Telangana High Court
Bajaj Allianz General Insurance Co Ltd vs Smt.Najimunnisa 4 Ors on 16 November, 2022
THE HON'BLE SRI JUSTICE A.VENKATESHWARA REDDY
CIVIL MISCELLANEOUS APPEAL No.420 of 2011
JUDGMENT:
The appellant/opposite party No.3/Bajaj Allianz General Insurance Company Limited represented by its Branch Manager has filed this Civil Miscellaneous Appeal assailing the orders dated 20.08.2010 in W.C.No.34 of 2007 before the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-IV, Hyderabad.
2. W.C.No.34 of 2007 was filed by the applicants, who are the dependants of late Abdul Mukhtar (hereinafter referred as deceased) under the provisions of Workmen's Compensation Act (hereinafter referred as 'the Act') claiming compensation for the death of the deceased in the course of his employment.
Brief facts:
3. The applicants have filed an application under the Act claiming compensation alleging that the deceased was the driver on auto bearing No.AP 11V 5523 of the employer opposite party No.1. Opposite party No.2 is the husband of opposite party No.1 and looking after the maintenance of the said auto AVR,J CMA_420_2011 Page No.2 of 14 and the deceased was employed by the opposite party No.1 on payment of Rs.3,700/- per month towards wages. As usual on 26.04.2007 while the deceased was proceeding with the auto along with the passengers from Bollaram to Feelkhana, at about 10.00 P.M., on reaching near Ganesh Temple at Alwal, the deceased lost control over the auto and hit to culvert bridge, as a result of the accident, the deceased and the passengers in the auto sustained grievous injuries, the deceased was shifted to Gandhi Hospital, Secunderabad wherein he was declared 'dead'. At the time of accident, the deceased was aged about 27 years, the said auto was insured with the third opposite party insurance company. Accordingly, the applicants, who are the dependants of the deceased have claimed an amount of Rs.3,50,000/- towards compensation.
4. On receipt of notice, the 1st and 2nd opposite parties, who are the owner of the auto bearing No.AP 11V 5523 and her husband and also the employers of the deceased did not make their appearance, whereas, the third opposite party i.e. the insurance company has filed detailed counter denying the AVR,J CMA_420_2011 Page No.3 of 14 relationship of employee and employer, wages, age of the deceased and holding valid deriving licence by the deceased.
5. During enquiry, on behalf of applicants, the applicant No.1, who is the mother of the deceased, is examined as AW1. In her evidence Exs.A1 to A9 were got marked. On behalf of third opposite party No.3/insurance company their officer is examined as RW1. In his evidence, Exs.B1 to B5 documents were marked.
6. Learned Commissioner for Workmen's Compensation and Assistant Commissioner for Labour, on careful appreciation of entire material available on record, allowed the application filed by the applicants holding that the first and third opposite parties are jointly and severally liable to pay total amount of Rs.5,10,186/- towards compensation, Stamp Fee, Advocate Fee and interest with a direction to deposit the said amount within thirty days from the date of receipt of copy of the order.
7. Feeling aggrieved by the said order in WC No.34 of 2007, the opposite party No.3 i.e. the insurance company has filed this appeal.
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8. Heard learned counsel on both sides.
9. In the light of the rival contentions and the material available on record, the following points would arise for consideration:
(i) Whether the applicants are able to establish the employee and employer relationship of the deceased with the opposite party No.1?
(ii) Whether the insurance company is absolved from its liability on the ground that the insurance policy is on the opposite party No.2 though it is in respect of the auto bearing No.AP 11V 5523?
(iii) Whether mere failure of the applicants in filing the valid driving licence of the deceased workman, itself is sufficient to deny compensation to the applicants?
(iv) Whether the order impugned is sustainable?
10. For the sake of convenience, the parties are referred as applicants and opposite parties as arrayed in W.C.No.34 of 2007.
AVR,J CMA_420_2011 Page No.5 of 14 Point Nos.(i) to (iv):
Point Nos.(i) to (iv) are answered together to avoid repetition.
11. The opposite party No.1 is the wife of opposite party No.2. Undisputedly the opposite party No.1 is the owner of auto bearing No.AP 11V 5523 and she is the wife of opposite party No.2 and as per the insurance policy Ex.B1, it was obtained on the name of opposite party No.2 against whom this W.C.No.34 of 2007 is dismissed by the Tribunal below.
12. Learned counsel for the appellant/opposite party No.3/insurance company would contend that there is no employer and employee relationship established and that the vehicle involved is not on the name of the opposite party No.1 and in view of dismissal of the case against opposite party No.2 on whose name the said auto rickshaw is insured, the insurance company is not liable to pay any compensation. He would further contend that the applicants have failed to produce the driving licence of deceased and in the absence of driving licence, AVR,J CMA_420_2011 Page No.6 of 14 the insurance company cannot be held liable for payment of compensation.
13. Per contra, learned counsel for the respondent Nos.1 to 3/the applicants would submit that the employer and employee relationship is established and the law is well settled that the mere fact that the driving licence is not exhibited it cannot be said that there is no valid driving licence. There is ample evidence to show that the driving licence of the deceased was misplaced at the time of accident and merely because the insurance policy is on the name of opposite party No.2, though the vehicle is registered on the opposite party No.1, the insurance company is not absolved from its liability and relied on the principles laid in Oriental Insurance Company Limited Vs. S.Babaiah and others1.
14. Be it stated that the documents exhibited under Exs.A1 to A4 and oral evidence of AW1, the mother of deceased, is sufficient to hold that the deceased was aged about 20 years, he was having valid driving licence and on the date of accident, he was driving the auto rickshaw bearing No.AP 11V 5523 and 1 1998 (1) ALD 248 AVR,J CMA_420_2011 Page No.7 of 14 he was under the employment of opposite party No.1 as on that date, met with an accident and on the way when he was being shifted to Gandhi Hospital, Secunderabad, he succumbed to the injuries. Though the insurance policy is on the name of opposite party No.2, the insurance policy Ex.B1 is only obtained in respect of the said auto bearing No.AP 11V 5523 and that the relationship between the opposite party Nos.1 and 2 as wife and husband is undisputed. Equally the accidental death of the deceased while driving the said auto rickshaw on the fateful date is also not in dispute. Therefore, with the evidence of AW1 and the contents of Exs.A1 to A5 and A7 it can be safely concluded that the deceased was under the employment of opposite party No.1, who is the owner of said auto rickshaw and it was insured with third opposite party insurance company, wherein the name of opposite party No.2 is mentioned as 'owner', which is factually incorrect. But the evidence on record further shows that since opposite party No.1 is a Muslim woman, her husband opposite party No.2 was looking after the business of the said auto rickshaw.
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15. With regard to the age of the deceased, AW1 has categorically stated that her son was aged about 20 years at the time of the accident. The age of the deceased in Exs.A2 and A3 is also recorded as 20 years. Therefore, while relying upon the oral evidence of AW1, mother of the deceased and the contents of Exs.A2 and A3, the Tribunal below has rightly arrived at a conclusion that the age of the deceased was 20 years at the time of the death.
16. It is claimed by the applicants that the deceased was getting an amount of Rs.3,700/- per month towards wages. But the Tribunal below in paragraph No.15 of the order impugned has categorically stated that no such documentary proof is adduced in respect of wages and accordingly, the tribunal below has relied on the Minimum Rates of Wages fixed by the government of Andhra Pradesh for Public Transport Scheduled Employment vide G.O.Ms.No.83, L.E.T.&F (Lab-II), dated 22.11.2006 and arrived at a conclusion as to the basic wages of the driver of light vehicle at Rs.3,435/- and V.D.A. payable by the Commissioner is at Rs.299.25 paise together and the income was taken at Rs.3,734.25 paise per month.
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17. The main contention of the appellant/insurance company/opposite party No.3 appears to be that the deceased was not holding valid driving licence as on the date of accident and that the principle of 'pay and recover' does not apply to the applications filed under Workmen's Compensation Act. Be it noted that the Tribunal below has relied on the principles laid by the Apex Court in National Insurance Company Limited Vs. Swaran Singh and others2 wherein the Apex Court while dealing with Section 149(ii)(a) of Motor Vehicles Act, 1988 held that mere absence, fake or invalid licence or disqualification of the driver for driving the vehicle are not by themselves are the defences available to the insurance company.
18. The Tribunal below also placed reliance on the judgment of Division Bench of Kerala High Court between United India Insurance Company Limited Vs.Annakutty and another3 wherein the Division Bench of High Court of Kerala while dealing with similar facts in respect of an application filed under Workmen's Compensation Act relating to death due to 2 2004 (1) ACJ 1 3 2005 (III) LLJ 824 AVR,J CMA_420_2011 Page No.10 of 14 accident, held that insistence of driving licence will have a bearing only in respect of any injury not resulting into death and where there is a valid insurance policy, the liability will be on the insurer. Therefore, absence of driving licence cannot be a reason to deny the compensation.
19. Reverting back to the facts of the case on hand, there is ample oral evidence to show that the deceased was a professional driver and he was engaged by opposite party No.1 to drive the auto bearing No.AP 11V 5523. AW1 has categorically explained that the said driving licence of the deceased was misplaced at the time of accident and they were not able to trace it out. Thus, when the deceased was driving the vehicle at the time of accident, and died, it was misplaced, in view of the principles laid in the above decisions, the insurance company is not justified in insisting for the driving licence. In such facts and circumstances of the case, I do not find any justification in the contention raised by the appellant /opposite party No.3 to the effect that since driving licence was not produced, the applicants are not entitled for compensation in respect of death of deceased.
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20. The other contention raised by the insurance company is that since the case was dismissed by the Tribunal below against the opposite party No.2 on whose name the insurance was obtained, the insurance company is not liable to pay the compensation. But the law is very clear whenever the insured has transferred the vehicle to another person either before or subsequent to the accident, the insurance company is not absolved from the liability on the ground that the transfer of the vehicle was not intimated to it and necessary changes have not been effected in the insurance policy.
21. In the case of Oriental Insurance Company Limited Vs. S.Babaiah and others (1st supra) a learned Single Judge of this Court while relying on Section 157(1) of MV Act deeming provision, held that insurance company is not absolved from its liability on the ground that the transfer of vehicle was not intimated to it and necessary changes have not been effected in the insurance policy certificate.
22. Finally, learned counsel for the insurance company contends that the rate of interest awarded by the insurance AVR,J CMA_420_2011 Page No.12 of 14 company from the date of accident till date is 7.5% per annum and calculated the interest at Rs.90,614/- and that after thirty days to the receipt of copy of the order, the interest awarded is at 12% per annum. In this context, I may refer to the judgment of Hon'ble Supreme Court in the case of Ajaya Kumar Das and another Vs. Divisional Manager and another4 wherein the Hon'ble Supreme Court while referring to Section 4(a) of Workmen's Compensation Act 1923, held that, the Act stipulates that the Commissioner shall direct the employer to pay interest at 12% or at a higher rate, not exceeding the lending rates of any scheduled banks specified, if the employer does not pay compensation within one month from the date it fell due. The Apex Court has also referred to its earlier decision in Saberabibi Yakubhai Shaikh Vs. National Insurance Company Limited5, wherein it was held that the interest shall be paid on the compensation awarded from the date of the accident and not from the date of adjudication of the claim in view of the decision of Hon'ble Supreme Court in Oriental Insurance Company 4 2022 ACJ 1004 5 (2014) 2 SCC 298 AVR,J CMA_420_2011 Page No.13 of 14 Limited Vs. Siby George6 where it was held by the Hon'ble Supreme Court that compensation would fall due from the date of the accident. The Apex Court has also referred to its another recent decision in P.Meenaraj Vs. P.Adigurusamy & Another7, wherein while rejecting the submissions that award of interest should be after expiry of 30 days from the date of accident reiterated that the applicant is entitled to interest from the date of accident. Accordingly, in my considered opinion, there is no legal basis for the arguments rendered by learned counsel for the appellant / opposite party No.3 and that the applicants respondent Nos.1 to 3 are not entitled for interest, as awarded by the Tribunal below.
23. Therefore, for all the reasons cited above, on over all consideration of the entire facts, material available on record, I do not find any reason to interfere with the findings recorded by the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-IV, Hyderabad. The order impugned dated 20.08.2010 in W.C.No.34 of 2007 does not warrant any interference by this Court and it is sustained. 6 (2012) 12 SCC 540 7 (2022) ACJ 1001 AVR,J CMA_420_2011 Page No.14 of 14
24. In the result, this Civil Miscellaneous Appeal is dismissed confirming the impugned order dated 20.08.2010 in W.C.No.34 of 2007 of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-IV, Hyderabad in its entirety. The applicants, who are the dependants of the deceased workman, are entitled to withdraw the entire compensation amount together with interest accrued thereon as per the orders dated 20.08.2010 in W.C.No.34 of 2007 of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-IV, Hyderabad. In the circumstances of the case, there shall be no order as to the costs. Consequently, miscellaneous applications, if any pending, shall stands closed.
_______________________________ A.VENKATESWHARA REDDY, J Dated : 16-11-2022 abb