New India Assurance Company Limited, Mahaboobnagar Vs. Kistamma and Others - Court Judgment

Excerpt:
motor vehicles - insurance claim - section 95 of motor vehicles act, 1939 - deceased was a coolie who died while working for his employer who was owner of insured vehicle - tribunal came to conclusion that death was due to rash and negligent driving and insurance company was liable to pay - appeal to high court against decision of tribunal by appellants - high court upheld tribunal decision on same grounds. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 3. to appreciate the contentions raised by the counsel for the appellant it is better to have a glance at the matrix of the facts of the case.1. this appeal was filed by the new india assurance company limited by its branch manager, mahaboobnagar against the judgment and decree passed in op no. 67 of 1990 on the file of the chairman, motor accidents claims tribunal (for short 'tribunal') mahaboobnagar dated 9-9-1992 awarding a compensation of rs.51,000/- together with interest at the rate of 12% per annum for the death of venkataiah who was aged about 20 years at the time of accident.2. the learned counsel for the appellant contended that the award passed by the tribunal below is illegal on the ground that the deceased was not an employee of the first respondent, who was the owner of the tractor, which involved in the alleged accident as deposed by him as rw1, and that the deceased was travelling as an unauthorised passenger on the tractor, which is not meant for carrying any passengers. the learned counsel for the appellant further submitted that the award passed by the tribunal below is illegal and contrary to the law laid down by the supreme courtjudgment in employees state insurance corporation v, francis de costa, 1996 acj 1281. the learned counsel for the appellant further submitted that the deceased was travelling as a passenger in a goods vehicle and therefore the petitioners in the op are not entitled for any compensation as held by the tribunal below. therefore, the appellant sought for the interference of this court and prayed to set aside the award passed by the tribunal below.3. to appreciate the contentions raised by the counsel for the appellant it is better to have a glance at the matrix of the facts of the case. the deceased was aged about 23 years at the time of the accident. on 1-3-1989 when the deceased was working as a cooli on tractor bearing no.aa, 3190 of the first respondent, which was insured with the respondent no.2, the deceased along with other labourers unloaded the bricks at kakarlapad village and when they were returning from there the said tractor crossed boyapally village and at that time the driver of the tractor drove it in high speed and in a rash and negligent manner and lost control over the same and therefore the tractor fell on the road side. as a result of which the deceased and other labourers sustained bleeding injuries and the deceased died on the spot due to injuries. the deceased was earning rs.30/- per day and rs.20/- per day as batta. therefore, the above claim petition was filed by the dependants of the deceased wife, two minor children and parents for grant of compensation of an amount of rs.1,00,000/- for untimely death of their bread winner.4. the tribunal has examined pw1 and pw2 and have pursued documents exs.a1 to a6 on behalf of the petitioners and ex.xi was marked on behalf of the insurance company. after analysing and appreciating both oral and documentary evidence, the tribunal held that the accidentwas occurred due to rash and negligent driving of the driver of the tractor and they are not gratuitous passengers and therefore the respondents therein are liable to pay compensation.5. for fixation of quantum of compensation payable to the petitioners, the tribunal below has relied on the judgment in new india assurance co., ltd. v. anasurya, 1990 (2) alt 667 and the evidence of pwl and arrived at a conclusion that the deceased would be contributing rs.3,000/- per year for the maintenance of the family. taking into consideration of the age of the deceased as 30 years a multiplier of 10 is applied and awarded an amount of rs.30,000/- for the loss of dependancy and rs.15,000/- towards loss of non pecuniary damages and an amount of rs.6,000/- was awarded towards loss of consortium to the first petitioner therein as she lost the company of her husband at an younger age and in all a sum of rs.51,000/- was awarded. the contention of the learned counsel for the appellant is that the deceased was travelling as unauthorised passenger in the tractor and he mainly relied on the evidence of rw1, which was recorded in the judgment, which shows that as a owner he has not engaged the deceased as a cooli. but i have gone through the evidence of pw2, who is the cooli working along with the deceased on the tractor, and the rwl, who is the owner of the vehicle. rwl, owner of the vehicle, deposed in unequivocal terms that that, ' i am owner of the tractor bearing no.aam 3190 and trailer aam 3191. 1 used the tractor for transporting bricks. the deceased venkataiah was working as labourer in my tractor. on 1-3-1989 he died in the tractor accident while working as labourer. i am the first respondent herein. i was paying rs.30/- per day plus rs.10/- as batta to the deceased. the payment was weekly. the deceased was working in my tractor in the last two or three months prior to his death'. in cross-examination he deposedthat; 'it is not true to suggest that the deceased was not working as labourer in my tractor and that i was not paying rs.30/- per day towards his wages, and that i am deposing falsely to help the petitioner'. from the above evidence of rw1, owner of the vehicle, it is proved beyond doubt that the deceased was engaged as a labourer in the tractor and that the deceased was travelling in the tractor for loading and unloading purpose. therefore, it can be held that the accident occurred during the course of employment. accordingly, the finding of the tribunal below is confirmed.6. with regard to the supreme court judgment relied on by the learned counsel for the appellant, the facts of the case are that the accident was occurred when the employee, francis de costa, was going to his place of work on a cycle and the accident was occurred 1 kilometer away from his place of work at 4-15 p.m., when he has to report duty at 4-30 p.m. therefore, the issue before the apex court for consideration is whether the accident occurred to the employee when he was going to the place of work or the accident occurred in the course of employment. the supreme court held on consideration of the facts and circumstances of the case that the accident was occurred in the course of journey and did not occur during the course of employment. but in para 12 of th judgment ihe supreme court discussed about scope of section 51-c of employees state insurance (amendment) act, 1966 wherein it is. stated that, 'the deeming provision of section 51-c, which came into force by way of an amendment effected by the employees' state insurance (amendment) act, 1966 (44 of 1966), enlarged the scope of the phrase 'in the course of employment' to include travelling as a passenger by the employer's vehicle to or from the place ofwork. the legal fiction contained in section 51-c, however, does not come into play in this case because the employee wasnot travelling as a passenger in any vehicle owned or operated by or on behalf of the employer or by some other person in pursuance of an arrangement made by the employer'. applying the above observation of the supreme court to the facts and circumstances of instant case and on consideration of the evidence of rw 1 that the deceased was engaged by him as a cooli on the tractor for loading and unloading purpose for the last two or three months prior to death, it can be held that the deceased has travelled in a vehicle as passenger provided by the employer to or from the place of work. therefore the accident was occurred during the course of employment which comes within the scope and ambit of section 51-c of employees' state insurance (amendment) act, 1966. hence the respondents are liable to pay compensation as insured and insurer of the tractor which involved in the accident. therefore, the contention of the learned counsel for the appellant is negatived and the decision relied on by the appellant counsel esi corporation v. francis de costa (supra) is not applicable to the facts and circumstances of the present case.7. in the result, the appeal fails. the appeal is dismissed with costs.