THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELLANEOUS APPEAL No.634 of 2014

JUDGMENT:

This Civil Miscellaneous Appeal is filed aggrieved by the order dated 30.07.2007 passed in W.C.No.36 of 2005 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III : Sri T.Anjaiah Karmika Samkshema Bhavan : R.T.C. Cross Roads, Hyderabad (for short ‘the Commissioner’).

2. Heard Mr. Kota Subba Rao, learned Standing Counsel for appellant-Insurance Company and Mr. M.Ajay Kumar, learned counsel for respondents.

3. Applicants are the legal heirs of deceased. It is claimed that the deceased was working as a labourer on lorry bearing No.AP 7V 1114, on payment of wages @ Rs.2,500/- per month. On 12.11.2004, in the evening, deceased along with his friends boarded the lorry at Kushaiguda and near Cheeryal cross roads, when the lorry was driven in rash and negligent manner, the deceased fell from the lorry and sustained head injury. He was shifted to Vijaya hospital, Nagaram at 19:00 hours immediately after the accident, there he was declared brought dead. The vehicle was insured with Opposite Party No.2 (New India Assurance Company Ltd.). At the time of the accident, the insurance policy was valid from 12.03.2004 to 11.03.2005. A case in Crime No.215 of 2004 under Section 304-A of IPC was registered in P.S. Keesara. The applicants claimed wages @3,000/- per month. The compensation of Rs.3,00,000/- from Opposite Party No.1 (owner) and Opposite Party No.2 was sought. The Commissioner after examining the witnesses i.e., AW1, RW1 and RW2 and considered Exs.A1 to A8, Exs.B1, B2 and D1, awarded the compensation. The Commissioner awarded a compensation of Rs.2,52,674/- with interest @12%

pa, the said order is under challenge.

4. Learned counsel for Insurance Company has not disputed the fact of the accident, death and validity of the policy. It is submitted that the deceased had boarded the said lorry with his friends at Kushaiguda. It is pointed out that investigation revealed, that the deceased was working as a part-time plumber and attended plumbing work and got on to the lorry on 12.11.2004. That the Commissioner erred in concluding the deceased was employed as labourer on lorry. It is further submitted that it was recorded in Police investigation that he was part-time plumber. It is contended that the deceased could not have been termed as a labourer, when recorded as part- time plumber and also contended that no proof was adduced as labourer on the lorry.

5. It is submitted that Commissioner noted the fact that deceased boarded the lorry, involved in the accident with his friends and could not have awarded the compensation. Hence, the order of the Commissioner is bad in law and has to be set aside.

6. Learned counsel for applicants/respondents submitted that though the deceased was referred as a plumber and boarded the lorry with others, the said fact is only a reflection in the FIR and the Insurance Company has not placed any evidence to disprove the contention that there was no employer employee relationship between the owner and deceased. It is submitted that the owner i.e., Opposite Party No.1 deposed before the Commissioner (as RW2) and admitted that the deceased was working as a labourer on payment of wages @ Rs.2,500/- (not as claimed at Rs.3,000/-) and that on the fateful day, deceased was on duty as labourer. It is also submitted that learned counsel for Insurance Company cross examined the owner of lorry but could not elicit anything contrary to employer employee relationship. It is further submitted that the owner specifically stated that he had employed the deceased a year back, that the insurance policy was renewed from time to time. It is lastly submitted that the Commissioner rightly concluded that the evidence of RW2 could not be disbelieved. It is urged that the order of the Commissioner is proper and needs no interference.

7. Heard learned counsels, perused the record and considered the