BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
22. 08/2013 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH C.M.A.(MD)No.62 of 2007 and M.P.(MD)No.1 of 2007 1.A.R.Saradha Devi 2.The United India Insurance Co Ltd., 254, GoodsSheds Street, Madurai - 625 001 .. Appellants / Respondents 1&2 in W.C Vs. 1.R.Jeyarani 2.Minor.R.Arun Prasad 3.Minor R.Priya Dharshini .. Respondents / Petitioners in W.C. (Minors represented by 1st Respondent herein) PRAYER This Civil Miscellaneous Appeal is filed under Section 30 of Workmens Compensation Act, against the Award dated 12.02.2001 made in W.C.No.301/1997 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner for Labour) at Madurai. !For Appellants ... Mr.A.Joseph Jawahar ^For Respondents ... No Appearance :JUDGMENT
This Civil Miscellaneous Appeal has been filed by the appellants, who are respondents 1 and 2 in W.C. proceedings, against the Award dated 12.02.2001 made in W.C.No.301 of 1997 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner for Labour) at Madurai.
2. The respondents 1 to 3 / claimants, who are wife and children of the deceased Rajendran, filed a claim petition for compensation of Rs.3,00,000/- and in the claim petition it is stated that the deceased Rajendran was working as driver under the first appellant / first respondent on daily wages basis of Rs.120/- per day. On 18.10.1996 at about 8.00 p.m., the deceased Rajendran was driving the vehicle viz., Tata Sumo, bearing Reg.No.TN-58-6273, belonging to the first appellant / first respondent in the above said proceeding, from Madurai to Madras for first appellant's business and drove the vehicle in normal speed from South to North in Trichy -Melur main Road near TTC Metal at Pallapatti. At that time, another lorry came in a rash and negligent manner from opposite direction and to avoid an accident, the deceased turned the vehicle western side. As a result of which, the vehicle hit against a Tamarind Tree situated on the western side of the road and the accident was occurred and the above said driver Rajendran sustained injuries and taken to the Meenakshi Mission Hospital, Madurai and inspite of it, he died due to the injuries on 24.10.1996. Criminal case also registered under Sections 279 & 337 of IPC., in Crime No.294/1996. The accident was occurred only during the course of employment under the first appellant / first respondent. It is further stated in the petition that the age of the deceased was 38 years and he was earning Rs.120/- per day from the first appellant / first respondent and therefore, the claimants are claimed compensation of Rs.3,00,000/- from the owner and Insurance Company.
3. The first appellant / first respondent has filed counter in which he admitted that the above said vehicle viz., TATA Sumo, bearing Reg.No.TN-58-6273 was driven by the deceased was belonging to the first appellant / first respondent but the deceased was not working under him but the deceased was working as driver in ESI Corporation. The first appellant / first respondent has given the above vehicle to the deceased only as a well wisher and he was using the vehicle as his own use and therefore, the claimants are not entitled to claim any compensation.
4. The 2nd appellant / 2nd respondent Insurance Company in the above said proceeding filed counter in which denied the manner of accident alleged in the claim petition and also denied the contention that the deceased was working under the first appellant / first respondent. Further stated that the claimants should prove the manner of the accident, valid driving licence of the deceased, age, avocation and income of the deceased and also stated that the claim of compensation of Rs.3,00,000/- is highly excessive.
5. On the side of the claimants filed reply statement in which denied the contention of the owner and insurer of the vehicle in the above said proceeding and stated that the deceased was not a regular employe in E.S.I.Corporation and also stated that the denial of relationship of employer and employee is not correct. The deceased rendered service of driver of the vehicle belonging to the first appellant / first respondent for wages and further, the deceased employed in the department per se is not a bar to claim compensation.
6. The Deputy Commissioner has considered the oral and documentary evidence adduced on either side and finally held that the 2nd appellant / 2nd respondent Insurance Company is directed to deposit a sum of Rs.1,42,412/- with interest at the rate of 12% per annum and passed an Award.
7. Aggrieved over the above said Award, the appellants i.e., owner and Insurance Company filed this Civil Miscellaneous Appeal.
8. This Court has framed the following substantial question of law for consideration:- ".1. Whether the Commissioner had erred in not appreciating that the deceased was a Government Servant and as such prima facie there cannot be any employer / employee relationship between him and 1st opposite party herein?. 2.Whether the Commissioner had failed to appreciate the provisions of Rule 8(a) & 8(aa) of Tamil Nadu Government Servants Conduct Rules of 1973 and whether the Commissioner had cast the burden on the appellants erroneously to establish that the deceased was not employed by the 1st opposite party?. 3.Whether the Commissioner had failed to appreciate that the petition is not maintainable, since the E.S.I. Department had compensated the claimant and hence Section 53 of E.S.I.Act will come into operation?.".
9. In the instant case, at the time of accident the deceased Rajendran was driving the first appellant / first respondent vehicle viz., TATA Sumo, bearing Reg.No.TN-58-6273 is not in dispute and also not disputed that the above said Rajendran was died due to the injuries sustained in the above said accident. Therefore, the first appellant was owner of the vehicle and the 2nd appellant was the insurer of the vehicle and the deceased was driver at the time of accident are not in dispute. The main contention of the appellants is that the deceased was working in Employees' State Insurance Corporation and therefore, he is not employed by the first appellant / first respondent / owner of the vehicle and hence, the claimants are not entitled to any compensation from the appellants.
10. The case of the appellants is that on the date of accident, as well- wisher of the first appellant / first respondent, he has given the vehicle to the deceased and the accident was not occurred during the course of employment and hence, the appellants are not entitled to give compensation. The Deputy Commissioner of Labour has discussed about the oral and documentary evidence adduced in this case and finally held that the deceased was driver of the first respondent at the time of accident and the accident was occurred in the course of employment and therefore, as a owner of the vehicle, the first appellant / first respondent is liable to pay compensation. Since the vehicle was insured with the 2nd appellant / 2nd respondent Insurance Company, the 2nd appellant is liable to pay compensation on behalf of owner of the vehilce.
11. A perusal of entire oral and documentary evidence adduced on either side reveal that at the time of accident the first appellant / first respondent was owner of the vehicle and while the deceased driving the vehicle, the accident was occurred. But the contention of the appellants that the first appellant / first respondent has given the vehicle to the deceased only as a well-wisher, cannot be accepted. Only for the reason that he was working in ESIC, the contention of the appellant that the deceased not working under the first appellant / first respondent also unsustainable. A perusal of oral evidence adduced on the side of the claimants clearly proved that the deceased was working under the first appellant / first respondent on daily wages of Rs.120/ per day. Further, on the side of the appellants not produce any reliable oral and documentary evidence to prove that the claimant has compensated by E.S.I Department. Therefore, the contention raised by the appellant is not true and also unsustainable in law. In the above said circumstances, the Award passed by the Deputy Commissioner is valid in law. No interference needs in the above said findings and answered all the three substantial questions of law accordingly.
12. In the result, the Civil Miscellaneous Appeal is dismissed and the Award, dated 12.02.2001, made in W.C.No.301/1997 on the file of the Commissioner for Workmen's Compensation (Deputy Commissioner for Labour) at Madurai, is confirmed. No costs. Consequently, connected miscellaneous petition is closed. MPK To The Commissioner for Workmen's Compensation (Deputy Commissioner for Labour) Madurai.