The deceased, as a workman, is covered under the insurance policy as a 'third party' following the amendment to Section 145(i) of the Motor Vehicles Act, 1988.

JUDGMENT

The present appeal is filed against the order dated 17.12.2011 in W.C.No.20 of 2010 passed by the Commissioner for Workmen Compensation and Assistant Commissioner of Labour, Narsipatnam.

2. Facts leading to this appeal are as under:

One M.Appala Naidu (herein after referred to as ‘deceased’) was working as loading and unloading labour in the Tractor and trailer bearing registration Nos. AP 31 AN 9428 and AP 31 Y 5310 respectively belonging to O.P.No.1 and used to earn Rs.4,500/- per month. On 18.10.2009 in the morning, the said Appala Naidu (deceased) went to Gotivada village on the tractor/trailer from G.Koduru for unloading stones. After unloading the load, while returning to G.Koduru, the said tractor and trailer met with an accident near Nagaram village, Makavarapalem Mandal, Visakhapatnam District due to negligence of the driver.

3. In the accident, the vehicle turned turtle and due to the impact, the deceased and one Bodapati Nookaraju suffered grievous injuries while other labour in the vehicle suffered simple injuries. Immediately, the deceased and Bodapati Nookaraju were shifted to Area Hospital, Narsipatnam and were further shifted to K.G.H, Visakhapatnam on 19.10.2009. On advice of the Doctors therein, the deceased was shifted to Apex Hospital, Visakhapatnam and on 04.11.2009, the deceased succumbed to his injuries while being shifted to his house. The other injured Bodapati Nookaraju also died on 25.10.2009 while taking treatment at K.G.H, Visakhapatnam. The Makavarapalem Police registered a case in Crime No.99 of 2009 under Sections 338 and 337 IPC and the same was altered later as 304-A and 338 IPC against the driver of the tractor/trailer.

4. As the deceased was the sole breadwinner of the family, the application for compensation was filed by the wife, married daughters and unmarried daughter seeking compensation of Rs.4,57,488/-. It was stated that, the vehicle was insured with O.P.No.2 vide policy No.10003/31/10/003823, which was valid from 09.04.2009 to 08.04.2010. It was also pleaded that an amount of Rs.90,000/- was spent towards medical expenses, hospital charges and treatment of the deceased from the date of accident i.e. 18.10.2009 till 4.11.2009.

5. O.P.No.1/Employer filed counter admitting that the deceased was working as loading and unloading labour in the tractor and trailer and used to earn Rs.4,500/- per month and that the accident occurred due to the negligence of the driver.

6. O.P.No.2/insurance company filed its counter disputing the liability on the ground that the vehicle was carrying passengers as on the date of the accident contrary to the contractual clause and that no premium was paid by O.P.No.1 to cover the risk of any other person other than the driver.

7. Considering the pleadings, the Commissioner framed following issues for consideration:

1. Whether the deceased is a workman under the provisions of W.C.Act and there exists employee- employer relation and death aroused out of and in the course of employment?

2. What is the age and Wage of the deceased at the time of the accident?

3. Whether the applicant is entitled for any amount of compensation? If so what amount of compensation the applicants are entitled and who are liable to pay compensation?

8. In the course of evidence, the claimant No.1 i.e. wife was examined herself as A.W.1 and one Ayyarapu Naganna, an eyewitness to the accident was examined as A.W.2. O.P.No.1 was also examined himself as R.W.1 and he reiterated his submissions, averments in the counter. O.P.No.2 examined one B.A.L.N. Hari Krishna, Legal Officer as R.W.2. The claimants marked Exs.A.1 to A.5 i.e. FIR dated 18.10.2009, Postmortem Certificate dated 05.11.2009, Inquest Report, MVI Report and Xerox Copy of Driving License of the Driver respectively. R.W.2 got marked insurance policy as Ex.B1 and Exs.X.1 to Ex.4 Letter of Transport Department dated 28.09.2011, Form 24 B-Register of Motor Vehicle of Tractor and Trailer issued and Goods carrier permit issued by RTA on