Back
2015 Supreme(AP) 442
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
T. SUNIL CHOWDARY, J.
The United India Insurance Co. Ltd. -Appellant
Versus
Mohd. Khaleel Khan & Others – Respondent
Case No : C.M.A. No. 872 of 2005
Decided on : 14-10-2015
Advocate Appeared:
For the Appellant:V. Sambasiva Rao, Advocate
For the Respondents:G. Narender Reddy, Advocate
Headnote:
Workmen’s Compensation Act, 1923 – Section 30 – Accident claim – Claim of compensation - Civil miscellaneous appeal is preferred of the Workmen’s Compensation Act, 1923, assailing the order passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour–I For the sake of convenience, the parties to this appeal will hereinafter be referred to as they are arrayed before the lower authority factual matrix leading to filing of the present appeal is succinctly claimants filed the application under the provisions of Workmen’s Compensation Act claiming a compensation of Rs.3,50,000/- for the death of in a motor vehicle accident that occurred out of and in the course of his employment. Opposite party No.1 engaged the deceased as a driver on the auto bearing No .AP 23V 4351 on a monthly wages of Rs.3,500/-. auto, which belongs to opposite party No.1, was insured with opposite party opposite party Nos.1 and 2 are jointly and severally liable to pay compensation to the applicants stating that the deceased was having valid and effective driving licence as on the date of the accident auto bearing was insured with opposite party No.2 at the relevant point of time therefore, opposite party No.2 alone is liable to pay compensation, if any, to the claimants. Hence, application may be dismissed against this opposite party opposite party No.2 filed counter denying all the averments made in the application including the manner of the accident, age and income of the deceased, inter alia, contending that there was no employer-employee relationship between opposite party No.1 and the deceased the application is not maintainable under the provisions of the W.C. Act. It is also denied that the driver of the auto was having valid and effective driving licence at the time of the accident applicants failed to furnish the proof to show that the deceased was employed with opposite party No.1 and the alleged accident occurred only during the course of his employment. Mere statement, without any documentary proof, has to be treated as false application may be dismissed against this opposite party –Held, As per the principle enunciated in the cases 11 to 16 cited supra, the burden of proof lies on the insurer (1) to establish that the driver of crime vehicle or deceased-workman was not having valid and effective driving licence at the relevant point of time and (2) the insured intentionally and wilfully entrusted the vehicle to the driver/ workman, who has no driving licence, at the time of the accident. As observed earlier, opposite party No.2 failed to discharge the burden shouldered on it to establish that the deceased was not having valid and effective driving licence at the relevant point of time and that the opposite party No.1 intentionally and wilfully entrusted the auto to the deceased knowing full well that he was not having driving licence. It is needless to say that the question of violation of terms and conditions of the policy would arise if the accident had occurred due to rash and negligent driving of the vehicle in question by the deceased. In the instant, the accident occurred due to the rash and negligent driving of the rider of the motor cycle fact remains that at the time of the accident, the deceased was attending calls of nature. In such circumstances insisting production of driving licence of the deceased has no relevancy at all in order to ascertain – Whether the opposite party No.1 had violated the terms and conditions of the policy stand taken by opposite party No.2 has no legs to stand – Appeal is dismissed.
1. This civil miscellaneous appeal is preferred under Section 30 of the Workmen’s Compensation Act, 1923, assailing the order dated 12.5.2005 in W.C. No.133 of 2004 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour–I, Hyderabad.
2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as they are arrayed before the lower authority.
3. The factual matrix leading to filing of the present appeal is succinctly as follows: The claimants filed the application under the provisions of Workmen’s Compensation Act claiming a compensation of Rs.3,50,000/- for the death of K.Yadagiri (hereinafter referred to as, the deceased) in a motor vehicle accident that occurred on 04.7.2004 out of and in the course of his employment. Opposite party No.1 engaged the deceased as a driver on the auto bearing No.AP 23V 4351 on a monthly wages of Rs.3,500/-. The auto, which belongs to opposite party No.1, was insured with opposite party No.2; therefore, opposite party Nos.1 and 2 are jointly and severally liable to pay compensation to the applicants, who are dependents on the income of the deceased.
4. The opposite party No.1 filed counter admitting the averments made in the application, inter alia, stating that the deceased was having valid and effective driving licence as on the date of the accident. The auto bearing No.AP 23V 4351 was insured with opposite party No.2 at the relevant point of time; therefore, opposite party No.2 alone is liable to pay compensation, if any, to the claimants. Hence, the application may be dismissed against this opposite party.
5. The opposite party No.2 filed counter denying all the averments made in the application including the manner of the accident, age and income of the deceased, inter alia, contending that there was no employer-employee relationship between opposite party No.1 and the deceased; therefore, the application is not maintainable under the provisions of the W.C. Act. It is also denied that the driver of the auto was having valid and effective driving licence at the time of the accident. The applicants failed to furnish the proof to show that the deceased was employed with opposite party No.1 and the alleged accident occurred only during the course of his employment. Mere statement, without any documentary proof, has to be treated as false. Hence, the application may be dismissed against this opposite party.
6. Basing on the rival contentions, the learned Commissioner framed the following issues:
(1) Whether the deceased workman late Sri K.Yadagiri, met with an accident on 04.7.2004, which arose out of and in the course of his employment as a driver on the auto bearing No.AP 23V 4351 in the employment of the 1st opp. Party and died due to the injuries sustained in the accident?
(2) If yes, who are liable to pay compensation to the applicants? And
(3) What is the amount of compensation entitled by the applicants?
7. During the course of trial, on behalf of the applicants, A.Ws.1 and 2 were examined and Exs.A1 to A9 were marked. On behalf of opposite party Nos.1 and 2, no oral evidence was let in but Ex.D1 policy was marked on behalf of opposite party No.2.
8. On analysing the oral, documentary evidence and other material available on record, learned Commissioner arrived at a conclusion that the deceased died out of and in the course of his employment and allowed the application in part by awarding compensation of Rs.3,29,300/- with interest at 9% per annum from the date of filing of the application, if the opposite parties failed to deposit the awarded amount within 30 days from the date of receipt of the order. Feeling aggrieved by the order of the learned Commissioner, opposite party No.2–Insurance Company preferred the present appeal.
9. Sri V.Sambasiva Rao, learned counsel for the opposite party No.2 attacked the legality of the order of the learned Commissioner on the following grounds: (1) the finding of the Tribunal that the dece
