THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI CIVIL MISCELLANEOUS APPEAL No.348 of 2013

JUDGMENT:

Aggrieved by the order dated 08.02.2013 passed by the learned Commissioner for Employees’ Compensation-cum- Assistant Commissioner of LabourIV, Hyderabad (hereinafter be referred as ‘the Commissioner’), in W.C.No.103 of 2011, the opposite party No.2/Insurance Company has filed the present Civil Miscellaneous Appeal.

2. For the sake of convenience, the parties hereinafter be referred as they were arrayed before the learned Commissioner.

3. The brief facts of the case are that the applicants, who are wife and children of the Sri Zaheer Ahmed (hereinafter be referred as the deceased) filed claim petition under the provisions of Employees Compensation Act, 1923, seeking compensation of Rs.8,00,000/- along with interest for the death of the deceased, who died in an accident that occurred on 01.04.2011 during the course and out of his employment with opposite party No.1. As stated by the applicants, on 01.04.2011, when the deceased was on duty as a driver on lorry bearing No.AP-23V 1458 and as per instructions of opposite party No.1, while he was proceeding on the said lorry to Bollaram Coco Cola Company with loads of empty coca-cola bottles and on the way when he reached Bachupally, another lorry bearing No. MP- 20HB 1307 came at high speed and in a rash and negligent manner, dashed the lorry of the deceased. As a result, the deceased sustained grievous injuries and that he was shifted through ambulance to Gandhi Hospital, wherein the deceased while undergoing treatment succumbed to the injuries. Based on a complaint, Police officials of Dundigal Police Station registered a case in crime No. 165 of 2011 for the offence under Section 304-A of Indian Penal Code and submitted the charge sheet. The applicants further stated that the deceased was aged about 40 years and was being paid wages of Rs.6,000/- per month by opposite party No.1. It is further stated by the applicants that opposite party No.1 has insured his lorry bearing No. AP-23V 1458 with opposite party No.2 and the said policy was subsisting as on the date of accident. Therefore, the applicants claimed compensation of Rs.8,00,000/- along with interest from opposite party Nos.1 & 2 jointly and severally.

4. In spite of notice the Opposite party No.1, did not choose to appear before the learned Commissioner and contest the matter, therefore, the opposite party No.1 was sex ex-parte.

5. Opposite party No.2 filed counter and denied the averments of the claim petition including, age, wages, manner of accident, employment, injuries sustained by the applicant, denied the issuance of an insurance policy in respect of the alleged lorry and also denied that the applicant was having valid and effective driving license to drive the lorry and denied that the alleged lorry was having a valid permit and fitness as on the date of accident. On these grounds insurance company contended that they are not liable to pay any compensation and prayed to dismiss the same.

6. Based on the above pleadings, the learned Commissioner, after framing issues, had conducted trial. The applicant No.1 was examined as AW1, wherein she reiterated the averments made in the claim application and stated that all of the applicants are totally dependent on the earnings of her deceased husband and hence, filed claim application seeking compensation of Rs.8,00,000/- along with interest and got marked Exs.A1 to A9 on her behalf. On behalf of opposite party No.1, none were examined and no documents were marked. On behalf of opposite party No.2, RW1, who has been working as Senior Assistant in Regional Transport Authority, Nizamabad was examined and Exs. B1 to B5 were marked on its behalf.

7. After considering the evidence and documents available on record, the learned Commissioner had awarded an total amount of Rs.6,26,201/- along with interest @ 12% per annum. Aggrieved by the same, the present appeal is filed by opposite party No