C.M.A(MD)No.2071 of 2013

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 13.06.2023

CORAM

THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR

C.M.A(MD)No.2071 of 2013

and

M.P(MD)No.1 of 2013

The Manager,

United India Insurance Company Ltd.,

K.P.V.Complex, I Floor,

137-B & E, Pandalgudi Road,

Aruppukottai-626 101.

... Appellant/2^nd Respondent

Vs.

1.Pandi

... Respondent/1^st Petitioner

2.Guruvammal

... Respondent/2^nd Petitioner

3.Minor.Madhubala

... Respondent/3^rd Petitioner

4.Minor.Pavithra

... Respondent/4^th Petitioner

(Minor respondents 3 & 4 represented by their grand

father & next friend R1 herein)

5.M/s.Karthikeya Agency,

6 & 7, St.Peters Church Road,

Iyer Bangalow, Thiruppalai,

Madurai-14.

... Respondent/1^st Respondent

6.The Manager,

Tamil Nadu State Transport Corporation,

Madurai Division,

Bye-pass Road, Madurai.

... Respondent/3^rd Respondent

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C.M.A(MD)No.2071 of 2013

PRAYER: Civil Miscellaneous Appeal is filed under Section 30 of the

Workmen's Compensation Act, against the order, dated 22.07.2013 in

W.C.No.72 of 2009 on the file of the Commissioner for Workmen

Compensation, Madurai.

For Appellant

: Mr.I.Robert Chandrakumar

For R1 & R2

: Mr.S.Sukumar

For R5 & R6

: No Appearance

JUDGMENT

The present appeal has been filed by the insurance company

challenging the order passed by the Commissioner for Workmen

Compensation, Madurai in W.C.No.72 of 2009 primarily on the ground

of liability.

2. According to the claimants, the deceased was a delivery man

working in the 1^st respondent gas agency. While he was riding a two

wheeler on 20.01.2003 to attend a leakage call at Alanganallur, the bus

belonging to the 3^rd respondent transport corporation came in a rash and

negligent manner and dashed against the two wheeler. In the said

accident, the deceased sustained serious injuries and he died on the spot.

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C.M.A(MD)No.2071 of 2013

3. The claimants have further contended that the 1^st respondent

who is the employer has taken LPG dealers package insurance policy and

the deceased had died in the course of his employment and therefore, the

2^nd respondent insurance company is liable to pay the compensation. The

claimants have prayed for a sum of Rs.4,00,000/- towards the

compensation.

4. The employer, namely the gas agency had remained ex parte and

the insurer had filed a counter contending that the claim has arisen out of

a road accident and not in the course of employment and therefore, they

are not liable to pay any compensation. They have further contended that

as per the claim petition, the driver of the transport corporation has

driven the vehicle in a rash and negligent manner and therefore, a claim

petition ought to have been filed before the Motor Accident Claims

Tribunal and the same is not maintainable under the Workmen’s

Compensation Act.

5. The Commissioner after hearing both the parties, arrived at a

conclusion that the deceased was employed in the 1^st respondent gas

agency and he died in an accident during the course of his employment

as a delivery man. The Commissioner has also calculated the

compensation at Rs.2,31,278/-. This award is under challenge in the

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C.M.A(MD)No.2071 of 2013

present appeal.

6. The appeal has been filed raising the following substantial

questions of law:

(i) Whether the deceased was a workman and that the

accident arose in the course of and during the course of

employment?

(ii) Whether attending gas leakage is part of the duties

of the deceased and whether such act of the deceased be

considered as arising out of the course of his employment?

7. The learned counsel appearing for the appellant had contended

that throughout the claim petition, the claimants have specifically

contended that the accident has taken place only due to the rash and