THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELLANEOUS APPEAL No.339 OF 2014

JUDGMENT:

This Civil Miscellaneous Appeal is filed aggrieved by the order dated 03.11.2007 passed in W.C.No.187 of 2005 on the file of the Commissioner for Workmen’s Compensation and Asst. Commissioner of Labour, Nalgonda (for short ‘the Commissioner’).

2. Heard Mr. S.Agastya Sharma, learned Standing Counsel for the appellant – Insurance Company, and Mrs. T.Padmaja, learned counsel representing Mr. K.Jagadishwar Reddy, learned counsel for respondent No.1.

3. Brief facts:

The appellant is the opposite party No.2 (Insurance Company) and respondents are the applicant and opposite party No.1 (Owner of vehicle) before the Commissioner. The applicant was a Cleaner on lorry bearing No.AP 31 W 2721, he claims that he was being paid wages @ Rs.4,000/- per month (no evidence adduced). On 19.07.2004, at about 08:00 p.m., while the applicant was on lorry going from Hyderabad to Miryalguda, when the lorry reached outskirts of Gundrampalli Village, the lorry dashed a stationed lorry bearing No.AP 9 V 959. As a result, the applicant suffered fracture on left leg below the knee and sustained grievous injuries all over the body. Initially, the applicant was admitted in Government Hospital and later he was treated in a private hospital. A criminal case vide Cr.No.102 of 2004 under Section 338 of Indian Penal Code, 1860 (for short ‘IPC’) came to be registered in P.S. Chityal, Nalgonda District. The applicant claimed compensation of Rs.2,50,000/- with interest @ 12% per annum.

3.1 Learned Commissioner, after examining PWs.1 and 2 for applicant and RW.1 for opposite party and considering Exs.A1 to A4 for applicant and Ex.B1 for opposite parties, vide order dated 03.11.2007 concluded that opposite party Nos.1 and 2 are jointly and severally liable to deposit an amount of Rs.1,55,366/- towards compensation to be paid within 30 days from the date of receipt of order.

Challenging the said order, the present appeal is filed.

4. Learned Standing Counsel appearing on behalf of appellant-Insurance Company has not disputed on the facts of the case i.e., with regard to the accident and injuries sustained by the applicant. The main contention is with regard to employer and employee relationship. It is submitted that insurance policy does not cover the Cleaner, who is employed on the lorry and as such, the Insurance Company is not liable to pay the amount. It is further submitted that applicant has not been able to establish the employer - employee relationship. That the Commissioner erred in considering the FIR and the Charge Sheet for concluding the relationship. It is also submitted that there was a delay in registering the FIR, hence, the accident to have taken place is suspicious.

5. Learned counsel for respondent No.2 applicant submitted that applicant was a Cleaner on lorry bearing No.AP 31 W 2721 and the said lorry met with an accident by dashing a stationed lorry, due to which the applicant sustained injuries to his leg including a fracture and injuries on the body. That he was admitted in Government Hospital and later taken treatment at a private hospital by spending huge amounts. It is further submitted that learned Commissioner erred in coming to the conclusion that wages earned by applicant was Rs.2,312/- per month. It is also submitted that Commissioner fell into error in not considering the wage @ Rs.4,000/- per month that the compensation awarded is much less.

6. Heard learned counsels, perused the record and considered the rival submissions.

7. The applicant was a Cleaner on lorry bearing No.AP 31 W 2721 and the said lorry met with an accident on 19.07.2004 at around 08:00 p.m. at Gundrampalli Village, while it was proceeding from Hyderabad to Miryalaguda. The said lorry dashed another stationed lorry bearing No.AP 9 V 959. Learned Standing Counsel for appellant contends that there was no accident at all. It was contended that FIR was lodged with a delay of 10 days