THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELLANEOUS APPEAL No.363 of 2014

JUDGMENT:

This Civil Miscellaneous Appeal is filed aggrieved by the order dated 09.01.2014 passed in W.C.No.14 of 2012 on the file of the Commissioner for Employees’ Compensation and Assistant Commissioner of Labour, Nizamabad (for short ‘the Commissioner’).

2. Heard Mr. T.Mahender Rao, learned Standing Counsel for appellant-Opposite Party No.2 and Mr. S.Surender Reddy, learned counsel for respondents.

3. The deceased was a cleaner on lorry No.AP 29 U 7747. On 16.05.2012 at 12:30 P.M., when the vehicle reached MBA Godown, Khanapoor village, Nizamabad District, the cleaner was checking the tyres of lorry, meanwhile, the driver suddenly drove the vehicle in rash and negligent manner at high speed in reverse and the lorry ran over the head of Joku Narsimha, due to which he sustained multiple fractures to skull, crush injuries to head, brain crushed, fracture of right shoulder and died on the spot. It is not in dispute that the accident occurred during the course of employment and that he was discharging his duties as a cleaner under the owner i.e., Opposite Party No.1in W.C./respondent No.3 herein. The claimants/respondent Nos.1 and 2 claimed a sum of Rs.10,00,000/-. An amount of Rs.5,18,655/- was awarded as compensation with interest @ 12% p.a., Commissioner directed the Opposite Party Nos.1 and 2 as jointly and severally liable to pay. The appellant herein is the Insurance Company, respondent No.3 is the owner.

4. A case in Crime No.155 of 2012 under Sections 304-A and 337 of IPC was registered in Nizamabad Rural Police Station. Ex.A1 is FIR, A2 is charge sheet, A3 is inquest report, A4 is post mortem examination report and A5 is Insurance Policy. These are the documents marked on behalf of applicants herein (claimants/respondent Nos.1 and 2). Exs.B1 to B4 are marked on behalf of Insurance Company. Ex.B1 is the policy of lorry No.AP 29 U 7741, Ex.B2 is a copy of registered post acknowledgment, Ex.B3 is a copy of report of motor vehicle inspector and Ex.B4 is summons to witness.

5. AW1, father of deceased, was examined, RW1 and RW2 were examined on behalf of Insurance Company. RW2 is the staff of motor vehicle inspector office.

6. It is contended by learned counsel for Insurance Company-Opposite Party No.2 that the driver of lorry was not holding a valid and effective driving license to drive the heavy goods vehicle at the time of accident and the Insurance Company cannot be mulcted with the liability. It is further submitted that there is collusion between the owner and the applicants and suppression of material facts, causing loss to Insurance Company.

7. It is submitted that evidence was adduced by RW1 and RW2 for Insurance Company and that the liability of the company is covered in terms of policy, that any breach would not make the Insurance Company liable. It is further submitted that owner of the lorry willfully permitted the driver to drive the vehicle without a valid driving license. That the responsibility to undertake to verify and ascertain whether the driver was possessing a valid driving license or not, is not discharged, hence, the owner is liable in terms of policy. It is not in dispute that the policy was existing as on the date of accident. That the driver was also proceeded under Section

181 of Motor Vehicle Act in Crime No.155 of 2012.

8. It is submitted that owner remained ex-parte, having received the notice, that notice was also sent to driver to the address mentioned in charge sheet (deemed service). It is contended that the burden shifts to the applicants to prove whether the driver was holding a valid driving license at the time of accident. It is reiterated that the onus cannot lie upon the Insurance Company as it shifts upon the owner also. It is further submitted that RW2 staff of the Motor Vehicle Inspector Office had stated that Police did not produce the driving license of driver and can be treated as without driving l