IMPORTANT POINT
Death in course of employment – Finding of fact recorded by Commissioner to the effect that deceased was employee of owner of vehicle which met with accident, cannot be interfered with by High Court.

JUDGMENT

VIKRAM NATH, J.

1. Leave granted.

2. The appellant is aggrieved by the final judgment and order dated 22.03.2022 passed by the High Court for the State of Telangana at Hyderabad in CMA No. 98 of 2010 whereby the High Court allowed the appeal filed by the insurer and set aside the award dated 30.04.2009 passed by the Commissioner for Workmen’s Compensation and Deputy Commissioner of Labour, Nizamabad in WC No. 1 of 2005 awarding compensation to the appellant.

3. The facts giving rise to the present appeal are as follows:

3.1. The deceased, Panganti Suresh, was employed by the fifth respondent as a driver on a monthly salary of Rs.3,500/- per month.

3.2. On 10.09.2004 at 5:30 a.m., while driving the car bearing No. AP-15L-4000 back from Hyderabad, Suresh met with a fatal accident when a lorry coming from the opposite direction rammed into the vehicle. Out of the four people in the car, two of them including Suresh, succumbed to the injuries.

3.3. Thereafter, the appellant being the legal representative of the deceased, filed a claim under the Workman’s Compensation Act, 1923 stating that the deceased was employed as a driver of the fifth respondent and that the accident occurred during and in the course of employment.

3.4. The owner of the vehicle, Sathyanarayanan, respondent No. 5 herein, in his counter-affidavit denied that the deceased was under his employment. Later, in his cross-examination and re-examination, he admitted the fact that the deceased was employed under him. He further admitted that the oversight was out of confusion since the accident happened on the very next day after the deceased was employed.

3.5. Relying on the oral and documentary evidence, the Commissioner by order dated 30.04.2009 recorded a finding that the deceased was employed as a driver with respondent No. 5 and the accident occurred during and in the course of employment. Accordingly, joint and several liability was fixed. The Insurance Company and the owner of the vehicle were directed to pay the compensation of Rs. 3,73,747/- along with interest at the rate of 12% p.a. to the appellant.

3.6. The Insurance Company challenged the order in CMA No. 98/2010 before the High Court. By order dated 22.03.2023, the High Court allowed the appeal and set aside the order of the Commissioner.

4. Upon hearing the learned counsel for the parties and perusing the material placed on record, we are of the opinion that the view expressed by the High Court is erroneous and deserves to be set aside.

5. The High Court, relying on the earlier counter-affidavit filed by respondent No. 5 erroneously recorded the fact that there was no employer-employee relationship between the deceased and the owner of the vehicle. It also wrongly recorded the fact that the FIR was filed by the appellant No. 1, wife of the deceased, whereas it was actually lodged by Rajamani, the wife of the other deceased.

6. The finding recorded by the Commissioner was based on a correct appreciation of evidence and did not suffer from perversity or legal infirmity. The Commissioner had considered in addition to the other material on record, the evidence of the owner who had specifically stated that the deceased was in his employment since prior to the date of the accident. Based on such consideration, finding of fact was recorded to the effect that the deceased was an employee of the owner of the vehicle which met with the accident.

7. Before us, respondent No. 5 failed to enter appearance despite service of notice. This Court was, therefore, constrained to issue bailable warrants and, thereafter, non-bailable warrants to secure his presence. Pursuant thereto, the respondent No. 5 appeared before this Court and filed an affidavit on oath, wherein he unequivocally admitted that deceased Suresh was under his employment @ Rs. 3,500/- per month and Rs. 50 per day batta. He also admitted that his denial of factum of employment in the counter-affidavit placed before the Commissioner was to avoid civil liabilit