High Court · 2012

Judgment

The appellant/2nd respondent Insurance Company before the Commissioner preferred this appeal aggrieved by the order dated

13.08.2007 passed by the Commissioner for Workmen(cid:146)s Compensation and Assistant Commissioner of Labour, Nalgonda in W.C.No.82 of 2004(F) holding that Dharavath Jogya (hereinafter referred to as (cid:145)deceased(cid:146)) was working under the 3rd respondent herein as a labour on his tractor and trailor bearing No.AP 24U 7023 and 7024, which met with an accident on 17.02.2003 at about

7.30 p.m. and died in the course of and out of the employment as labour and therefore, is employment and employee relationship between the deceased and the 3rd respondent herein.

2. Further taking into consideration the age of the deceased as mentioned in Ex.A.3 as 36 years, and applying minimum wage for a labour as on the date of accident at Rs.2057/-, and applying the age factor as 194.64 and for consequential compensation 50% of the wages, arrived at Rs.2,00,187/- and made the appellant and the 3rd respondent herein jointly and severally liable to pay the said compensation and directed them to deposit the said amount by way of demand draft drawn in favour of Commissioner for Workmen(cid:146)s Compensation and Assistant Commissioner of Labour, Nalgonda within 30 days from the date of receipt of the order, in case of failure to deposit the same within the stipulated period of 30 days, liable to pay interest at the rate of 9% per annum from the date of application till the date of realisation. 2

3. The contention of the appellant is that the Commissioner for Workmen(cid:146)s Compensation and Assistant Commissioner of Labour, Nalgonda failed to see that the deceased was travelling as unauthorised passenger and thereby committed error in holding that the deceased was under the employment of 3rd respondent herein and fastened liability on the appellant.

4. The brief claim of the applicants is that the deceased was working under the employment of 3rd respondent herein as labour on his tractor and trailor bearing No.AP 24U 7023 and 7024 and was earning Rs.3,000/- per month. While so, on 17.02.2003 the deceased along with other labourers was returning to their Tanda from Suryapet after completion of their work on the same tractor and trailor and when they reached Jagan Nayak Thanda, the deceased requested the driver of the tractor to stop the tractor as he was thirsty. The driver of the tractor slowed down the tractor and when the deceased tried to get down from the tractor, immediately, the driver moved the tractor in a rash and negligent manner, as a result of which, the deceased fell from the tractor and the tractor ran over the deceased. He succumbed to injuries while shifting to hospital. The deceased was aged 36 years old at the time of death.

The first applicant is the wife and the second applicant is the son of the deceased-workman and they are dependants.

5. The 3rd respondent and the appellant herein are the insured and insurer, respectively, of the tractor and trailor bearing No.AP 24U 7023 and 7024 and are jointly and severally liable to pay the compensation. 3

6. The appellant herein filed a counter denying the averments of the petition contending that there is no negligence on the part of the driver of the tractor and trailor. Further denied the age of the deceased as 36 years, his presence on the tractor at the time of the accident and his earnings at Rs.3,000/- per month. It is contended that the driver was not having valid licence at the time of accident. The amount claimed is excessive and the insurance company is not liable to pay the compensation.

7. The Commissioner having considered the plea of both the parties, settled the following issues for trial: (cid:147)1. Whether the deceased is a workman within the meaning of the Act and whether he died during the course of employment under Opp.Party No.1?

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

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

4. Whether the applicants are entitled to compensation? If so, to what extent?(cid:148)

8. In support of the claim, on behalf of applicants/respondents1 & 2 herein, applicant No.1 was examined as P.W.1 and Exs.A.1 to A.5 were marked. On behalf of appellant herein, Ex.B.1/copy of police was filed but no oral evidence was adduced.

9. Now, the point that arises for determination in this appeal is:- (cid:147)Whether the order of the Commissioner suffers with any infirmity warranting interference by this Court?(cid:148)

10. The contention of the appellant herein is that the deceased was travelling in the tractor as an unauthorised passenger and the 4 Commissioner erred in holding that the deceased was employed under the 3rd respondent herein and thereby fastened the liability of interest against the appellant herein.

11. The applicant No.1 was examined as P.W.1 and her clinching evidence is that the deceased, who is her husband, was employed by the 3rd respondent herein as a labour on his tractor and trailor bearing No.AP 24U 7023 and 7024. On the date of accident i.e. on 17-02-2003 at about 7.30 p.m. her husband was travelling as a labour on the tractor and trailor of the 3rd respondent herein from Suryapet to their Thanda. During the cross-examination, she denied the suggestion that her deceased-husband was not working as a labour on the offending tractor and trailor under the 3rd respondent and that he was not on duty on the date of accident.

12. Besides the evidence of P.W.1, she marked Exs.A.1 to A.5 i.e. copy of F.I.R.; inquest report; post-mortem examination report; Motor Vehicle Inspector(cid:146)s report; and charge sheet respectively. In Ex.A.1/FIR the complainant/D.Deeru specifically alleged that on 17-02-2003 in the morning, himself, deceased and others went on the tractor and trailor bearing No.AP 24U 7023 and 7024 as coolies and transported stones to Suryapet and after completion of work while returning to their thanda and while the tractor reached Jagannaik Thanda at about 7.30 p.m., the driver of the tractor stopped the vehicle for water and at that time the deceased tried to get down from the tractor but all of a sudden, the driver moved the vehicle and that the deceased fell down and the vehicle ran over the deceased and as a result of which, he received severe injuries. The investigating officer filed Ex.A.5/charge sheet after thorough 5 investigation reiterating the above facts stated in Ex.A.1/FIR. The inquestdars under Ex.A.2/inquest report also mentioned the same facts as stated in Ex.A.1 and A.5.

13. The Motor Vehicle Inspector, who examined the offending vehicle, issued Ex.A.4/report opining that the accident was not due to any mechanical defects of the vehicle. The doctor who conducted post-mortem examination over the deceased body, issued Ex.A.3/report opining that the death of the deceased was due to shock and haemorrhage due to multiple injuries.

14. The Commissioner after elaborately considering the above documentary evidence and the evidence of P.W.1, came to the conclusion that the deceased was under the employment of 3rd respondent herein and that on the date of accident, he attended as a coolie on the tractor and trailor for transporting the stones and that the accident was due to rash and negligent driving of the tractor by its driver and that there is employer and employee relationship between the 3rd respondent and the deceased and that the death was occurred during the course of employment while discharging his duties as a labour.

15. The counsel for the appellant relied on a decision reported in Ravunammal and another v. Sambandham and others1 wherein, the High Court of Madras considering the facts that there is no seat on the tractor for the cleaner and since the deceased was sitting on the mudguard of tractor with knowledge of the driver, held that the driver is liable and in turn, the owner of the tractor is to be made liable for the mistake committed by his driver. But however, the 1 (2008 ACJ 974) 6 insurance company was directed to pay the compensation amount to the claimants and then recover the same from the owner.

16. In the instant case, having considered the oral and documentary evidence, the Commissioner came to the conclusion that the accident occurred due to the negligence on the part of the driver of the tractor and that the deceased was attending as a labour on the tractor employed by the 3rd respondent herein. In the decision referred to above, even as per the averments of P.W.2, an eyewitness to the accident, who also happened to be a co- traveller, there was no separate seat as such for the cleaner, but the deceased/cleaner was sitting on the mudguard only with the knowledge of the driver of the tractor and for the mistake of driver allowing the cleaner to travel on the mudguard, the driver was held liable and in turn, the owner of the tractor was made liable for the mistake committed by his driver.

17. The Apex Court in Oriental Insurance Co. Ltd. V. Brij Mohan2 held that the insurer was not liable to pay compensation in respect of passenger who was travelling on the tractor, however, directed that in a situation of this nature, in exercise of powers conferred by Article 142 read with Article 136 of the Constitution of India, the Apex Court can direct the insurance company to pay compensation for doing complete justice to the parties. Relying on the said decision, the Madras High Court in Iffco-Tokio General Insurance Co. Ltd. V. Shankarlal and others3 allowed the appeal setting aside the direction of the tribunal in holding the appellant- insurance company liable for payment of compensation. 2 (2007 ACJ 1909 (SC)) 3 2009 ACJ 2618 7

18. In the present case, the facts are completely different. The specific evidence of P.W.1 is supported by documentary evidence Exs.A.1 to A.5, which established that the deceased was under the employment of 3rd respondent herein and that on the date of accident, he attended as a coolie on the tractor and trailor for transporting the stones and that the accident was due to rash and negligent driving of the vehicle by the driver of the tractor and trailor bearing No.AP 24U 7023 and 7024 and that there is employer and employee relationship between the 3rd respondent and the deceased and that the death was occurred during the course of employment while discharging his duties as a labour. Therefore, in the present case, there is no negligence on the part of the deceased and that his presence on the tractor is during the course of employment under the 3rd respondent herein.

19. With regard to the income of the deceased, though P.W.1 stated that the deceased was working as a labour on the tractor and was earning Rs.3,000/- per month, did not produce any evidence in proof of the same. In such circumstances, the Commissioner applied the minimum wages fixed by the Government of Andhra Pradesh for the workers employed in Public Motor Transport Undertakings and accordingly fixed the wage of the deceased at Rs.2,057/- per month the purpose of settlement of compensation.

20. Since there is no iota of evidence in proof of age of the deceased, the Commissioner rightly took the age of deceased as 36 years as mentioned in Ex.A.3/post-mortem examination report and applied the age factor at 194.64 and by adopting 50% of the wages 8 as compensation, arrived at Rs.2,00,187/- as compensation. By virtue of Ex.B.1/policy which was in force as on the date of accident, made the appellant and the 3rd respondent herein jointly and severally liable and directed them to deposit the said compensation amount by way of Demand Draft drawn in favour of Commissioner for Workmen(cid:146)s Compensation and Assistant Commissioner of Labour, Nalgonda within 30 days from the date of receipt of the order. In case of their failure to deposit the compensation amount within the stipulated period of 30 days, the Commissioner allowed interest at 9% per annum from the date of application till the date of realization, which is strictly in accordance with the provisions under Section 4A(3)(a) of the Employee(cid:146)s Compensation Act, 1923. Considering facts and circumstances discussed above, I am of the considered view that the findings of the Commissioner in awarding the compensation and interest are strictly in accordance with law and do not suffer with any infirmities warranting interference by this Court.

21. In the result, the C.M.A. is dismissed with costs while confirming the order of the Commissioner for Workmen(cid:146)s Compensation and Assistant Commissioner of Labour, Nalgonda in W.C.No.82 of 2004(F) dated 13.8.2007, directing Opposite Parties 1 and 2 who are owner and Insurance Company/appellant, to pay an amount of Rs.2,00,187/- as compensation jointly and severally by way of Demand Draft in favour of the Commissioner for Workmen(cid:146)s Compensation and Assistant Commissioner of Labour, Nalgonda, drawn on any schedule bank within thirty days from the date of receipt of a copy of this order. 9

22. Advocate fee is fixed at Rs.2,000/-. Consequently, Miscellaneous Petitions pending, if any, shall stand closed. 25th April 2018 Tsr _____________________ JUSTICE N.BALAYOGI