CMA/560/2010 of NATIONAL INSURANCE COMPANY LIMITED Vs ITHARAJU JYOTHI AND 3 ORS on 29 December 2023

1. National lnsurance [Cornpany ][Limited, ][rep by ][its ][Divisional ][Manager]iio. oiui.ionit omce Regiency [House, Somaiiguda, Hyderabad']...APPELLANT/2'd [Opposite ][Party.]AND1. ltharaiu Jvothi, Wo.Late [Krishnaiah, Household ][Rl/o'Nerada ][Village,]Chitydl Mandal, Nalgonda [District.]2. ltharaju Latchaiah, [S/o.Ramachandru, ][Rl/o.Nerada ][Village, Chityal]Mandal, Nalgonda District.3. ltharaiu Shankaramma, [Wo.Lathaiah' ][Rl/o'Nerada ][Village, Chityal]Mandal, Nalgonda District.4. Sankula Venkata Swamy, [S/o.Subba Rao' Owner of Lorry Bearing]No.AP 16 TU 3995, S,V.S.Transports [F/o.Vidyanagar, Jaggaiahpet]Town, Kariashna District.

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...RESPONDENTS

CMAM P. NO: 1864 OF [2008]

Petition under Section 151 [CPC ][praying ][that in the ][circumstan@s]stated in the affidavit filed in support [of ][the ][petition, ][the ][High Court ][may be]pleased grant stay of operation of the decree and [judgement ][in ][WC]'tto.g+/2OOS [F] on the file of the Commissioner for Workmen'sCompensation and Asst. Commissioner [of ][Labour, ][at ][Nalgonda' dated ][2zlth]February, 2008 [pending ]disposal of the main [CMA.]

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Counsel for the Appettant : SRt. p HARINATH cUpTA, AdvocateCounset for the Respondent No.1, 2 & 4: Sri M.Kiran Reddy, Advocatecounset for the Respondent No. 3: sri A.Jagan, AdvocateThe Court made the foltowing ORDER:

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THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSTNI

crvlL MISCELLANEOUs

No.560 of2o10

JUDGMEIYT

I ' The present civil Miscelraneous Miscelraneous Appeal has been directedbeen directeddirectedagainst order dated 2S.O2.2OOI in W.C.No.94 of 2O05 (F) on theagainst order dated 2S.O2.2OOI in W.C.No.94 of 2O05 (F) on thefiIe of the Commissioner for Workmen,s Compensation andAssistant Commissioner for Labour, Nizamabad (hereinafterreferred to as .the CommissionerJ. The said case was filed byrespondent Nos. I to 3 herein seeking compensation for death ofone Itharaju Krishnaiah Workmen,s Compensation andAssistant Commissioner for Labour, Nizamabad (hereinafterreferred to as .the CommissionerJ. The said case was filed byrespondent Nos. I to 3 herein seeking compensation for death ofone Itharaju Krishnaiah (hereinafter referred to as teceased) inan accident that occurred on I2.O3.2OO5 and the sarne was par-tlyallowed by the Commissioner granting compensation ofas teceased) inan accident that occurred on I2.O3.2OO5 and the sarne was par-tlyallowed by the Commissioner granting compensation ofRs.3,97, 16g/_. Aggrieved by the same, the present Civilpresent CivilMiscellaleous Appeal is filed at the instance of opposite parerNo.2 before the Commissioner i.e., the insirrarrce company.Commissioner i.e., the insirrarrce company.

The present civil Miscelraneous Miscelraneous Appeal has been directedbeen directeddirected

2. The appellalt herein is opposite party No.2, respondentNos. I to 3 herein are applicants and respondent No.4 herein isopposite party No.1 before the Commissioner. For the sake ofconvenience, the parties are hereinafter referred to as they werearrayed before the Commissioner.

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3. The brief facts of the case of [the ][applicants ][are ][that]applicant No.l is wife and applicant [Nos.2 ][and ][3 ][are parents ][of]the deceased. The deceased [was working ][as ][driver ][on ][lorry]bearing No.AP 16 TU 3395 under [employment ][of ][opposite ][part5z]No.1. On 12.03.2005 at about [O2:10 ][AM, ][the ][deceased ][was]proceeding from Vijayawada to Hyderabad [and when he ][reached]near Vijaya Kumar Poultry Farm, [Batasingaram, ][another ][lorry]bearing No.AP 7 V 3177 [proceeding ]in [front of the ][lorry ][of ][the]deceased took right side turn [and ][dashed ][the lorry ][of ][the]deceased. As a result, the left [side ][indicator ][of ][the lorry ][of ][the]deceased broke into pieces. [When, ][the ][deceased ][stopped ][the lorry]and questioned him, the said [lorry ][driver ][abused ][him ][and ][beat]him with an iron rod on his head and [face, ][due ][to ][which ][the]deceased sustained grievous injuries and [died on ][the ][spot. ][In this]regard, a case was registered in Crime [No.11O ][of ][2OO5 ][on ][the file]of Hayathnagar Police Station.

4. It is further the case of the applicants that [the ][deceased ][was]aged about 29 years and he was being [paid ]an [arnount ][of]Rs.4,SOO/ - per month towards wages [by ]opposite [party ][No. ][1 ][. ][The]aceidcrrt occurred during the course and [out ][of employment ][of ][the]

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deceased under opposite party No.1. The lorry bearing No.AP 16TU 3995 driven by the deceased was owned by opposite party No. Iand insured with opposite party No.2. Hence, the present claimapplication is liled by the applicants sedring compensation ofRs.4,50,000/- for death of the deceased.and insured with opposite party No.2. Hence, the present claimapplication is liled by the applicants sedring compensation ofRs.4,50,000/- for death of the deceased.

5. Opposite party No.1 remained ex parte. Opposite party No.2Iiled its counter denying the averments of the claim applicationsuch as age, wages, marner of the accident, death of the deceasedand also employee and employer relationship between thedeceased and opposite party No.l. The compensation claimed bythe applicants is excess and exorbitant. Hence, opposite partyNo.2 prayed to dismiss tl-e claim application.

6. In support of their case the applicants got examined P.W.land got marked Exs.A-I to A-5. Opposite part5r No.2 gotexamined R.W. I and got marked Exs.B-l to B-3, in support of itscase

7. On the basis of the above pleadings and evidence, theCommissioner framed the following issues for consideration:

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"1. Whether the deceased is a workman within the meaning ofthe Act and whether he died during the course of employmentunder opposite party No.1?

2. If so, what is the monthly wages drawn by the deceasedworkman?

3. What was the age of the workman at the time of the death?

4. Whether the applicants are entitled to compensation? If so,to what extent?"

8. After considering the eyidence and documents filed by bothsides, the Commissioner awarded an amount of Rs.3,97,f68/-towards compensation to the applicants. Aggrieved by the same,the present appeal is filed by opposite party No.2.

9. Heard, both sides.

10. The main contention of the learned counsel for theappellant/opposite party No.2 i.e., the insurance company is thatthe policy does not cover the liabitity of the driver as no additionalpremium is paid to cover the risk of the driver. However, withoutconsidering the sarne, the Commissioner has awardedcompensation to the applicants. Hence, prayed to allow theappeal and set aside the impugned order.

11. Per contra, the learned counsel for the respondent Nos.l to3 / appft:ants contended that the Commissioner after considering ==7

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the evidence on record has rightly [awarded compensation ][and]interference of this Court is unwarralted. [Hence, ][prayed ][to]dismiss the present appeal.

12. Now, the point for determination [is ][as follows:]

"Whether the applicants are [entitled ][for compensation ][as]granted by the Commissi'cner?'

Point:-

13. This Court has [perused ]the entire [evidence ][and ][documents]

placed on record by both the parties. [Applicant ][No. ][1 ][got ][examined]herself as A.W. I and reiterated the [contents ][of ][the ][claim]application. She also relied upon [Ex.A- ][1 ][copy of ][First ][Information]Report, Ex.A-2 copy of inquest report [and ][Ex.A-3 charge ][sheet. All]these documents clearly disclose about [the ][accident ][and ][death ][of]the deceased in the said accident. [Ex.A-2 clearly discloses ][that ][the]deceased was working as driver. [Further, ][Ex.A-3 ][post ][mortem]examination report reflects that the [deceased ][died ][due ][to ][head]injury. Therefore, there is no doubt [with ][regard ][to ][death of ][the]deceased in the accident that occurred on [12.03.20O5 ][and]employment of the deceased under opposite [party ][No.1.]Furthermore, Ex.A-S clearly discloses that the [deceased ][was]

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having valid and effective driving license as on the date of theaccident.

14. . On the other hand, in support of their case opposite partyNo.2 got examined their kgal Assistant as R.W. l. R.W.1 deposedthat the policy under Ex.B-2 does not cover the driver, as theowner of the vehicle did not pay extra premium for covering therisk of the driver, as such, opposite party No.2 is not liable to paycompensation. In the cross-examination, he stated that in theregistration certificate of the vehicle, it is mentioned as ttre seatingcapacity of the vehicle is three in number, the registration numberof the vehicle is AP 16 TU 3995 and the insurance policy wascomprehensive in nature. He further stated that in the presentcase, the driver was hit by a rod by driver of another vehicle.Therefore, the accident did not occur during the course and out ofemployment of the deceased.No.2 got examined their kgal Assistant as R.W. l. R.W.1 deposedthat the policy under Ex.B-2 does not cover the driver, as theowner of the vehicle did not pay extra premium for covering therisk of the driver, as such, opposite party No.2 is not liable to paycompensation. In the cross-examination, he stated that in theregistration certificate of the vehicle, it is mentioned as ttre seatingcapacity of the vehicle is three in number, the registration numberof the vehicle is AP 16 TU 3995 and the insurance policy wascomprehensive in nature. He further stated that in the presentcase, the driver was hit by a rod by driver of another vehicle.Therefore, the accident did not occur during the course and out ofemployment of the deceased.

15. It is pertinent to state that there is no dispute regarding theemploSrment of the deceased as driver under opposite party No.l.The deceased died while he was on duty as driver of the vehicle. [fthe deceased is aware of the incident, he would have taken somemeasures to avoid the death. In the case of an accidenta-l death,

MGP,JcMA_560-2010

the deceased [had ][no ][control on the incident wherein ][he ][died' ][Had]

he got [prior ][knowledge ][or presumption ][of ][his ][death on ][that ][day' ][he]might not [have ][indulged ][in ][altercation ][with ][driver ][of ][another ][lorry']As the [death ][occurred ][during ][the ][course ][of ][his ][employment']opposite [party ][No'2/insurance ][company ][is ][bound ][to ][pay ][the]compensation. [Moreover, ][if ][the ][deceased ][knows ][that ][he ][would ][be]hit with [rod ][by the ][driver of ][alother lorry' ][he would ][not ][have ][got]involved [in ][altercation. ][Therefore, ][it ][iS ][clear ][that ][the ][death ][of ][the]deceased [is ][unexpected ][and ][without ][his ][knowledge ][during ][the]course [of ][employment ][under ][opposite ][party ][No' ][1' ][Further' ][ttre]was [in ][force ][as ][on the ][date ][of ][accident' ][Hence' ][opposite]policy No.2/insurance [company ][cannot ][avoid ][its ][liability ][to ][pay]party comPensation [to ][the ][aPPlicants ][']

16. ItispertinenttostatethattheinsurancepolicyunderEx.B-2was in [force ][as on ][the ][date ][of ][the ][accident' ][However' ][the ][main]dispute [raised ][by the ][rearned counsel ][for ][the ][appelrant/opposite]No.2 [is ][that ][there is ][no ][additional ][premium ][paid ][to ][cover the]party risk of driver. [In ][this ][regard' ][it ][is apt ][to ][refer ][to the ][decision of ][the]

Hon'ble Apex [Court ][in ][the ][case ][of ][Orlental ][fnsurance ][Company]

Limited v. [Meena ][Variyall, ][wherein ][it ][was ][held ][as ][under:]

"Uninfluenced by [authorities, ][we ][find ][no ][difficulry ][in]' . this [provision ][as ][one providing ][that ][the]understanding policy must insu.e [an owner against any ][liability ][to a ][third]patty "au"ea by or arising [out ][of the ][use.oJ ][the vehicle ][in ][a]pubiic ptace, and [against ][death ]. [or ][bodily ][injury ][to ][any]p"""..tg.. of a [public ][service vehicle caused ][by ][or ][arising]out of the [use ][of ][vehicle ][in ][a ][public ][place' ][The ][proviso]clarifies that the [policy shall ][not ][be ][required ][to ][cover an]employee [of ][tJle ][insured ][in ][respect of ][bodily ][injury ][or death]alsin! out [of ][and ][in ][the ][course ][of his ][employment' ][Th-en']an exJeption [is ][provided ][to the last ][foregoing ][to ][the ][effect]that the [policy ][must ][cover ][a ][liability ][arising ][under ][the]Workmenis Compensation [Act, ][1923 ][in ][respect ][of ][the]death or bodily [injury to ][an ][employee ][who ][is ][engaged ][in]driving tfre [vehiclL ][or ][who ][serves ][as ][a ][conductor ][in ][a]public service vehicle or [an ][employee ][who travels ][in ][the]vehicle of the [employer ][carrying ][goods ][if it ][is a ][goods]carriage. Section [149(1), ][which ][casts ][an obligation on ][an]insure"r to satisfy [an ][award, also ][speaks ][only of ][award in]respect of such ii"Uitity [as ][is ][required ][to. ][be covered ][by ][a]policy under clause [(b) ][of ][subsection ][(1) ][of ][Section ][147]iU"i"!. [fiability ][covered ][by ][the ][terms ][of the ][policy)' ][This-]proviiion cannot therefore [be ][used to enlarge the ][liability ][if]it does not exist in [terms of ][Section ][147 ][of ][tl,e ][Act ][14' The]oU;ect of the insistence [on ][insuran'ce ][under ][Chapter ][XI ][of]ttre Rct thus seems [to ][be ][to ][compulsorily ][cover ][the ][liability]to their [person ][or ][properties of ][third ][parties ][and in]relating respecf of employees [of the ][insured ][employer, ][the ][liability]thal may arise under [the ][Workmen's Compensation Act']1923 in respect of [the ][driver, the ][conductor ][and ][the ][one]carried in a goods [vehicle ][carrying ][goods'"]

17 . Admittedly, the [vehicle ][involved ][in ][the ][accident ][is ][a ][goods]carrying vehicle. In view of the [above ][discussion ][and ][considering]\the\principle laid down in the [above ][said decision ][and ][since ][the]

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deceased was not a [gratuitous ][passenger ][and ][as he ][was ][an]employee rendering his [services ][to ][opposite ][party ][No' ][1 ][under]employee-employer [relationship, ][the ][contention ][of ][the ][learned]counsel for the appellant/opposite [party ][No.2 ][that ][the ][policy ][does]not cover the risk of the [deceased ][being ][driver, ][is ][unsustainable.]Therefore, opposite [party ][No.2 ][is ][liable ][to indemniff ][the ][opposite]party No.1 i.e., owner of the [vehicle.]

18. Even otherwise, the [contention ][of ][the ][opposite ][party ][No'2]

before this Court is [certainly ][based ][on ][question ][of ][fact' ][The]Hon'lcle Supreme Court, [in ][the ][case ][of ][Gotla ][Rajanna ][v' ][The]Divlsional Manager2 [held ][that as per the ][scheme ][of ][tJle]Workmen's Compensation [Act, ][1923, ][the ][Commissioner ][is ][the ][last]authority on facts. In [view of the ][principle laid ][down ][in ][the ][above]said case, since the [contentions raised ][by ][the ][learned counsel for]the appellant/opposite [party ][No. ][2 ][are based ][on ][questions ][of ][fact']it is evident that scope [of ][appeal ][under ][Section ][3O ][of ][tl-e]Workmen's Compensation [Act, ][1923, ][is ][very ][limited, ][thereby ][the]Iambit of interfering with [the ][order ][passed ][by the ][commissioner is]0also limited until and [unless ][the ][order ][passed ][by ][the]Commissioner is [perverse ][or ][when there ][is ][patent irregularity ][or]'2017 [(2) ][ALD ][t4 ][(sc)]

illegality committed by the Commissioner while passing the impugned order. Moreover, when two interpretations are possible,the interpretation, which is favourable to the applicants, shall betaken into consideration, since the Workmen,s Compensation Act,1923' is a beneficial legislation enacted to protect the interest ofworkmen.

19. In view of the above discussion, this Court is of the considered opinion that the Commissioner after considering all theaspects has graated just and reasonablecompensation andrnterference of this Court is unwarrarted.The appeal is devoid ofmerits arrd the same is liable to be dismissed.

20. In the result, the Civil Miscellaneous Appeal is dismissed confirming the order dated, 25.02.20O8 in W.C.No.94 of 2OO5 (F) onthe file of the Commissioner for Workmenb Compensation andAssistant Commissioner for Labour, Nizamabad. There sha-ll be noorder as to costs. _Mis-cellaneous appeal, if any, shall stand closed.

sd/- K. sRlNtVASA RAOJOINT REGISTRAR

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HIGH COURTDATED:2911212023

ORDER

CMA.No.560 of 2010

CMA is Dismissed.

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