JUDGMENT :

This Civil Miscellaneous Appeal is preferred under Section 30 of Workmen’s Compensation Act, 1923 (in short, ‘The Act’) against the impugned order dated 15.03.2004 in W.C. No.34 of 2003 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Anantapur (in short, “the Commissioner”).

2. The appellant herein was the O.P. No.2 and the respondent Nos.1 and 2 herein were the applicants and respondent No.3 herein was the O.P. No.1 before the learned Commissioner. For the sake of convenience, the parties hereinafter will be referred to as they arrayed before the learned Commissioner.

3. The case of the applicants in brief is that,

a. The applicants herein are the mother and brother of the deceased who died in an accident while working under O.P. No.1 as hamali. The deceased K.Kambaiah worked as hamali for vehicle bearing No.AP 02 V 2836 of O.P. No.1. On 03.09.2002, at about 3.00 P.M., he attended loading and unloading work for the lorry.

b. While so in the early hours of 04.09.2002, the deceased was sleeping under the lorry which was towed by another lorry. In the said accident, deceased sustained grievous injuries and while undergoing treatment in the Government Hospital, Anantapur, on the next day, he succumbed. A case has been registered by Yellanur police under the offence punishable under Section 304-A of I.P.C. against the driver of the lorry. Applicants claim that the death arose out of and during the course of employment and they seek compensation of Rs.4 lakhs.

4. Version of the Opposite Parties:

O.P. No.2 filed counter denying the petition averments and prays for dismissal of the petition.

5. Issues – Enquiry – Finding:

a. Basing on the rival pleadings of both parties, learned Commissioner framed the following issues for consideration.

1. Whether the deceased was in the employment of the OP.1 and 2 and whether the deceased died during the course of his employment and worker within the meaning of the Act?

2. If yes, to what compensation the applicant is entitled?

3. Who is liable to pay compensation?

4. Who are the dependents and legal heirs to receive the compensation amount?

b. During the course of enquiry, the 1st applicant, who is the mother of the deceased examined as AW.1. Exs.A1 to A8 were the documents marked. O.P. No.2 examined as RW.1 and Ex.B1, the policy copy was marked on their behalf.

c. After hearing both sides and on appreciation of evidence on record, the learned Commissioner awarded compensation of Rs.2,52,896/- against the Opposite Parties.

6. Grounds of Appeal:

Having been aggrieved by the order impugned, O.P. No.2 i.e., the insurance company preferred the present appeal on the ground that the death of the deceased not occurred in and out of the course of the employment. As such, insurance company is not liable to pay any compensation because of the imprudent acts of the deceased sleeping under the lorry, the accident occurred.

7. Substantial Question of Law:

The substantial question raised in the present appeal is, “whether the insurance company is liable for the death of the deceased due to his imprudent act”?

8. Heard Sri M. Upendra Rao, learned counsel for the appellants and Sri I. Venkata Prasad, learned counsel for the respondents.

9. Having heard the submissions of both the counsel, the point that would emerge for determination in this appeal is,

“Whether the order impugned is sustainable or any interference is warranted in the appeal”?

Arguments Advanced at the Bar

10. Learned counsel for the respondents to buttress their contention, relied upon the judgment of the Hon’ble Apex Court in Mackinnon Mackenzie & Co. Pvt. Ltd. Vs. Ibrahim Mahommed Issak, 1970