Madras High Court
M/S.New India Assurance Company ... vs R.Pandiammal on 20 December, 2012
C.M.A.(MD)Nos.1050 & 1051 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On :09.09.2021
Delivered On : 17.11.2021
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
C.M.A.(MD).Nos.1050 & 1051 of 2013
M/s.New India Assurance Company Limited,
Divisional Office,
248-B, Rekha Towers,
Kamarajar Salai,
Madurai-625 009. .. Appellants in both appeals
Vs.
1.R.Pandiammal
2.A.Karthigai Selvi
3.R.LakshmiPriya
4.R.Krishnavelu
5.R.Gunasekaran
6.I.Karuppasamy .. Respondent Nos.1 to 6 in C.M.A.(MD).No.1050 of 2013
7.K.Irulayee
8.Sathuragiri
9.Annakodi
10.Minor.Mahalakshmi
11.Minor.Mahalingam
12.I.Karuppasamy ...Respondent Nos.1 to 6 in C.M.A.(MD).No.1051 of 2013
(respondent Nos. 4 and 5 in C.M.A.(MD).No.1051 of 2013 are represented by their
mother and natural guaridan Irulayee/the first respondent in C.M.A.(MD).No.1051 of
2013)
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C.M.A.(MD)Nos.1050 & 1051 of 2013
COMMON PRAYER: This Civil Miscellaneous Appeals are filed under Section 30
of the Workmen's Compensation Act, 1923, against the award dated 20.12.2012
made in W.C.Nos.95 & 96 of 2009 on the file of the Commissioner of Workmen
Compensation Commissioner, Madurai.
In both appeals
For Appellant : Mr.D.Sivaraman
For Respondents : Mr.N.Sudhagar
for Mr.A.Theethar
for RR1 to 6
COMMONJUDGMENT
These appeals are filed against the order made in W.C.Nos.95 & 96 of
2009 dated 20.12.2012 on the file of the Workmen Compensation Commissioner,
Madurai.
2. In both the petitions, the appellants herein are the second respondent and
the respondent Nos.1 to 5 herein are the claimant Nos.1 to 5 and the sixth respondent
herein is the first respondent.
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C.M.A.(MD)Nos.1050 & 1051 of 2013
3. A brief substance of the claim petition is as follows:
The claimants are the dependents of the deceased persons. The deceased
persons were working as load men in a Mini lorry bearing Registration No.TN 67 X
6843, which belongs to the first respondent. On 23.05.2008 at about 05.30 p.m.,
when the deceased persons were travelling in the Mini lorry, the lorry met with an
accident, the deceased persons were admitted in Madurai Rajaji Hospital and they
expired on 29.05.2008 and 24.05.2008. The accident occurred during the course of
employment. The deceased persons were aged about 45 years at the time of accident
and they were earning a sum of Rs.5,500/- as monthly income. Hence, each sets of
the claimants claimed a sum of Rs.7,00,000/- as compensation.
4. A brief substance of the counter filed by the first respondent is as
follows:
The deceased persons died in the accident, during their course of
employment. The vehicle was insured with the second respondent and the Insurance
Policy is valid at the time of accident. Hence, the second respondent alone is liable to
pay the compensation.
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C.M.A.(MD)Nos.1050 & 1051 of 2013
5. A brief substance of the counter affidavit filed by the second respondent
is as follows:
The accident vehicle is a goods vehicle and on the date of accident, the
deceased persons and others travelled in the vehicle to attend an Ear piercing
ceremony that took place in Periya Nayagi Amman temple. In the First Information
Report, this fact has been clearly stated. Further, the first respondent failed to inform
about the accident, the age, profession and income of the deceased persons are to be
proved and the claimants have to prove that they were the dependents of the
deceased.
6. In the joint trial for both the petitions, one witness was examined and
seven documents were marked on the side of the claimants. One witness was
examined on the side of the first respondent. Two witnesses were examined and five
documents were marked on the side of the second respondent.
7. Considering the facts and circumstances of the case, the Tribunal
awarded a sum of Rs.3,08,860/- (Rupees Three Lakhs Eight Thousand Eight
Hundred and Sixty Rupees Only) as compensation in each of the petitions. Against
which, the second respondent has preferred these appeals.
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8. On the side of the appellant, it is stated that the Deputy Commissioner
has not given any finding with regard to the evidence of P.W.1, who, in his cross-
examination, has admitted that the deceased persons were travelling in the goods
vehicle to attend an Ear Piercing ceremony. The Deputy Commissioner has failed to
consider the averments made in the First Information Report which clearly shows
that the vehicle was hired for the purpose of carrying the passengers and not for
transporting goods. Further the claimants relied upon the First Information Report
for proving their case. Hence, they could not deny the contents of the First
Information Report.
9. The owner of the vehicle was not examined. R.W.1(1) is the son of
the owner of the vehicle and his evidence is not reliable. R.W.1(1) has admitted that
he did not produce any evidence to prove the employer-employee relationship
between his father and the deceased persons.
10. At this juncture, the following two questions were raised for
consideration as follows:-
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(i) Whether the Workmen Compensation Commissioner is right in holding
that the insurer is liable to compensate the claimants in the absence of any reliable
oral or documentary evidence to prove the employer-employee relationship between
the insured and the deceased which is mandatory under Section 3 of the W.C.Act?
(ii) Whether the learned Workmen's Compensation Commissioner-cum-
Deputy Commissioner of Labour is correct in directing the appellant/Insurance
Company to pay interest on the award, from the date of the accident, which is in
contradiction to Section 4-A(3) of the Workmen's Compensation Act?
11. Issue No:1
The contention of the appellant is that there was no employer-employee
relationship between the deceased and the sixth respondent. R.W.1 has also given a
statement that there was no employee-employer relationship between the deceased
and the sixth respondent. The investigation report of R.W.1 was marked as Ex.R1
and R2. In the First Information Report, it is stated that at the time of the accident ,
when the deceased and others were returning home town, after attending a temple
festival. On the side of the appellant, it is stated that the deceased persons travelled
as gratuitous passengers in the goods vehicle. There was no wording in the First
Information Report to denote that the deceased travelled as load men in the vehicle.
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C.M.A.(MD)Nos.1050 & 1051 of 2013
12. On the side of the respondents, it is stated that R.W.1 has deposed that
the deceased persons travelled as load men in the goods vehicle and they were
working as load men under his father.
13. On the side of the appellant, a judgment reported in 2007(2) TN MAC
106 (SC) in the case of ORIENTAL INSURANCE COMPANY LIMITED vs.
PREMLATA SHUKLA AND OTHERS is cited, wherein, it is stated as follows:
“once a part of contents of document admitted in evidence party
bringing same on record cannot be permitted to turn round and
contend that other contents contained in rest part thereof had not been
proved-Document/FIR marked as Exhibit and both parties relied
thereupon-Once a part of it relied upon by both parties, Tribunal
cannot be said to have committed any illegality in relying upon other
part, irrespective of contents of document been proved or not-if
contents proved, question of reliance upon a part thereof and not
upon rest, on technical ground that same had not been proved in
accordance with law, would not arise”.
14. On the side of the appellant, it is further stated that the complainant,
who relied on the First Information Report, cannot deny its contents and a judgment
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C.M.A.(MD)Nos.1050 & 1051 of 2013
reported in (2009) 2SCC 75 in the case of NATIONAL INSURANCE COMPANY
LIMITED vs. RATTANI AND OTHERS is cited, wherein, it has been stated as
follows:
“FIR made part of claim petition and ordinarily allegations
made in the FIR not admissible in evidence per se but as the allegation
made in FIR had been made a part of the claim petition, Tribunal and the
appellate Courts entitled to look into the same. Furthermore, an
admission made in the pleadings is admissible in evidence”.
15. On the side of the respondent, it is stated that the First Information
Report is not a substantial peace of evidence. It may be used for contradiction or for
corroboration.
16. On the side of the appellant, it is stated that pay and recovery order
cannot be passed in the case of gratuitous passenger and that it is the liability of the
claimants to prove that the deceased persons travelled as load men. In this regard, a
judgment of this Court reported in 2018(2)TNMAC 731 (DB) in the case of
BHARATI AXA GENERAL INSURANCE COMPANY LIMITED vs. Aandi is
cited, wherein, it has been stated as follows:
“whether Insurer can be directed to pay and recover-
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C.M.A.(MD)Nos.1050 & 1051 of 2013
Insurance Policy, a mandatory statutory requirement, required to cover
only certain classes of persons-No mandatory requirement for the
Insurer to cover persons travelling as Passengers in Goods Vehicle,
unless such passenger is Owner or Agents of Owner of goods
accompanying goods in vehicle-In absence of any statutory requirement
to cover liability in respect of Passenger in Goods Vehicle, Principle of
“Pay and Recover” as statutorily recognized in Section 149(4) &(5), not
applicable ipso facto to such cases”.
17. It is seen that in the First Information Report, it is stated that the
deceased persons and others travelled in the goods vehicle to attend a function in a
temple. Whether the deceased persons travelled as passenger or load men is not
specifically mentioned in the First Information Report. No eye-witness was
examined on the side of the respondents and the driver of the vehicle was not
examined. R.W.2(2) is the Special Officer engaged by the second respondent for
investigating the case. The evidence of R.W.2 and the contentions of Ex.R1 and R2
were not correlated by the evidence of any independent witness. R.W.1 is the son of
the owner of the vehicle and he has deposed that the deceased persons were the
employees of his father and they travelled to deliver the goods in the temple. From
the First Information Report, it is clear that the accident took place, after unloading
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C.M.A.(MD)Nos.1050 & 1051 of 2013
the goods. The evidences of P.W.1 and R.W.1 correlate each other. Hence, it is
decided that the employer-employee relationship between the sixth respondent and
the deceased is proved. Hence, the question No.1 raised by the appellant is not
sustainable.
18. Issue No.2:
The appellant has stated that the Deputy Commissioner has ordered
interest for the award amount from the date of accident which is contrary to Section
4(a)(iii) of the Workmen's Compensation Act.
19. However, under Section 4(a)(iii) of the Workmen's Compensation Act,
the employer is liable to pay interest at the rate of 12% per annum after the
completion of 30 days from the date of accident. Hence, it is decided that the
claimants are entitled for interest at the rate of 12% from the 31st day of the accident
and the question No.2 raised by the appellant is decided accordingly.
20. Accordingly, the Civil Miscellaneous Appeal in C.M.A.(MD).No.1050
of 2013 is dismissed and the appellant is directed to pay a sum of Rs.3,08,680/-
(Rupees Three Lakhs Eight Thousand Six Hundred and Eighty Rupees Only) along
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C.M.A.(MD)Nos.1050 & 1051 of 2013
with interest at the rate of 12% per annum from the 31st day of accident till the date
of deposit to the credit of W.C.No.95 of 2009 on the file of the Workmen
Compensation Commissioner, Madurai, within a period of eight weeks from the date
of receipt of a copy of this judgment, if not already deposited. On such deposit, the
claimants are permitted to withdraw their respective shares with proportionate
interest after deducting any amount received by them earlier.
21. The Civil Miscellaneous Appeal in C.M.A.(MD).No.1051 of 2013 is
dismissed and the appellant is directed to pay a sum of Rs.3,08,680/- (Rupees Three
Lakhs Eight Thousand Six Hundred and Eighty Rupees Only) along with interest at
the rate of 12% per annum from the 31st day of accident till the date of deposit to the
credit of W.C.No.96 of 2009 on the file of the Workmen Compensation
Commissioner, Madurai, within a period of eight weeks from the date of receipt of a
copy of this judgment, if not already deposited. On such deposit, the claimants are
permitted to withdraw their respective shares with proportionate interest after
deducting any amount received by them earlier. The appellant is directed to deposit
the share of the minor claimants / respondent Nos.4 and 5 herein in any one of the
Nationalised Banks, in a Fixed Deposit scheme, till they attain majority. The first
respondent, who is the mother and guardian of the minor claimants, is permitted to
withdraw the accrued interest once in three months directly from the bank, only for
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C.M.A.(MD)Nos.1050 & 1051 of 2013
the welfare of minor. No costs. Consequently, connected miscellaneous petitions are
also closed.
.11.2021
Index : Yes/No
Internet : Yes/No
ssb
Note : In view of the present lock down owing to COVID–19 pandemic, a web copy
of the order may be utilized for official purposes, but, ensuring that the copy of the
order that is presented is the correct copy, shall be the responsibility of the advocate /
litigant concerned.
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C.M.A.(MD)Nos.1050 & 1051 of 2013
R. THARANI, J.
ssb To
1.The Workmen Compensation Commissioner, Madurai.
2.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
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