Judgment:
The United India Insurance Company Limited has filed this appeal against the order passed by the Commissioner appointed under Workmen’s Compensation Act,1923 and Assistant of Labour, Circle-1, Visakhapatnam (for short ‘the Commissioner’) on 31.12.2003 wherein and whereunder the insurance company and the owner of the lorry bearing No. AP 9 U 2699 are directed to deposit an amount of Rs.3,00,927/- jointly and severally towards compensation.
2. For the sake of convenience, the parties hereinafter referred to as they are arrayed in W.C.No.39 of 2003 before the Assistant Commissioner of Labour.
3. Applicants 1 to 4, who are wife, son and daughters of the deceased – D.Babji, had filed the W.C stating that the deceased was working as Driver of lorry bearing No. AP 9 U 2699 owned by Opposite Party No.1. While the lorry driven by the deceased was returning from Itchapuram to Samalkota, gunny bags were loaded in it at Kothavalasa to deliver at Kakinada, and when the lorry reached Gajuwaka on 21.05.2001, the deceased stopped the lorry to have meals and thereafter, cleaner of the lorry drove the lorry and the deceased sat in the cabin of the lorry. When the lorry driven by the cleaner reached near Kothuru Narasingaraopeta at 1.00 a.m. near GTS Chemicals, another lorry was coming from Anakapalli side towards Gajuwaka with high speed, and in order to give way to that lorry, the cleaner-cum-driver took the lorry to extreme left side margin, resultantly, the lorry dashed on the backside of a stationary tanker bearing No.AEV 9639 and the deceased injured and died on the spot and the lorry was severely damaged. The driver of the stationary tanker gave report to the concerned Police and they registered Crime No.51 of 2001 and filed a charge sheet against the cleaner-cum-driver of the lorry and against the driver of stationary tanker AEV 9639. The lorry of Opposite Party No.1 was insured with Opposite Party No.2 and the policy was valid at the time of accident. The deceased was paid Rs.4,000/- towards monthly salary by Opposite Party No.1 and he was aged 38 years at the time of accident. The deceased died due to the accident occurred during the course and out of employment with Opposite Party No.1, and as such, Opposite Party No.1, being the owner of lorry and Opposite Party No.2- being the insurer of the lorry, are liable to pay compensation of Rs.3,79,120/-.
4. Opposite Party No.2 - insurance company filed counter before the Commissioner denying the relationship between the deceased and Opposite Party No.1 as employee and employer, and as such, the question of claiming wages does not arise. Further, it was stated that there are no substantial documents to prove that the deceased was aged 38 years at the time of the accident as well as the accident occurred during the course and out of employment with Opposite Party No.1. It was also stated that the applicants have to prove that the deceased- driver and the cleaner- cum- driver had possessed valid driving licence at the time of accident.
5. Based on the pleadings of both sides, the Assistant Commissioner of Labour framed the following issues:
i. Whether the deceased is a workman under the provisions of the Act and died because of the injuries received in an accident arisen during the course of employment and out of employment?
ii. Whether the deceased was aged 38 years at the time of accident?
iii. Whether the deceased was paid Rs.4,000-00 towards monthly wages at the time of accident.
iv. If so, what amount of compensation the applicants are entitled to receive?
v. Who are liable to pay the compensation?
6. To prove their case, applicant No.1- wife of the deceased was examined as AW.1 and got marked Exs.A.1 to A.8. However, no witnesses were examined and no documents were marked on behalf of the Opposite Parties.
7. The Commissioner, after taking into consideration the evidence and other material on record, allowed the W.C. and directed Opposite Party Nos. 1 and 2 to deposit jointly and severally an amount of Rs.3,00,927/- towards compensation by way of demand draft drawn in favour of the Commissioner of Workmen’s Compensation.
8. Heard the learned counsel on either side.
9. It is the case of Opposite Party No.2 - insurance company that A.5 - charge sheet does not disclose that the deceased was employed by Opposite Party No.1- owner of the lorry; that the employer, who is alleged to have issued Ex.A.6 – salary certificate, was not examined and in support of it, it relied on decision reported in Sait Tarajee Khimchand v. Velamarti Satyam alias Satteyya (AIR 1971 SC 1865). It is further its case that the applicants failed to establish and prove that the deceased was employed by Opposite Party No.1 - owner of the lorry and that he died in an accident occurred during the course and out of employment with Opposite Party No.1 and in support of it, it relied on the decisions in General Manager, Prakasham District Coop. Milk Producers Union Ltd., Kurnool Road, Ongole, Prakasham District v. Pavuralla Santhakumari and others (2004 (4) ALD 44),and Senior Divisional Manager, Life Insurance Corporation of India, Cuddapah Division, Cuddapah v. C Kamakshamma (2004 4 ALD 106).
10. The case of the applicants is that since Opposite Party No.2 - insurance company did not raise the issue of Ex.A.6- salary certificate in its counter, it cannot raise that issue at the appellate stage, and so far as the age, avocation and monthly earnings of the deceased are concerned, the Commissioner considering Exs.A.1 - FIR, Ex.A. 2 - post mortem report, Ex.A.3 - Motor Vehicle Inspector’s report, Ex.A.4 - inquest report, Ex.A.5 - charge sheet and Ex.A.7- driving licence and other material brought on record, has held that the deceased was workmen as per the provisions of Workmen Compensation Act and was working with Opposite Party No.1, and he died in an accident which occurred during the course of employment. The Commissioner further held that the deceased was aged about 38 years at the time of his death in the said accident. The grounds raised on behalf of Opposite Party No.2 - insurance company are not tenable since the Commissioner after assessing or appreciating the evidence and other material on record has passed the impugned order.
11. It is not in dispute that the deceased was driver, he died in the accident and the applicants are his legal representatives. Now, it has to be seen whether there is relationship of employee and employer between the deceased and opposite Party No.1. The evidence of AW.1- wife of the deceased is that the deceased worked as Driver of the lorry owned by Opposite Party No.1, and he died in the accident occurred during the course of employment with Opposite Party No.1 and he was aged about 38 at the time of his death in the accident. In the absence of conclusive proof, the Commissioner relied on Exs.A.1 to A.5, which go to prove that the deceased died in the accident occurred during the course of employment with Opposite Party No.1 and he was aged 38 years at the time of the accident. Since the person who issued Ex.A.6 -salary certificate was not examined by the applicants, the Commissioner has fixed the monthly wages of the deceased at Rs.3,175/-as per G.O.Ms.No.33, LET and F Department, dated 27.7.2000. The decisions relied on by Opposite Party No.2 - insurance company are not applicable to the facts of the case on hand.
12. Therefore, having regard to the facts and circumstances of the case and in view of the above discussion, this Court is of the considered opinion that the impugned order dated 31.12.2003 passed by the Commissioner does not suffer from any infirmity, error or irregularity warranting interference from this Court and as such, the appeal is liable to be dismissed.
13. In the result, the C.M.A. is dismissed confirming the impugned order. There shall be no order as to costs.