CMA/236/2007 of THE UNITED INDIA INSURANCE COMPANY LIMITED Vs SMT.P.SHYAMALA AND 3 ORS on 31 December 2021

IN THE HIGH COURT FOR THE STATE OF TELANGANAAT HYDERABAD

FRIDAY, THE THIRTY FIRST DAY OF DECEIVBERTWO THOUSAND AND TWENTY ONE

PRESENT

THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

CIVIL MISCELLANEOUS APPEAL NO: 236 OF 2007

(Appeal filed Under section 30 of workmen's compensation Act, aggrieved by theorder and Decree dated 29.08.2006, passed in wc No.9 ol 2002, on ltre tite or tnecommissioner for workmen's compensation and Assistant commissioner of Labour,Ranga Reddy District-ll,T.ANJAtAH KARMTKA SANKSHEMA BHAVAN,RTC ,X' ROADS,HYDERABAD.2O}

Between:

The United lndia lnsurance company_ Limited, Rep by its Divisional Manager,Divisional Office-Xl, 3rd Floor, Tirumala'Towers, Malalipet, Hyderabad.

.,.APPELLANT/OPPOSITE PARTY.NO.2

AND

'1 . Smt.P.Shyamala, W/o.late P.Mallesh, Age: 27 years Occ: Household

2. P.Ramulu, S/o.Pullaiah, Age: 50 years, Occ: Agriculture

3. Smt P.Anasuya, W/o.P.Ramulu, age: 45 years, Occ: HouseholdAll are Rl/o.Annojiguda Village, KandukuiMandal, Ranga Reddy DistrictAll are Rl/o.Annojiguda Village, KandukuiMandal, Ranga Reddy District .,.RESPONDENTS/PETITIONERS

4C.Shankaraiah, S/o.Late Veniah, Age: Major,Occ: BusinessR/o.Kandulur tvl & tN/I, Randa Reddy Distiict.R/o.Kandulur tvl & tN/I, Randa Reddy Distiict.

...RESPONDENT/ RESPONDENT

CMAMP. NO:484 oF 2007

Petition under section 151 cpc praying that in the circumstances stated inthe affidavit filed in support of the petition, the High court may be pleased to staythe operation of the order dated 29.8.2006, made in w.c.No.g of 2002, on the file ofthe commissioner for workmen and Assistant commissioner of Labour, Rangathe operation of the order dated 29.8.2006, made in w.c.No.g of 2002, on the file ofthe commissioner for workmen and Assistant commissioner of Labour, RangaReddy District-ll at Hyderabad.

Counsel for Appellant : SRt. A RAMAKRISHNA REDDy Counsel for Respondent No.2: SRI KOTA SUBBA RAO

Counsel for the Respondent No.3: SRI MOHAMMED SHAKEEL

The Court made the following JUDGMENT

THE HONOU RABLE S]!IT. JUSTICE P. MADII,\VI DIiVICIVIL MIS( ]ELLANEOUS APPEAL NO.236 OF 2OO7JUDGMENT:

This Civil M scellaneous Appeal has been filed by the OppositeParty No.2/lnsura lce Company challenging the Award of theCommissioner fc' Workmen's Cornpensation and AssistantCommissioner of J .abour, Ranga Reddy District-ll at Hyderabad inW.C. No.9 o12002 dated 29.08.2006.

2. The briellact rleading to filing olthis Appeal are that one Sri P.Mallesh was worl ing as a driver on tractor and trollel bearingNo.AP28Q-3863 a Ld AP28Q-3864 belonging to the opposite paftyNo.1. On 12.03.21 01, the said driver was driving the same with aload of bricks fi rm Rajhuloor Village to Annojiguda torvardsThimmaipally. Wh rn the said tractor and trolley reached near theManneni Jallkatta r f Thimmaipally Village at about 04.30 p.m. thesaid tractor and trol ey turned turtle due to loss ofcontrol by the driverand the driver died on the spot and other labourers travelling in thetrolley also sustaine lgrievous injuries.

3. The dependar:s of the driver flled the application befbre theCommissioner for' Vorkmen's Compensation seeking compensationof Rs.2,50,000/-. I he applicants claimed that the deceased was 26years of age and tl at he was being paid Rs.2,700r- per nronlh aswages by the res:ondent No.l/orvner of the vehicle. In the

Workmen's Compensation [case, ][the owner ][of ][the vehicle ][appeared]and confinned the employment of [the ][deceased ][as ][driver ][and ][as]regards the wages, he submitted [that he ][was ][paying ][Rs.2,000/- ][as]wages. He also stated that the deceased [Mallesh had ][possessed ][a]licence to drive the vehicle and that he [has ][verified ][the ][same ][before]as a driver. [The Insurance Company denied that there]employing him was any employee and employer relationship [between ][the ][deceased]and the owner of the [vel.ricle and also ][that the ][deceased ][held a ][valid]driving licence at the time of [the ][accident. ][The ][insurance company]also stated that the respondent [No.1 ][used the ][tractor ][and ][trolley for]commercial purpose violating the [policy ][conditions ][of ][the ][usage ][of]tractor-cum-trolley for agricultural [purposes ][and therefore, ][they ][are]not liable to pay the compensation. [They ][also ][disputed ][the ][age ][of]deceased as 26 years.

4. The learned Cornmissioner for [Workmen's ][Compensation, after]considering the evidence available [on record, held that the ][employee]and employdr relationship between [the ][deceased and ][respondent ][No'l]was proved and the age of the deceased [was ][also ][proved ][to ][be ][28]years in the post-mortem report. He accordingly [adopted ][the ][age ][of]the deceased as 28 years and computed [the compensation ][by ][adopting]the wages of the deceased at Rs.2,000/- [per ][month and ][awarded]compensation of Rs.2,11,7901-. [Aggrieved ][by ][the ][compensation]granted by the Commissioner for Workmen's Compensation, [the]

Insurance [( ]ompany is now in appeal before this CoLrrt by raising thefollowing sr bstantial questions of law; i) The eamed Commissioner failed to see that the alleged deathof dr iver was occuned while he was on duty as <lriver ofTrao tr and Trailer and when one's specific plea of theappel ant-lnsurance Company is that the driver dt-r not have alicenre at all and in the absence of production ol. license orcopy tf the license before him, whether the Comrnissioner iscomp )teltt to entertain application in a case of death of driverin the absence of production of license or copy ol license isthe su rstantial question of law that arises lor considerarion,/of dr iver was occuned while he was on duty as <lriver ofTrao tr and Trailer and when one's specific plea of theappel ant-lnsurance Company is that the driver dt-r not have alicenre at all and in the absence of production ol. license orcopy tf the license before him, whether the Comrnissioner iscomp )teltt to entertain application in a case of death of driverin the absence of production of license or copy ol license isthe su rstantial question of law that arises lor considerarion,/

ii) The k amed Commissioner failed to see that the respondentNo. l/< pposite party No. 1 used the vehicle for comrnercialpurpos 3 duly violating as to the terms and conditions of, thepolicy. as such the appellant insurance conlpany is not liableto pa) compensation in such circumstances whether theComm ssioner is entitled to entertain application despiteviolatir ns and tenns and conditions of the policy try therespon( ent No.l/insured is also substantial question of lawthat arir es for consideration?No. l/< pposite party No. 1 used the vehicle for comrnercialpurpos 3 duly violating as to the terms and conditions of, thepolicy. as such the appellant insurance conlpany is not liableto pa) compensation in such circumstances whether theComm ssioner is entitled to entertain application despiteviolatir ns and tenns and conditions of the policy try therespon( ent No.l/insured is also substantial question of lawthat arir es for consideration?

5. Heard S'i A. Ramakrishna Reddy, learned counsel fbr theappellant/insur ince company and Sri Kota Subba Rao, learnedcounsel for tl e second respondent/second applicant. perused thematerial placed on record.

6. The lear led counsel for the appellant/insurance companysubmits that urder Section 2 (9) of the Motor Vehicles Act, l9gg,'driver' is defin:d to include, in relation to a motor vehicle which isdrawn by anotht r motor vehicle, the person who acts as a steer man of the drawn vehicle. Under Section 2 (10) of the Act, ['driving ]licence'is dellned to rrean the licence issued by a competent authority underChapter-ll authorising the person specified therein to drive, otherwisethan as a learncr, a motor vehicle or a motol vehicle of any specifiedclass or description. He further subrnitted that under Workmen'sCompensation Act, 1923, Section 2 (n) (ia) (c), "workman" meansany person who is a person recruited as driver, helper, mechanic,cleaner or in any other capacity in connection with a motor vehicle.

7, The learned counsel for the appellant/insurance companysubmits that since no driving licence has been produced by theapplicants to prove that the deceased person was holding a validdriving licence and that he was a driver employed by the owner of thevehicle, the Cornmissioner has erred in treating the deceased as aworkrran under Workmen's Compensation Act and awardingcompensation thereunder. ln supporl of this contention, the iearnedcounsel for the appellant relied upon a [judgment ]of the Hon'bleSupreme Court of India in Beli Ram Vs, Rajfuder Kumar & another[Civil [Appeal ][Nos.7220-7221 ][of 2011], ][dated ][23.09.2020 to ][argue ][that]it is the responsibility of the owner of the vehicle to verify whether theperson who is entrusted with the vehicle to drive the same possessed avalid licence or not. He therefbre submitted that since the drivinglicence was not filed either by the applicants or opposite partyNo.1/owner ol the vehicle, opposite parly No. l has not fulfilled the conditions of the insurance company and hence, the insurancecompany was rot liable to pay the compensation.

8. The lear red counsel for the appellant/insurance company alsoplaced relianc( upon a decision of this Court in CMA No.419 of 2006,dated 24.03.2 )21 wherein this Court held thar u,hen a specilicobjection was raised before the authority under the Workmen'sCompensation Act that the deceased did not have a valid Iicence, theburden is on t re applicants to establish that, as a matter ol fhct thedeceased was i mployed with the respondent/owner and further that hehad a valid dr ving licence at the time of the accident, and in theabsence of any evidence, the insurance company is not liatrle to paythe compensati rn. For coming to this conclusion, this Coufl relied onBeli Ram's casr (cited supra).

9. On the other hand, the learned counsel for the secondrespondent/sect nd applicant submits that the respondent,'ou,ner of tlievehicle had ck arly submitted befbre the learned Comrnissioner fbrWorkmen's Co npensation that he has verified the driving licence ofthe deceased Lefore employing him as driver ol the vehicle andtherefore, accor ling to him, the decisions relied upon by the insuranceCompany are n )t applicable to the case on hand. In support of hiscontention that where there is any ambiguity as to whether thepetitioner hetd r driving licence or not, the presumption should be drawn in favour of the workman, [the ][learned counsel ][for ][the ][second]respondent/applicant placed reliance on the [following ][decisions:]

i) Rita Devi v. New India Assurance [Co. ][Lttl. ][2000 [ACJ ][801].]

ii)Parminder Singh v. New India Assurance [Company ][Ltd. ]12019ACl240t.ACl240t.

iii) K. Varalaxmi v. [Jnited India Insurance [Co. ][Ltd. ][2015 [ACJ]2232).2232).

iv) Llnited India Insurance Co. Ltd. [v. ][Lehru ][2003 [ACJ ][6l ][1].]

v) laya Biswal v. Branch Manager, Iffco-Tokio [General ][Ins. ][Co, ][Ltd][2016 [ACJ ][721].][2016 [ACJ ][721].]

vi) P. Narasimha Redtly v. K Ramachander 12004 [(4) ][ALT ][51 ][11.]

vii) ZS. Shylaja v. Oriental Insurance [Co. ][Ltd, ]12014 [ACJ ][4801.]

viii) Oriental Insurance Co. Ltd,, [Tanuku ][v. ][M. Nagaraiu ]12021(3) ALD 227 ( P)1.(3) ALD 227 ( P)1.

ix) Nationat Insurance Co. Ltd., [Basheerbagh, ][Hyd. ][V. ][T. ][Sabitha][20r6 [( ][r) ALD ][6s6].][20r6 [( ][r) ALD ][6s6].]

x)Gurnail Singh v. Bajai Allianz General [Ins. ][Co. ][Ltd, ]12019 [ACJ]7r31.7r31.

xi) IJnited India Insurance [Co, ]Ltd,, Sec'bad [v. ][Vakiti ][Balraiu ]12012(3) ALD 661.(3) ALD 661.

xti) Gotla Rajanna Etc. Etc. v. the Divisional Manager [and ][Anr. ][Etc.]t2017 [(l) ][ACI ][SC-11.]t2017 [(l) ][ACI ][SC-11.]

10. Having regard to the rival contentions [and ][the ][material ][on]record, in respect of first substantial [questions ]of [law, ][the ][relevant]case law is the decision of the [Apex ]Court [in ][Beli Ram's ][case ][(cited]supra). In the said case, it [was ][held ][as ][under:]

"8. The only question which has been debated before us, is asset out at the inception of the [judgmenl. ][The ][appellant ][sought ][to]rely upon the recent [judgment ]of [this ]Court, [Nirmala ][Kothari ][v.]set out at the inception of the [judgmenl. ][The ][appellant ][sought ][to]rely upon the recent [judgment ]of [this ]Court, [Nirmala ][Kothari ][v.]

United h dia Insurance Company Limited tG020) 4 SCC 49J. Thequestion )f law exdmined in this judgment h,as as to what is theextent oJ care/diligence expected of the employer./insw.ed whileemplovin.' a driver. The legal position regarding the liability o/'theinsuran* company when the driver of the ol/bnding tehiclequestion )f law exdmined in this judgment h,as as to what is theextent oJ care/diligence expected of the employer./insw.ed whileemplovin.' a driver. The legal position regarding the liability o/'theinsuran* company when the driver of the ol/bnding tehiclepossessec, an invalid/fake driver's licence was od\tert(l to ./oranswerin! this qlestion, by refbrring to eorlier jtuliciulpronounc,ments and the same yvas culled out in paro l2 a.s under;pronounc,ments and the same yvas culled out in paro l2 a.s under;

" 12. l|/hile hiring a dri,er the employer is expe(te.l to rcrify ii the tlritvrh s, driying licence. lf the driver produces a licentt which on the lirce ofit lot l$ genuine, the employer is not expected to./itrther investigate intoh s, driying licence. lf the driver produces a licentt which on the lirce ofit lot l$ genuine, the employer is not expected to./itrther investigate intothe o thenticit! ofthe licence unless there is cause kt beliete othen|ise. Uthe e nployertinds the driver to be competent to drite the vehi<:le qrrl hassatis-ted himself that the drfuer has q driving licence there v,ould bc nobrea h of Section 1a9(2)(a)(ii) and the insurance company woukl beliabl. under the policy. It would be unreasonable to place such cr highonus on the insured to make enquiries wtth RTO| all over thi counrry rcascej,ain the veracily of the driving licence. However, d the insuroncecoml tny is able to proye ,hat the owner/insured wos aware or hot! notic.ethat i rc licence was fake or invalid and still permitted the person to d ve,the i turance compqny would no longer continue to be liable.liabl. under the policy. It would be unreasonable to place such cr highonus on the insured to make enquiries wtth RTO| all over thi counrry rcascej,ain the veracily of the driving licence. However, d the insuroncecoml tny is able to proye ,hat the owner/insured wos aware or hot! notic.ethat i rc licence was fake or invalid and still permitted the person to d ve,the i turance compqny would no longer continue to be liable.

9. 14 e have heard learned counsel for the parties and on o query bei, g raised, whether there is a view taken on the questionas to wha' would be the consequence of a t,alicl driving licenc.ehaving ex ired both the learned counsel for the appellant andlearned co mselfor respondent No.2 insurance compeny stated thatthere was to direct view on this point. We elen posed a questionqua any jL dicial view of the High Cottrts in this behatf, bt rhehaving ex ired both the learned counsel for the appellant andlearned co mselfor respondent No.2 insurance compeny stated thatthere was to direct view on this point. We elen posed a questionqua any jL dicial view of the High Cottrts in this behatf, bt rheanswer to the same was also in the negoti,e. ll/e resen-ecl thaorders bec ntse we wanted to satist'y ourselves ot'er this aspect.orders bec ntse we wanted to satist'y ourselves ot'er this aspect.

10. l'e have not been able to trace out an.v ol this.iudgnxent.s Court bul 'here are judicial pronouncements o/- the l-ligh Courrsdealing wit\ the issue. ["]

Thus, it can be ;een that in the said case, the question was as to whatwould be the c< nsequences of a valid driving licence having expired,whereas in the c ase before this Cour-t, the case is rvhether the deceaseddriver possesse, I valid driving licence at the time of accident. Theowner of the ve ricle/respondent No.l in the WC admitted in his chief examination that he had employed [the ][deceased ][workman ][as driver]after verifying liis dliving licence. [As ][held ][by ][the ][Apex ][Court ][in ][the]case of Nirmala Kothari [(cited ]supra), if the employer [verifies ][and ][is]satisfied that the driving licence appears to be [genuine, ][he ][is ][not]expected to further investigate into the authenticity of [the ][licence]unless there is reason to believe othelwise. [In ][this ][case, ][the ][deceased]was the driver and the claimants may not [have ]been [in ][a position to]produce the driving licence of the deceased. Therefore, [in ][the ][absence]of any negative evidence, the evidence of [the ][employer ][has ][to ][be]accepted.

11. In the case of K. Varalaxmi [(cited ]supra) [which ][has ][been ][relied]upon by the iearned counsel for [respondents, ][the Coordinate Bench ][of]this Court held that while interpreting the [provisions ][of ][benevolent]Act, where two views are [possible, ]the [view ][favourable ][to ][the persons]for whose benefit the Act is enacted, [has ][to ][be ][taken ][into]consideration to achieve the real object.

12. ln the case of Lehru [(cited ]supla), [the ][Hon'ble ][Suprerne ][Court]of India held as under:

"15............The aim and purpose being that an insurancecompany w'ould be available [to ][pay. ][The business ][of ][the company ][is]of insurance. ln all businesses there is an [element ][of ][risk. ][All]company w'ould be available [to ][pay. ][The business ][of ][the company ][is]of insurance. ln all businesses there is an [element ][of ][risk. ][All]persons carrying on business must lake risks associated wilh thatbusiness. Thus it is equitable that the [business ][which ][is ][run ]formaking profits also bears the risk associated [with it. ][At ][the ][same]tinrc innocent parties ,nust not be [made ]to suffer or [loss. ][These]business. Thus it is equitable that the [business ][which ][is ][run ]formaking profits also bears the risk associated [with it. ][At ][the ][same]tinrc innocent parties ,nust not be [made ]to suffer or [loss. ][These]

provisions [m ][rct ][these ][requirements ][We ][are ][thus ][in ][agreement ][t ][)t!11]what is [laid ][tlown ][it't ][aJorementioned ][cr.ses' ][viz ][' ][thctt ][in ][ortler ][to]avoid tiabili v [it ][is ][not ][sffictent ][lo ][show ][that ][the ][person ][driing ][at]the time [of ][r :cident ][was ][not ][dub) ][licensed' ][The ][insurctnce company]must establi [h ][that ][the ][breach ][v'as ][on ][the ][port ][oJ ][the ][insured ]["]

Thus, [the ][first ][su ][lstantial ][question ][of ][law ][is decided ][against the]appellant.

13. [As ][regard: the ][second substantial ][question ][of law ][is ][concerned']this Court [findi ][that ][in ][the ][case ][of ][United ][India ][Insurance ][Co" v']Vakiti [Balraju ][& ][others ][(cited ][supra)' ][this Courl held ][as ][under:]

"9 A strong [objection ][rctised ][on ][behalJ ][of ][the ][appellant ][is]rhat the [d'iver ][of ][the accident vehicle ][did ][not ][hold valtd ][licence']l/irtually, [no ][evidence ][was ][adduced ][in ][this ][regard ][Assuming ][th(tt]the drive [did ][not hold ][licence' ][that ][hardly would be ][of ][aryt]releyanceindeterminingtlleliabiliryartsingonaccountofthedeath of [another workman' ][Though ][Section ][147 ][of ][the ][Motor]Vehicles lct, [1988 ][manclates ][that ][an ][insurance ][policy ][token ][out ][in]respect [o'a ][vehicle ][shall ][cover ][the ][one ][arising ][under ][the ][Act' ][the]grounds [that ][can ][be ][raised ][by ][an ][insurer ][in ][this ][regard ][are]relativel; [restricted, ][compared ][to ][the ][claims ][under the ][Motor]Vehicles [Act, ][1988' ]["]

14. [Therefo'9, ][even ][if ][there ][is ][a ][violation ][ol ][the conditions ][of ][the]the [ir ][surance ][company ][is liable ][to ][pay ][the ][colnpensation ][and]policy, recover [the ][s ][rme ][from ][the owner ][of ][the ][vehicle' In ][this ][case' ][the ][copy]of the [insura lce ][policy ][is not filed ][to ][determine ][as ][to the ][coverage ][of]the [policy. ''herefore, ][no ][decision ][can ][be ][given ][on this ][issue as ][to]whether [the ][insured ][has ][violated ][the ][conditions ][of ][the ][policy']However, [tt e ][responsibiiity ][of ][the ][appellant towards the ][deceased ][is]

not absolved and this question of law is answered against theappellant.

15. The Civil Miscellaneous Appeal is accordingly dismissed. Noorder as to costs.

To,

16. Pending miscellaneous petitions, if any, in this CMA shall also stand dismissed.

SD/.B.S.CHIRANJEEVIJOINT REGISTRARSECTION OFFICER

//TRUE COPY//

1. ' The commissioner [for ][workmen's compensation ][and ][Assistant ][commissioner of]i;b.ri R;r.lir neoov oiJtrict-il'T.Aniaiah Karmika sankeshema Bhavan' RTC'X' Roads. Hvderabad-20 [(With ]Record)i;b.ri R;r.lir neoov oiJtrict-il'T.Aniaiah Karmika sankeshema Bhavan' RTC'X' Roads. Hvderabad-20 [(With ]Record)

2. one bC to sii A. [Ramakriihna ][Reddy, ][Advocate ]LOP-qCl

5. O;a CC to Sri [Mohammed Shakeel, Advocate ][[o-PUC]]

+. One CC to Sri Kota [Subba ][Rao, ][Advocate ][OPUC]

5. Two CD CoPies

6, One Spare [CoPY]PCSD.obr Jl/" w

4a-

HIGH COURT

DATED: 31112 2021

eIJUDGMENTl2-!22 [N]IB7 [Fti]CMA.No.236 cf 2007).'

DISMISSING l HE CMANO COSTSNO COSTS