THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELLANEOUS APPEAL No.985 OF 2014

JUDGMENT:

This Civil Miscellaneous Appeal is filed aggrieved by order dated 25.07.2014 passed in W.C.No.187 of 2011 on the file of Commissioner for Employees’ Compensation and Deputy Commissioner of Labour-I, Hyderabad (for short ‘the Commissioner’).

2. Heard Mr. K.Rajendra Prasad, learned Standing Counsel for the appellant. There is no appearance on behalf of respondents, in spite of notice being served.

3. Brief facts:

Appellant herein is Insurance Company (opposite party No.2), respondents herein are applicant and owner (opposite party No.1) before the Commissioner. Applicant was a Driver, employed by opposite party No.1 on vehicle bearing No.GJ 16C 4960. On 22.11.2009, when applicant was proceeding from Shahin Nagar Highway Hotel to Hafeez Babanagar, at about 12:30 a.m. (night) and vehicle reached Highway Hotel, the tyre of the vehicle punctured. Applicant-Driver and Cleaner were replacing the punctured tyre, an unknown motor cycle (coming from Pahadishareef) came in a rash and negligent manner, dashed the applicant and Cleaner. Applicant sustained multiple injuries, was shifted to Osmania General Hospital for treatment. A case in Cr.No.482 of 2009 under Section 337 of Indian Penal Code, 1860 (for short ‘IPC’) was registered.

3.1 Lorry was insured vide insurance policy bearing No.050302/31/09/02/00007456, valid from 15.10.2009 to 14.10.2010. Applicant claims, he was being paid wages @ Rs.4,000/- per month. He was shifted from Osmania General Hospital to Woodlands Hospital for further treatment, was operated thrice. Applicant claims, because of injuries sustained, he is unable to squat, sit and walk. An amount of Rs.5,00,000/- is claimed as compensation against opposite party Nos.1 and 2 jointly and severally.

3.2 Learned Commissioner, considering the evidence of AWs.1 to 4 (for applicant) and Exs.A1 to A11 (marked for applicant), Ex.B1 (for opposite party No.2-Insurance Company), vide order, dated 25.07.2014, held that opposite party Nos.1 and 2 are jointly and severally liable to pay an amount of Rs.4,05,506/- with interest @ 12% per annum from 23.12.2009 till the date of realization, within 30 days from the date of receipt of the order. Challenging the said order, opposite party No.2 (Insurance Company) filed the present appeal.

4. Learned Standing Counsel for appellant-Insurance Company submitted that the vehicle bearing No.GJ 16C 4960 was not involved in the accident and that an unknown motor cycle hit the applicant-Driver and Cleaner of the vehicle is not true. That when vehicle (lorry) is not involved in the accident, Insurance Company is not liable to pay the amount. It is further submitted that charge sheet is not filed, employer-employee relationship is not established. It is also submitted that Commissioner erred in considering the employer-employee relationship, as if it was in existence/force at the time of accident. It is lastly submitted that vehicle itself is not involved in the accident and the injuries sustained by applicant are not during the course of employment, the liability of the Insurance Company to pay the said amount as directed by the Commissioner is not proper.

5. Heard learned Standing Counsel for the appellant, perused the record.

6. On 22.11.2009, the vehicle (lorry), which the applicant was driving, reached Highway Hotel, the tyre of vehicle got punctured. Applicant with Cleaner got down from the vehicle to replace the punctured tyre, while replacing the tyre, an unknown motor cycle coming from the opposite direction dashed the applicant and Cleaner. Applicant sustained injuries, was shifted to Osmania General Hospital, where he was given treatment for 10 days (as in-patient). Applicant was operated three times in Osmania General Hospital and thereafter in Woodlands Hospital. A case in Crime No.482 of 2009 under Section

337 of IPC was registered.

7. Complaint is lodged with a delay of 10 days, Commissioner held tha