THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI

CIVIL MISCELLANEOUS APPEAL No.172 of 2014

JUDGMENT:

This Civil Miscellaneous Appeal is filed aggrieved by the

order dated 18.05.2012 passed in W.C.No.1 of 2010 on the file of the Commissioner for Workmen’s Compensation and Deputy Commissioner of Labour, Nizamabad (for short ‘the

Commissioner’).

2. Heard Mr. V.Samba Siva Rao, learned Standing Counsel for appellant-Opposite Party No.2 and Mr. T.Rahul, learned counsel representing Mr. V.Raghunath, learned counsel for

respondents.

3. Appellant is the insurance company, deceased is the brother of respondent-applicant. On 25.12.2009, tractor driven by the deceased, when reached shivar of Sarangapur Village, a buffalo came across the road, sudden brakes were applied and the driver (deceased) lost control of the tractor, due to which, the tractor and trolley turned turtle and the deceased fell down,

suffered multiple fractures to skull and died on the spot. The Nizamabad Rural Police registered Crime No.391 of 2019 against the driver (tractor bearing No.AP-25-U-8472 and trailer bearing No.AP-25-U-8571), charge sheet is filed. Applicant claimed a compensation of Rs.8,00,000/- with interest. Tractor and trailer are insured vide policy bearing No.551302/31/09/6300000425 valid from 10.07.2009 to

09.07.2010.

4. Commissioner awarded a compensation of Rs.4,44,125/- holding Opposite Party Nos.1 and 2 jointly and severally liable with interest @ 12% pa.

5. Learned counsel for appellant-Insurance Company (Opposite Party No.2 in W.C), submitted that there is no master-servant (employer-employee) relationship between Opposite Party No.1 (owner, Saraswathi Mahila Samajam) and deceased. It is further submitted that deceased was not having a valid driving licence. Learned counsel invited the attention of this Court to Clause 7 of Hon’ble Apex Court’s decision in National Insurance Company Limited v. Swaran Singh and others1 and contended that owner of vehicle has not taken reasonable care to find out whether the deceased was having a valid driving licence or not. That no driving licence was adduced to prove the deceased had a driving licence at the time of accident.

6. It is submitted that, Commissioner fell into error in awarding compensation to the applicant. Learned counsel invited the attention of this Court to Section 2(1)(d) of Workmen’s Compensation Act, 1923 (for short ‘the Act, 1923’) which defines the term ‘dependant’, and contended that elder brother cannot be held to be a dependant. It is further submitted that unless established, that applicant is a dependant on the earning of deceased, claim petition cannot be maintained.

7. Learned counsel placed reliance on the judgment of Hon’ble Apex Court in Oriental Insurance Company Ltd., Prakasham District v. R.Sreenu and others, 2022 (6) ALD 446 (AP) to contend that

1 (2004) 3 SCC 297

applicant/claimant cannot be compensated. Learned counsel placed reliance on the judgment in National Insurance Company Ltd., Hyderabad v. Jada Muthyali and others and contended that onus lies on the owner of the vehicle to check the documents and driving licence of driver before handing the vehicle. That, as the owner of the vehicle failed in his duty, the Insurance Company cannot be directed/mulcted to pay the compensation.

8. Learned counsel for applicant-respondent No.1 (herein) submitted that applicant is elder brother of deceased and deceased was working as a driver with Opposite Party No.1, was paid a monthly salary of Rs.10,000/-. That on account of the death of his brother, applicant is rendered without financial support as he depended on the earnings of his minor brother. It is further submitted that owner of vehicle M/s. Saraswathi Mahila Sangam engaged the deceased for lifting of waste, that on the fateful day, his brother driving the vehicle, when reached Sarangapur Village, a buffalo came across the road, due to

3 2022 (5) ALD 470 (TS)

application of sudden brakes, tractor and trailer turned turtle, deceased sustained inju