Divisional v. Sri

Sri A.Akkula, S/o. Kannayya, major, D.No. 26-12-68/1 Padmanagar, Near Lakshmi Talkies, Visakhapatnam District. V ...Respondent No.4/Respondent No.1 I.A. NO: 2 OF 2011(CMAMP. NO: 1725 OF 2011) Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay the operation of the order passed in WC NO. 6 of 2009 on the file of the Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-1, Visakhapatnam including the withdrawal of the amount deposited pending the disposal of the CMA. Counsel for the Appellant : Sri B Paramesewara Rao Counsel for Respondent Nos.2 & 3: Sri G Venkata Reddy Counsel for Respondent Nos.1 & 4: None Appeared The Court made the following: APHC010448062011 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3460] (Special Original Jurisdiction) TUESDAY, THE EIGHTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO: 1319/2011 Between: The New India Assurance Company Ltd., ...APPELLANT AND Sri Ayithi Appa Rao & 3 Others ...RESPONDENT(S) Counsel for the Appellant:

1. B PARAMESEWARA RAO Counsel for the Respondent(S):

1.G VENKATA REDDY The Court made the following: 1 r THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL N0.1319 of 2011 JUDGMENT:

1. The present Civil Miscellaneous Appeal under Section 30 of the Workmen’s Compensation Act, 1923 questioning the Order dated

25.03,2011 in W.C.No.6 of 2009 passed the Commissioner for Workmen’s Compensation Act, Visakhapatnam and Assistant Commissioner of Labour, Visakhapatnam.

3. O.P.No.2-lnsurance Company is the Appellant herein. The facts leading to filing of the present appeal are as follows:- One Ayithu Raju (hereinafter referred to as “deceased”) was working as a Cleaner in a lorry bearing No. AA-V-4676 owned by O.P.No.1. On 13.12.2008, while the deceased was going in the lorry as per the instructions of O.P.No.1 from Gnanapuram Lorry Yard towards Dock yard godowns for transportation of Urea via Convent Junction, when the vehicle reached Convent Junction, the lorry driver collided against his side retaining wall of the flyover bridge and as a result, the deceased, who was by the side of the driver fell down on the road and sustained grievous injuries. Immediately, the deceased was shifted to K.G. Hospital, Visakhapatnam for better treatment. spinal cord of the deceased was fractured, the deceased Since the succumbed to his injuries while undergoing treatment on 19.03.2009.

4. A case F.I.R. No.40 of 2008. As the vehicle was insured with O.P.No.2 vide Policy bearing registered Traffic Police application was filed No.620102/31/08/040001314, compensation. As the 20.08.2009, deceased was being paid monthly wage of Rs.3,500/- per month and aged about 22 years, compensation amount of Rs.3,87,397/- was sought by the Claimants i.e. father and sisters of the deceased.

21.08.2008 seeking 2

5. O.P.No.1 i.e. employer was remained ex parte in the case while O.P.No.2-lnsurance Company filed their counter denying the contents of the claim application.

6. On the basis of the pleadings, the Commissioner framed the following issues for consideration;- 1) Whether there exists the employer and employee relationship between the opposite party-1 and deceased? 2) If such relation exists, whether the deceased died due to the accident occurred during the course and arising out of employment not? 3) If so what amount of compensation, the applicants are entitled to receive and who has to pay?

7. During pendency of the application, the Claimant No.1 i.e. the father of the deceased died on 13.11.2009. The Claimant No.3 being minor at the time of accident was dependent on the income earned by her deceased brother, while another sister i.e. Claimant No.3 was married and living with her husband at Rajahmundry.

8. The Claimant No.2 i.e. Ayithi Venkata Varalakshmi examined herself as A.W.1 and got marked Exs.A.1 to A.5 i.e. F.I.R, Inquest report, Post Insurance policy and Death Certificate mortem Report, Charge Sheet, respectively in support of their claim. One A. Appa Rao was examined A.W.2. He had deposed that he was an eye witness to the accident. The Claimant No.3 i.e. P. Nagamani was also examined as A.W.3 and she reiterated accident, of the deceased. The A.Ws 1 and 3 reiterated their claim averments.

9. On behalf of O.P.No.2-Insurance Company, one G. Ramakrishna (Administrative Officer) was examined as R.W.1 and he filed Ex.B.1 Insurance Policy and Ex.B.2 Abstract of License. He stated that the accident 3 vehicle was insured with O.P.No.2 and the policy was not in force at the time of the accident. He further stated that the Insurance Company has got the matter investigated and that the driver of the offending vehicle was not holding valid and effective license as on the date of the accident.

10. One V.A. Krishna Mohan, Senior Assistant of R.T.A. Visakhapatnam was also examined as R.W.2 and through him Ex.B.3 i.e. Letter of R.T.A was marked. He deposed that license of L.M.V was issued on 19.12.2003 for the period of three years i.e. upto 18.12.2006 in favour of the driver and the driver of the vehicle did not have valid driving license at the time of the accident, as he had applied for renewal on 17.07.2009.

11. The Commissioner taking consideration documentary evidence held that the accident occurred during the course of employment and that there is a valid insurance policy for the period from

21.08.2008 to 20.08.2009 and considering the age and the minimum wages fixed under G.O.Ms.No.83 of LET & F (Lab-11) Dept., dated 22.11.2006 as Rs.3,207/-, the compensation of Rs.3,52,690/- was awarded to Claimants. O.P.Nos.1 and 2 were made jointly and severally liable for the said amount. Hence, the present C.M.A is filed.

12. The only ground urged by the counsel for the Appellant-Insurance Company is that the driver of the vehicle did not have valid driving license and in the absence of valid driving license, no liability can be fastened on the O.P.No.2-lnsurance Company. On the contrary, the learned counsel for the Respondents contended that even if the driver of the lorry was not having valid driving license at the relevant time per se cannot be a ground to exonerate the O.P.No.2-lnsurance Company from its liability in the absence of any proof that O.P.No.1/employer had intentionally engaged the driver of the vehicle with the knowledge that the driver does not have valid driving license.

13. Having heard the respective contentions, this Court is of the opinion that merely because the driver of the lorry did not have valid driving license at the relevant time but had applied only for renewal of the license as per Ex.B.3 per se would not be a ground to exonerate the O.P.No.2-lnsurance Company of its liability, since it is obligatory on the part of the O.P.No.2- Insurance Company to establish that O.P.No.l/employer had engaged the driver with knowledge that he does not have valid driving license as held by the Hon’ble Supreme Court in Nirmala Kothari Vs United Insurance Company Ltd.\ The Paragraph 12 thereof is extracted below;

12. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the insurance company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the insurance company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the Insurance company would no longer continue to be liable."

14. In the above Judgement, the Judgments of Hon’ble Supreme Court in Pepsu RTC Vs National Insurance Co.^ and National Insurance Co. Swaran Singh^ taking a similar view were also considered. vs. 2020 (4) see 49 '2013(10) see 217 5

15. In this case, O.P.No.2-Insurance Company should have summoned O.P.No.1/employer and established this fact and having failed to do so, it is not open to the Insurance Company to contend that they are not liable to pay any compensation.

16. Even assuming for the sake of argument that the driver did not have valid driving license at that point of time, it is not a case, where the driver did not have any skill as driver, he had valid driving license for a period of three years, as stated by the R.W.2 for the period from 19.12.2003 to 18.12.2006, merely because, the driver failed to obtain license due to procedural delay, per se cannot be a ground to exonerate the O.P.No.2-Insurance Company from its liability.

17. Therefore, Court does not find appeal. Consequently, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs.

18. Since the accident had happened in the year 2009 and considering the time gap of 16 years and uncertain addresses of the Claimants, the State Legal Services Authority coordinate concerned Departments to know the whereabouts of the Claimants and ensure that the compensation is paid to the Claimants directly into their Aadhar linked bank account at the earliest.

19. The Registry is directed to mark a copy of this Order to the State Legal Services Authority for taking necessary action. As a sequel, pending applications, if any, shall stand closed. 7 2009 (3) see 297 To //TRUE eOPY// Sd/- E KAMESWARA RAO JOINT REGISTRAR SEOTION OFFieER

1. The Commissioner for Workmen's Compensation and Assistant Commissioner of Labour-I, Visakhapatnam, Visakhapatnam District, (with records if any)

2. One CC to Sri B Paramesewara Rao, Advocate [OPUC] 3. One CC to Sri G Venkata Reddy, Advocate [OPUC] 4. The Member Secretary, Andhra Pradesh State Legal Services Authority, H.No.2-273/54-A, BSR Complex, Opposite to Traffic Police Station, Near A.P. Secretariat, Malkapuram Village, Thulluru Mandal, Guntur District-522238, Amaravati, Andhra Pradesh.

5. The Section Officer, VR Section, High Court of Andhra Pradesh at Amaravathi. (to dispatch the trial court records)

6. Three CD Copies TK HIGH COURT DATED:18/02/2025 JUDGMENT CMA.No.1319 of 2011 DISMISSING THE C.M.A. g 2 5 MAR 2025 Current Section O' o»