THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELLANEOUS APPEAL No.965 OF 2013

JUDGMENT:

This Civil Miscellaneous Appeal is filed aggrieved by the order dated 23.08.2013 passed in W.C.No.251 of 2011 on the file of the Commissioner for Employees’ Compensation and Deputy Commissioner of Labour-I, Hyderabad (for short ‘the Commissioner’).

2. Heard Mrs. T.Padmaja, learned counsel representing Mr. S.Harinath Reddy, learned Standing Counsel for the appellant. There is no appearance on behalf of respondent Nos.1 and 2, in spite of notice being served.

3. Brief facts:

The appellant herein is the opposite party No.2 (Insurance Company) and respondents herein are the opposite party No.1 (owner of the vehicle) and applicant before the Commissioner. The applicant claims to be a workman (labourer/helper) employed by opposite party No.1 on vehicle bearing No.AP 29 BF 7840. On 28.06.2011, when the lorry was proceeding towards Haliya of Nalgonda District, at about 09:30 a.m., when the lorry reached Peddavoora Village outskirts, the driver drove the vehicle in a rash and negligent manner, due to which, the vehicle turned turtle and the applicant received grievous injuries over the body. Initially, he was taken to Government K.N. Hospital, Nagarjunasagar, for treatment and later shifted to Mother Theresa Hospital, Devarakonda. A case in Cr.No.72 of 2011 under Sections 337 and 304A of Indian Penal Code, 1860 (for short ‘IPC’) was registered.

3.1 The lorry was insured by opposite party No.1 vide insurance policy bearing No.1000/31/11/280098, valid from 10.11.2010 to 09.11.2011. The applicant claims that he was being paid monthly wages of Rs.8,000/- and Rs.100/- per day towards batta by opposite party No.1 at the time of accident and claims an amount of Rs.8,00,000/- as compensation against opposite party Nos.1 and 2 jointly and severally.

3.2 Learned Commissioner examined AWs.1 and 2 as witnesses for applicant and RW.1 for opposite party No.2. Exs.A1 to A12 were marked on behalf of applicant and Ex.B1 on behalf of opposite party No.2. Learned Commissioner, having considered the evidence on record, awarded a compensation of Rs.2,80,192/- along with interest @ 12% per annum from 29.07.2011 till the date of realization. The amount was directed to be paid by opposite party Nos.1 and 2 (jointly and severally) 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 appearing on behalf of appellant-Insurance Company submitted that applicant was not a labourer/helper on the said vehicle. That no evidence was adduced on behalf of applicant to substantiate the contention that he was employed by opposite party No.1 drawing a monthly wage of Rs.8,000/- (along with batta @ Rs.100/- per day). It is further submitted that on the date of accident, the applicant was sitting on the top of the lorry cabin along with two others and when the lorry reached the outskirts of Peddavoora Village, it turned turtle due to rash and negligent driving of the driver and applicant fell from top of lorry cabin and sustained injuries. It is also submitted that Insurance Company is not liable to pay amount, as the applicant was not a cleaner/labourer/ helper on the lorry and that the Workmen’s Compensation Act, 1923, cannot come to the rescue of gratuitous passenger.

4.1 It is submitted that the rate of interest awarded by the Commissioner is on the higher side and granting interest @ 12% per annum would prejudice the Insurance Company. It is further submitted that RW.1 (employee of Insurance Company) in his evidence denied that basic premium covers the risk of all the employees, in spite of the denial, Commissioner awarded compensation on the ground that Insurance Company is liable to compensate the injured, as the lorry was covered under insurance policy. It is also submitted that Commissioner erred in coming to the conclusion that there was an employer-employ