CMA/532/2012 of THE NATIONAL INSURANCE COMPANY LIMITED Vs SMT. D. RENUKA AND ANOTHER on 29 December 2023

1. Smt. D. Renuka, W/o. D. Eshwaraiah, Coolie, Ryo. yathamathapur Village,Tadur Mandal, Mahabubnagar District.Tadur Mandal, Mahabubnagar District.

...RESPONDENTS/APPLICANTSAPPLICANTS

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2Sri S. Yallareddy (Major), S/o. Sri S. Anjaiah Owner of the Tractor and Trailer;bearing No-AP 22 T 8944,8945 Ryo. Yathamathapur Vi age, Tadur Mandat, rMahabubnagar District. :bearing No-AP 22 T 8944,8945 Ryo. Yathamathapur Vi age, Tadur Mandat, rMahabubnagar District. :

...RESPONDENT/1 [ST ]OPPOS]TE PARTY i$

CMA MP. NO: 1303 OF 2009

::l:: :il':;":il:: ",6, ffiffi4t 12OOS 12OOS on the file of .ft.ff of .ft.ff i ,,, ::l:: :il':;":il:: ^ [" ][I,i:':",:, ][;H ][l,'ffJ;I ][:; ][;Jl"il:f ][I ][1 ]",6, ffiffi:il':;":il:: ^ [" ][I,i:':",:, ][;H ][l,'ffJ;I ][:; ][;Jl"il:f ][I ][1 ]",6, ffiffigrant stay of operation of the decree and order in WC_No. 4t 12OOS 12OOS on the file of .ft.ff of .ft.ff ithe Commissioner for Workmen's Compensation and Assistant commissioner "il of :LabouratMahabubnagardated2o.o3.2009,pendingdisposaloftheaboveCMA.LabouratMahabubnagardated2o.o3.2009,pendingdisposaloftheaboveCMA.

Counsel for the Appellant: SRI G. RAJKUMAR

Counsel for the Respondents: ----

The Court delivered the following: JUDGMENT

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THE HONOURABLE SMT. JUSTICE M.G.PRryADARSINICIVIL MISCELLANEO US APPEAL No.532 OF 2Ot2JUDGMENT:

Aggrieved by the Order dated 20.O3.2OOg inW.C.No.47 of 2OO5 passed by the learned Commissioner forW.C.No.47 of 2OO5 passed by the learned Commissioner forWorkmen's Compensation and Assistant Commissioner ofLabour, Mahabubnagar, the opposite party No.2-InsuranceCompany has filed the present Civil Miscellaneous Appeal.Labour, Mahabubnagar, the opposite party No.2-InsuranceCompany has filed the present Civil Miscellaneous Appeal.

02. For the sake of convenience, hereinafter, theparties will be referred as per their array before the learnedAssistant Commissioner (hereinafter will be referred as"Commissioner").

03. The brief facts of the case are that the applicanthled an application under the provisions of Workmen,sCompensation Act, 1923 (now amended as Employee,sCompensation Act, 1923) claiming compensation ofRs.4,OO,OOO/- alleging that she was employed by oppositeparty No.2 as labour on the Tractor and Trailer bearing No.AP 22 T a944 and 8945 (hereinafter will be referred asVehicle), which was insured with opposite party No.2. The

applicant, who was aged [about ][2O ][years ][at ][the ][time ][of]accident, was paid wages @ [Rs.15O/- ][per ][day' ][On]24.06.2004 the applicant [proceeded ][on the ][said ][vehicle]towards Nagarkurnool and [when the ][vehicle reached near]Tadur gate, the driver of the [vehicle drove ][it ][in ][rash ][and]negligent manner, due [to ][which the ][vehicle ][turned ][turtle]resulting in accident. [The ][applicant ][was shifted ][to]Government Hospital, [Nagarkurnool and after ][frrst-aid, ][she]was referred to Government [Headquarters, Mahabubnagar]as an in-patient. The applicant [has spent ][an ][amount ][of]Rs.5O,O0O/- towards [medical ][expenses ][and other ][expenses']The applicant sustained mal-united [fracture ][of left ][femur]with post traumatic knee stiffness [and ][shortening ][of ][left]lower limb of about 2 [V, ][rnclrres ][and simple ][injuries ][all ][over]the body. Due to the [accident, ][the ][applicant ][became]disabled and unable to work [as ][coolie ][and ][thereby ][lost ][her]source of income. A [case ][in ][Crime ][No.39 ][of ][2OO4 ][on ][the]file of Tadur Police Station [was registered ][against the driver]of the vehicte. Since the [insurance policy was ][subsisting]as on the date of the [accident, ][the ][opposite ][party ][No' ][1]being the owner of the [vehicle ][and ][opposite ][party ][No ][2]

being the insurer of the vehicle, are jointly and severallyliable to pay the compensation of Rs.4,OO,OOO/- to theapplicant.

04. The opposite party Nos.l and 2 filed theirrespective counters, wherein opposite party No. I admittedthe employment of the applicant under him, however,stated that the applicant was paid Rs.lOO/- per day aswages. On the other hand, opposite party No.2 denied theaverments of the application including employee-employerrelationship between applicant and opposite part5r No. l,wage and age of the applicant, driving license of the driverof the vehicle etc., and that there is no privity of contractand that the insurance policy was issued under farmer'spackage and the opposite party No.1 used it for commercialpurpose, which is violation of terms and conditions of thelnsurance policy and thus, prayed to dismiss the claimapplication.

05. Before the learned Commissioner, on behalf of the applicant, the applicant herself was examined as AWIand the Orthopedic Doctor, Civil Assistant Surgeon, Government District Hospital was examined as AW2 [and]got marked Exs.Al to A5. Exs.Al to A3 are copies of FIR,charge sheet, insurance policy. Ex.A4 is the [certihed ][copy]of the wound certificate and Ex.A5 is the disabilitycertificate issued by AW2. On behalf of [opposite No.1, ][no]oral or documentary evidence is adduced. On behalf [of]opposite party No.2, its Junior Assistant [was examined ][as]RWl and Ex.Dl Insurance Policy of the [vehicle ][was]marked.

06. The learned Commissioner after [considering ][the]

evidence on record, both oral and documentary, [by]determining the wages of the applicant as Rs.2,320-5O/-paise per month and by applying the relevant factor'224.OO' for the age of the applicant being [2O ][years, ][has]awarded compensation of Rs. I ,24,7 23 / -.

07 . Dissatished by the compensation awarded [by]the Commissioner, the Opposite Party No.2 has filed [the]present appeal to set aside the impugned order.

08. Heard both sides and perused the record

09. The sole contention of learned StandingCounsel for the opposite party No.2 is that no additionalpremium was paid to cover the risk of applicant, however,the learned Commissioner awarded the compensation. Inorder to establish its contentions, the opposite party No.2examined its Junior Assistant as RWl, who deposed thatone employee is covered besides owner cum driver and noother liability to cover except the two. It is not the case ofthe opposite party No.2 that there are other employees onthe vehicle other than driver and applicant at the time ofaccident. Thus, the applicant, who was travelling in thevehicle at the time of accident as a coolie, will definitely becovered under Ex.Dl insurance policy. Even otherwise, itis to be seen that in Oriental Insurance CompanyLimited v. Meena Variyal and othersr, the HonourableSupreme Court observed as under:

"Uninfuenced bA authont[es, we rtnd no dilfic1l.lty inunderstanding this prouiston as one prouiding that thepolicy ntust it'tsure qn owner against ang liabilttg to a thirdparl!! caLtsed bg or aising out of tLE use of the uehicle in qpublic plocc, and against death or bodilg injury to anypassenger of a public serace ueh[cle caused bg or ari.singout of the use of uelicle in a public place. The proutsoclaifics tltot the policg sholl not be required to couer anemplotlee of lhe insured in respcct oJ bodilg injury or deathorisinq out of and in thc course of his emplogment. Then, an exception is [prouided ][to ][the ][lo,st ]Joregoing [to ][the ][efkct ][that]the policg must couer [o ][liabililg ][ansing ][undcr. ][the]Worimen;s Compensation [Act, ][1923 ][in ][respect ][of ][the ][death]or boditg injury [to ]an [emplogee ][uho ][is ][engaged ][in ][driuing]the uehicte or utho serues [as a ][conductor ][in ][a ][pubLic ][seruice]uehicle or an emplogee [tDho ][trauels ][in ][the ][uehicte ][of ][the]emploger carrying [goods ][if ][it ][is ][a ][goods ][carriage ]lal1l1, which.oiti on [obligation ][on ][qn ][Lnsurer ][to ][sattsfA]an antard., also speaks [onlg ][of award ][in ][respect ][of ][such]ticrbititg as is required to [be ][couered ][bg ][a ][policY ][under]clausi 1U1 of subsection [(1) ][of ][Section ][147 ][(being ][a ][habilittl]couered bg the terms oI [the ][policg). ][1'his ][proursion ][carutot]therefore be used to [enlarge ][the tiabilitg ][rf ][it ][does ][ttot ][cxi,st]ift term.s of Section 147 of [the ][Act. 14. ][The object ][of ][thc]insistcnce on [insurance ][under chapter ][XI ][oJ ][the ][Act ][thus]seem.s to be to compulsorilg [couer ][the ][liabilitA relating ][to]their person or [properties ][oJ ][third parties and ][in ][respect ][of]emplogees of the insured [emploger' ][the ][lktb ][itg ][lhat ][may]oise under the Workmen's [Cot ][tPcnsatiotl ][Act, ][1923 ][it1]respect of the diuer, [the ][conduclor ][ond ][thc- ][one ][carried in ][Q]goods uehicle carrgtng [goods."]

10. Admittedly the [vehicle involved ][in ][the ][accident ][is ][a]goods carrying vehicle. In [view ]of [the ][above ][discussion ][and]the [principle ][laid ][down ][in ][the ][above ][said ][decision]considering and since the applicant [was ][not a gratuitous ][passengcr ][and ][as]the applicant was an [employee ][rcndering ][her ][scrvices ][to ][the]opposite party No.1 under [employee-employer ][relationship, ][the]contention of the [learned Standing Counsel ][for the ][opposite]party No.2 that the policy does [not ][cover ][the ][risk ][of ][applicant]being coolie, is unsustainable- [Therefore, ][the ][opposite party]No.2 is liable to indemnify [the ][opposite ][party ][No ][L ][i ][e', ][owner ][of]the vehicle.

11. Even otherwise, the contention of the opposite party No.2 before this Court is certainly based on question of fact.The Honourable Supreme Court in North East Karnataka Road Transport Corporation v. Sujathaz held as under:

"9. At the outset, Lue mog take note oJ the fact, beinga settled pnnciple, tlrct Lhe question as to LDhether theemplogee met with an accident, whether the [qccident]occurred duing the course of employment, whether tt aroseout of an enployment, how and tn u.)hat manner thea settled pnnciple, tlrct Lhe question as to LDhether theemplogee met with an accident, whether the [qccident]occurred duing the course of employment, whether tt aroseout of an enployment, how and tn u.)hat manner theaccident occurred, wlp was negligent in causing theaccident, whether there eisted ang relationship ofemptoyee and emploger, u,hat was the age and monthlgsalarg of lhe emplogee, how mang [qrc ]the dependents ofthe deceased emplogee, Lhe extent of disabilitg cqused tothe emploAee due lo injuies suffered in an accidenLwhether there was ang insurance couerage oblained bA theemployer to coL,er thc ncident etc. are some oJ the- materialissues uhich arise for the just dectsion of the Commissionerin [q ]claim petition when an emplogce suffers any bodilyinjurg or dies duing the course of his emplogment andhe/ his LRs suelsi hrs emploger to claim compensationunder the Act.accident, whether there eisted ang relationship ofemptoyee and emploger, u,hat was the age and monthlgsalarg of lhe emplogee, how mang [qrc ]the dependents ofthe deceased emplogee, Lhe extent of disabilitg cqused tothe emploAee due lo injuies suffered in an accidenLwhether there was ang insurance couerage oblained bA theemployer to coL,er thc ncident etc. are some oJ the- materialissues uhich arise for the just dectsion of the Commissionerin [q ]claim petition when an emplogce suffers any bodilyinjurg or dies duing the course of his emplogment andhe/ his LRs suelsi hrs emploger to claim compensationunder the Act.

1O. The aforernentioned questions are essentiallgthe questions of facl ond therefore, thell ctre rcquired to beproued with the [qid ]of eukletrce. Once theg are prouedeither waA, the fi.ndings recorded thereon are regarded asthe fndings of facL

I I . The appeal prouided under Sectton 30 of the Actto the High Court against the order of lhe Commissioner liesonlg against the specrfc orders set out in clauses (o) to (e) ofSection 30 of the Acl Luitlt a further ider contained in thefi.rst [prouiso ][to ][the ][section ][that ][tlte ][qppeal must ][inuolue]substantial questions of latu.

12. In other Luords, the appeal prouided underSection 3O oJ the Act lo the High Courl against the ord.er ofthe Commissioner is not like a regular rtrst appeal akin toSection 96 of the Code of CiuiL Procedure, 19O8 which canbe heard both on lacts and law. The appellate [jurisdiction]oI the High CoLLrt to decide the appeaL is confned onlA toexamine the s(b-slanrial [questrcns ]of law arisrng in thecase ["]

12. Even in Golla Rajanna etc., v. The [Divisional]Manager and another etc.,3 the Honourable [Supreme Court]held under the scheme of the Act, the Workmen's [Compensation]Commissioner is the last authority on facts. In [view ][of ][the]principle laid down in the above said authorities, [since ][the]contentions raised by the learned Standing [Counsel ][for ][the]Opposite Party No. 2/Insurance Courpauy [are ][bascd ][on]questions of fact, it is evident that scope of [appeal ][under]Section 30 of the Employee's Compensation [Act ][is very limited,]thereby the ambit of interfering with [the order ][passed ][by ][the]learned Commissioner is also limited until [and ][unless the order]passed by the learned Commissioner is pen'erse or [when ][there]is patent irregularity or illegality committed bv the [learned]Commissioner while passing the impugned [orcier. ][Moreover,]when two interpretations are possible, the interprelation, [which]is favourable to the claimant, shall be taken tnto [consideration,]since the Workmen's Compensation Act (now [trmployees']Compensation Act) is a beneficial legislation enacted to [protect]the i nterest of employees.

13. Further, the learned Commissioner after [taking ][into]consideration of the age, wages, loss of earning [capacity ][had]

awarded reasonable compensation, for which this Court do notfind any reason to interfere with the same.

L4. In view of the above discussion, this Court is of the considered view that the learned Commissioner afterconsidering all the aspects has rightly awarded compensation inconsidering all the aspects has rightly awarded compensation infavour of the applicant. Thus, there is no infirmity orirregularit5r in the order passed by the learned Commissioner.irregularit5r in the order passed by the learned Commissioner.Hence, the Civil Miscellaneous Appeal is devoid of merits and itis liable to be dismissed.is liable to be dismissed.

15. Accordingly, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.

As a sequel, pending Miscellaneous applications, if any,shall stand closed.

//TRUE COPY//

SO/- K SRINIVASA RAOJOINT REG STRARSECTION OICER

To,1 . The Commissioner for Workmen's [Compensation ][and ][Assistant]Commissioner of Labour, Mahabubnagar [(with ][records)]2. One CC to Sri G Rajkumar, Advocate [OPUC]3. Two CD CopiesPlpKMS

HIGH COURTMGP, JDATED: 2911212023

JUDGMENTCMA.No.S32 of 2012

DISMISSING THE APPEALWITHOUT COSTS\12\ "\rq"b"r>

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