The Branch Manager, Oriental Insurance Company Limited v. Md. Afzal & Anr.

THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL MISCELLANEOUS APPEAL No.2992 of 2000 ORDER: This is an appeal is by the insurance company against the award of compensation granted by the Commissioner for Workmen’s Compensation, Nizamabad. The claim based on injuries sustained by the claimant in the accident, which occurred on 04.06.1996, is the subject matter of the claim before the Commissioner. The case of the claimant before the Commissioner was that he was working as a labourer under the second respondent, who is the owner-cum-driver of the tempo bearing No.AAJ 6424. On the day of the accident, cleaner, driver and the claimant were travelling in the said vehicle, when on account of the rash and negligent driving of the said vehicle by the driver, the vehicle turned turtle resulting in serious injuries to the claimant. On account of the said injuries, the claimant had taken medical treatment at various hospitals including Osmania General Hospital and Yashoda Hospital, Hyderabad.

Therefore, the claimant sought compensation of Rs.2,00,000/-. The said claim was contested only by the appellant-insurance company, which denied all the allegations in the claim. The learned Commissioner framed issues for consideration, namely, “1. Whether the accident arising out of and the course of employment? and; 2. If so, to what extent relief the petitioner is entitled for?” The Tribunal answered both the issues in favour of the claimant and awarded compensation of Rs.1,56,175/- and held that owner and insurer both are jointly and severally liable. The said order is in question in this appeal. I have heard the learned counsel for the appellant-insurance company and the learned counsel for the first respondent-claimant. It is contended by the learned counsel for the appellant that there is no evidence regarding the relationship of employer and employee and in that view of the matter, the liability imposed on the insurance company is unsustainable.

It is further contended that there is no documentary evidence produced by the claimant to establish that he was working as a labourer under the second respondent. The amount claimed by the claimant for the alleged medical treatment is also denied as it was not established by the claimant. It is stated that the medical bills and prescriptions, discharge ticket Government Hospital, Nizamabad, and the Medical ticket of Osmania General Hospital, Hyderabad, marked on behalf of the claimant do not establish his entitlement for the compensation made in the claim. Per contra, the learned counsel for the first respondent-claimant submits that the evidence on record fully justifies the grant of compensation as granted by the Commissioner. Ex.A-38 is the injury certificate showing the external injury suffered by the claimant, which caused the hemorrhage on both the temporal lobs of the brain, on such nature that the claimant had suffered 75% partial disability and is not in a position to do any work.

The prescriptions including the X-rays were marked as Exs.A-24 to A-35 and Ex.A-37 apart from the other documents already marked. The learned counsel also relied upon the evidence of owner - P.W.3 under whom the claimant was working and who has confirmed that the claimant was working as a labourer and was getting salary of Rs.2,000/- per month. Therefore, the learned counsel justified the award. The evidence of P.W.3, who is owner-cum-driver running the transport business, specifically and categorically stated in his evidence that he knew the claimant and that the claimant was working under him as labourer with salary at Rs.2,000/- per month. He also confirmed that the claimant met with an accident and sustained disability. The suggestion given to P.W.3, however, on behalf of insurance company suggests that the salary of the claimant is Rs.900/- per month and not Rs.2,000/- per month. The other suggestion given to him is that the labourer did not sustain any injuries and fractures during the course of employment.

The nature of cross-examination as above fairly establishes that the evidence of the said witness was not rebutted or controverted, and on the contrary, only the quantum of salary was disputed. The relationship of employer and employee, which was established by the aforesaid evidence, was not displaced as there was neither effective cross-examination of the witness on behalf of the claimant nor there is any evidence against the same. The finding of the learned Commissioner that the employer and the employee relationship has been proved beyond reasonable doubt cannot be, therefore, said to be perverse and accordingly issue No.1 was rightly decided in favour of the claimant. Insofar as the issue No.2 is concerned, there is no much controversy regarding the same as the learned Commissioner has rightly followed the enactments under the Workmen’s Compensation Act, 1923, and has awarded the compensation in terms of the fixed percentage by relevant factor. The order under appeal, therefore, warrants no interference. The Civil Miscellaneous Appeal is accordingly dismissed. No order as to costs. __________________________ 19th November, 2009 GHN

(VILAS V. AFZULPURKAR, J)