Point of Law: there is no liability on the opposite party No.3 when the opposite party No.1 employer categorically deposed that the deceased was not employed by him at any time and that the death did not take place within the course of and out of the employment.

JUDGMENT :

The present appeal is filed by the appellant-Insurance Company, assailing the order dated 12.02.2010 passed in W.C.No.38 of 2007 on the file of the learned Commissioner for the Workmen’s Compensation and Assistant Commissioner of Labour, Tirupathi.

2. The brief averments of the claim application are as follows:

The respondents/applicants 1 and 2 herein filed W.C. No.38 of 2007 claiming compensation of Rs.4,42,740/- along with interest for the death of one K.Muneendra, who worked as Cleaner in lorry tanker No.ABC 0226 of respondent No.3 (hereinafter referred to as the ‘deceased’) and the appellant herein is the insurer of the said vehicle. His duty was to fill water to the lorry tanker from the water tank. On 22.02.2006, when the deceased was cooking his food in the house, which was situated beside and beneath the water tank of respondent No.3 along with another person by name S.Ramu, the water tanker collapsed and fell on the roof of the house causing death of the deceased and S.Ramu. A case was registered in Crime No.17 of 2006. The deceased was aged about 22 years and was getting wages at Rs.4,000/- p.m. on the date of accident. Since, he died due to personal injuries received in an accident during the course of his employment on 22.02.2006, the appellant and the respondents 3 and 4, being the insurer, owner and contractor of the said vehicle, are jointly and severally liable to pay compensation.

3. Counter was filed by the 3rd respondent-owner of the vehicle before the Court below disputing the averments made in the petition. It is stated that there is a valid insurance coverage to his lorry tanker with the appellant-insurer and the deceased never worked under him in any capacity much less as a Cleaner or Driver of his water tanker. It is further stated that the present case will not come under the purview of Workmen’s Compensation Act, 1923 (for short ‘the Act’). Hence, he requested to dismiss the petition against him.

4. The appellant-Insurance Company also filed counter-affidavit denying the averments made in the claim application stating that the compensation claimed by the respondents 1 and 2 is highly excessive and without any basis. It is further stated that due to more capacity of water in the tank, the walls of tank got cracks and fell on the cement sheet shed, as a result of which, the deceased received fatal injuries and died on the spot. The said accident occurred only due to negligence of the 4th respondent. As such, the insurance company is not liable to pay compensation and prayed to dismiss the petition against it.

5. Basing on the above pleadings, the following issues are framed by the Court below:-

1. Whether the deceased was a workman as per the provisions of the Act and he died due to personal injuries he received in an accident arising out of and in the course of his employment or not?

2. Amount of compensation payable to the applicants?

3. Who are liable to pay compensation?

6. In support of the case, the 1st respondent herein examined AW.1 apart from AWs.2 to 4 and got marked Exs.A1 to A8 while the respondents examined RWs.1 and 2 and got marked Ex.B1.

7. Considering the evidence and material, the Court below took into consideration the age of the deceased as 22 years at the time of accident basing on the Post Mortem Report and minimum wages as per public motor transport vide G.O.Ms.No.30 dated 27-07-2000 was fixed at Rs.1,437/- besides VDA of Rs.1039/-, totaling to Rs.2,476/- for a cleaner and arrived at compensation of Rs.2,74,056/- besides stamp duty of Rs.549/- totaling Rs.2,74,605/- payable by respondent No.3 and the appellant herein being the owner and insurer of the vehicle in question.

8. Challenging the same, the present appeal is filed by the appellant-Insurance Company, basing on the grounds mentioned in the Memorandum of Grounds of Appeal. Some of the grounds are as follows:

1. The Commissioner ought to have held that there is no liability on the opposite party No.3 when the opposite party