THE HON’BLE SHRI JUSTICE ANIL KUMAR JUKANTI CIVIL MISCELLANEOUS APPEAL No.941 of 2014

JUDGMENT:

Aggrieved by the order dated 30.07.2014 passed in W.C.No.53 of 2012 on the file of the Commissioner for Employee’s Compensation and Deputy Commissioner of Labour-I : T.Anjaiah Karmika Samkshema Bhavan : R.T.C. Cross Roads, Hyderabad (for short ‘the Commissioner’), this Civil Miscellaneous Appeal is filed by applicants.

2. Heard Ms. A.Satya Sree, learned counsel representing Mr. Balla Ravindranath, learned counsel for appellants and Ms. T.Padmaja, learned counsel representing Mr. Harinath Reddy Soma, learned counsel for respondents.

3. Applicants are the wife, children and father of deceased. It is claimed that deceased was working as driver of TATA Indica Car bearing No.AP 09 BG 4329 under the employment of Opposite Party No.1 (Owner i.e., own brother of deceased). Accident occurred on 12.01.2012, when deceased driver was proceeding in a car along with relatives from Mancherial to Narsampet of Warangal at about 05:00 hours in the morning. On 12.01.2012, when the car reached outskirts of Mallapoor village (limits of PS Dharmaram), deceased lost control over the car, car turned turtle and deceased died on the spot (G.Kumara Swamy, driver). A case in Crime No.7 of 2012 under Sections 304(A), 338 and 337 of IPC was registered in the Police Station of Dharmaram.

4. Applicants claimed a wage of Rs.8,000/- per month and Batta of Rs.250/- per day was being paid. Deceased was having a valid driving license and insurance policy was valid from 29.12.2011 to 28.12.2012, covering the date of accident. The risk of driver was also covered under the insurance policy. Applicants claimed Rs.8,00,000/- as compensation. Commissioner examined AW1/wife (for applicant), none for Opposite Party No.1-owner, RW1 (for Insurance Company), Exs.A1 to A5 for applicants and Exs.B1 to B4 for Opposite Party No.2. Commissioner after considering the evidence, exhibits marked, submissions of counsels vide order dated

30.07.2014 in W.C.No.53 of 2012 dismissed the case filed by applicants. The said order is under challenge in this CMA.

5. Learned counsel for applicants submitted that the deceased was a driver of vehicle and accident took place on 12.01.2012. That the vehicle hit a road side tree due to which driver of vehicle died on the spot and three others also died while others sustained injuries. It is further submitted that AW1 in her chief affidavit has stated that her husband along with relatives was proceeding from Mancherial to Warangal to attend funeral as per the instructions of owner of vehicle. It is also submitted that merely because owner of vehicle is own brother of deceased, there is no bar that deceased cannot be employed as a driver. Reliance is placed upon judgment of High Court of Andhra Pradesh in Kommunuri Deva Kumari and others v. Kommunuri Mary Vasantha Kumari and others, 2024 (3) ALT 40 (AP), inviting the attention of this Court to Paragraph No.17 of judgment, it is contended that as on the date of accident the insurance policy was in force and the deceased

was having a valid driving license and that relationship between deceased and owner cannot be a ground to reject the claim of applicants.

6. Learned counsel submitted that though notice was issued to owner, owner did not enter the witness box and as such the fact that deceased was not employed as a driver could not be proved by Insurance Company and it is the Insurance Company which has to prove whether there was an employer employee relationship existing at the time of accident. Learned counsel has invited the attention of this Court to the order of Commissioner and submitted that, nowhere in the order, it is recorded with regard to owner of vehicle having employed the deceased. In other words, it is contended that Insurance Company was at liberty to examine the owner but has not taken any steps to disprove the fact of employer employee relationship and that order of Commissioner also does not re