only on account of his employment, as cleaner on the lorry, owned by O.P. No. 1, the deceased had to be in that particular spot, at that particular moment, in view of his employment and as he has accompanied the said lorry, as otherwise, he could not have been there at all. Merely because the accident occurred only when the vehicle was stopped, and, while he was bringing tiffin on the instructions of the driver; as such, it cannot be said that the accident did not take place during the course of employment. The words 'arising out of and in the course of employment' as used in Section 3 of the Workmen's Compensation Act, 1923, are to be construed, keeping in view the objects of the Act, which is a beneficial legislation to workmen. The lorry was stopped at the place after reaching destination point and when they were asked to wait for collecting hire charges, the deceased, on the instructions of the driver, went to the hotel to bring tiffin; as such, the job which was undertaken by the deceased, is ancillary and incidental to his employment; in that view of the matter, necessarily it is has to be construed as 'arising out of and in the course of employment', within the meaning of Section 3 of the Workmen's Compensation Act, 1923. The judgments relied on by the learned counsel for the applicants also support their case. Further, in this case, though there is oral and documentary evidence adduced on behalf of the applicants on their behalf, to support their case, there is no evidence from the side of the Opposite parties, to rebut the same. Further, from the cross-examination of P.W.1, nothing adverse was elicited to disprove the claim of the applicants. For the foregoing reasons, I do not find any merit in this appeal.
12. The Civil Miscellaneous Appeal is accordingly dismissed. No order as to costs.