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2013 DIGILAW 3867 (MAD)

National Insurance v. K. Palaniammal

2013-11-08

C.S.KARNAN

body2013
JUDGMENT 1. The appellant / 2nd respondent has preferred the present appeal in C.M.A.No.799 of 2009, against the order passed in W.C.No.312 of 2006, on the file of the Commissioner for Workmen Compensation, Salem. 2. The short facts of the case are as follows:- The applicants, who are the wife and mother of the (deceased) Kittusamy have filed the claim in W.C.No.312 of 2006, claiming compensation of Rs.7,00,000/- from the respondents for the death of the said Kittusamy in an accident arising out of and during the course of employment of the (deceased) under the 1st respondent. It was submitted that the deceased was a driver appointed by the 1st opposite party to drive his Swaraj Mazda van bearing Registration No.TN-38-C-1062 and he was paid a sum of Rs.6,000/- per month. While so, on 12.08.2004, at about 11.00 p.m., under instructions from the 1st opposite party, the (deceased) Kittusamy loaded the coconuts in the van bearing Registration No.TN-38-C-1062 at Kovai Kutralam and then returned to Vellore on the Coimbatore to Erode NH-47 main road. At about 8.30 p.m., when the van came near Palakarai Maharaja College in Avinashi, the lorry bearing Registration No.AP-09-V-6218, coming in the opposite direction and driven in a rash and negligent manner, came on to the wrong side of the road and dashed against the van. As a result, the (deceased) Kittusamy sustained injuries and died on the spot. Hence, the applicants have filed the claim against the 1st and 2nd opposite parties, who are the owner and insurer of the van bearing Registration No.TN-38-C-1062. 3. The 1st opposite party in his counter had admitted the employment of the deceased Kittusamy as a driver for his van and that he had died in the accident, on 12.08.2004. It was submitted that 2 other loadmen, who were his employees had also sustained injuries in the said accident. It was submitted that a criminal case had been registered against the driver of the van bearing Registration No.AP-09-V-6218. It was submitted that as the (deceased) Kittusamy had a valid driving licence and as the vehicle was covered under a valid R.C. and as the vehicle was insured with the 2nd opposite party at the time of accident, only the 2nd opposite party is liable to pay compensation. 4. It was submitted that as the (deceased) Kittusamy had a valid driving licence and as the vehicle was covered under a valid R.C. and as the vehicle was insured with the 2nd opposite party at the time of accident, only the 2nd opposite party is liable to pay compensation. 4. The 2nd opposite party in his counter had denied the averments in the claim regarding age, occupation and income of the deceased. It was submitted that as the applicants had admitted in their claim that the accident was caused by the rash and negligent driving of the driver of the van bearing Registration No.AP-09-V-6218, the claim was bad for non-joinder of the owner and insurer of the said van. It was further submitted that as five persons had travelled in the 1st opposite party's van, the policy conditions of insurance had been violated and as such the 2nd opposite party is not liable to pay compensation. It was submitted that the claim was excessive. 5. The Deputy Commissioner of Labour framed four issues for consideration in the case namely: (1) Did the (deceased) Kittusamy die in the accident arising out of and while doing his duty as a driver under the 1st opposite party? (2) If so, what is the age and income of deceased? (3) What is the quantum of compensation which the applicants are entitled to get? and (4) Who is liable to pay compensation to the applicants? 6. On the applicants' side, the 1st applicant was examined as PW1 and 5 documents were marked as Exhibits P1 to P5 namely: Ex.P1-F.I.R.; Ex.P2-Postmortem Certificate; Ex.P3-Copy of driving licence of deceased Kittusamy; Ex.P4-Copy of Policy; and Ex.P5-Legal heir certificate. On the 2nd opposite party's side, one witness was examined and one document namely Copy of Insurance Policy of the Vehicle bearing Registration No.TN-38-C-1062 was marked as Ex.R1. 7. PW1 had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of her claim, she had marked Exhibits P1 to P5. 8. 7. PW1 had adduced evidence which is corroborative of the statements made in the claim regarding manner of accident and in support of her claim, she had marked Exhibits P1 to P5. 8. The Tribunal, on observing that the 1st opposite party in his counter has admitted the employment of the (deceased) Kittusamy as his driver and on scrutiny of Ex.P1 and Ex.P2 held that the (deceased) Kittusamy was employed as a driver under the 1st opposite party and that he had died in an accident arising out of and while doing his work in the course of employment under the 1st opposite party on 12.08.2004. On scrutiny of Ex.P3, driving licence, the Deputy Commissioner observed that the age of the deceased was 38 years at the time of accident. Though the applicants had stated in their claim that the (deceased) was earning Rs.6,000/- per month including of daily batta of Rs.50/-, no documentary evidence had been marked to prove the same. The Deputy Commissioner further observed that the 1st opposite party had also not produced any salary certificate to prove the income of the deceased. Hence, the Deputy Commissioner of Labour held that the notional income of the deceased could only be taken as Rs.3,843/- as per the minimum Wages Act, 1948 and as per the G.O.No.2D No.47 dated 01.08.2003 of Deputy Commissioner of Labour and Employment (J-1). The Deputy Commissioner on adopting a multiplier of 189.56, awarded a sum of Rs.3,64,240/- (3,843X50/100X189.56) as compensation to the applicants under the head of loss of earning; Rs.2,500/- was awarded for funeral expenses. 9. RW1, the Assistant Manager of the 2nd opposite party's firm had adduced evidence that in the same accident, two other claim petitions were received by them in W.C.No.311 of 2006 and W.C.No.313 of 2006, wherein the petitioners in those claims had also claimed compensation for injuries sustained by them. He deposed that as per the R.C. of the 1st opposite party's van, only two persons other than the driver of the van were permitted to sit in the cabin of the van and that no persons were allowed to travel in the rear of the van which is only meant for carrying of goods. He deposed that as per the R.C. of the 1st opposite party's van, only two persons other than the driver of the van were permitted to sit in the cabin of the van and that no persons were allowed to travel in the rear of the van which is only meant for carrying of goods. He deposed that premium had been paid by the 1st opposite party to ensure coverage of 3 persons including the driver and that as 10 persons had travelled in the van, at the time of accident, as is seen on perusal of F.I.R., the policy conditions of Insurance had been violated and as such the 2nd opposite party is not liable to pay any compensation and in support of his evidence, he had marked Ex.R1. 10. The Deputy Commissioner, on scrutiny of Ex.R1, observed that the 1st opposite party's van was a goods vehicle and that the driver and cleaner of the van were given coverage of insurance. The Deputy Commissioner further observed that premium of Rs.50/- and Rs.75/- had been paid to the Insurance Company to extend coverage of Insurance for two other personal travelling in the van. Hence, the Tribunal on scrutiny of oral and documentary evidence, directed the 2nd opposite party to pay the said compensation, to the applicants within a period of 30 days from the date of its order, failing which it was directed to pay the said sum together with interest at the rate of 12% per annum. 11. Aggrieved by the award passed by the Commissioner for Workmen Compensation, the 2nd opposite party / The National Insurance Company Limited, Erode has preferred the present appeal. The learned counsel for the appellant has contended in his appeal that the Commissioner after considering the evidence of RW1, who had stated that as per the F.I.R., around 10 persons had travelled in the vehicle against the permitted capacity of 3 in all i.e. driver and two workmen for which only the premium was paid, ought not to have held the appellant liable to pay compensation to the claimant. It was contended that the Commissioner erroneously interpreted that a total of 3 persons were covered by the policy without considering the possibility that there is no bar in filing other claim petitions in future. It was contended that the Commissioner erroneously interpreted that a total of 3 persons were covered by the policy without considering the possibility that there is no bar in filing other claim petitions in future. It was contended that the Commissioner erred in finding that the death of the deceased was under the course of employment in the absence of acceptable oral evidence and also erred in fixing the income of deceased at Rs.3,843/- in absence of proof of employment. Hence, it was prayed to set aside the award passed by the Commissioner for Workmen's Compensation. 12. The very competent counsel for the applicants submits that in the said accident, 3 separate compensation petitions had been filed by their respective parties as per the policy condition, coverage is extended for 3 persons and as such the Insurance Company is liable to pay compensation to the applicants. In order to prove the employment, the 1st opposite party had admitted employment of deceased and his driving licence had also been produced. As per F.I.R., it is crystal clear that the accident had occurred in the course of employment of the deceased, who had driven the 1st opposite party's van loaded with goods. Therefore, employer-employee relationship and the occurrence of accident during the course of employment have been proved. The learned Deputy Commissioner of Labour had framed necessary issues and decided the case in an appropriate manner. 13. On verifying the facts of the case and on hearing the arguments advanced by the learned counsel on either side and on scrutinising the impugned award of the Deputy Commissioner of Labour, this Court does not find any lapse in the conclusions arrived at regarding employer-employee relationship and the occurrence of accident during the course of employment of the deceased. Besides this, the compensation had been decided on the basis of age and income of the deceased. Therefore, this Court confirms the award passed by the Deputy Commissioner of Labour. It is seen from the records that the entire compensation amount had been deposited before the Deputy Commissioner of Labour. 14. Besides this, the compensation had been decided on the basis of age and income of the deceased. Therefore, this Court confirms the award passed by the Deputy Commissioner of Labour. It is seen from the records that the entire compensation amount had been deposited before the Deputy Commissioner of Labour. 14. Now, it is open to the applicants to withdraw their apportioned share amount, with accrued interest thereon, as per the ratio fixed by the Deputy Commissioner of Labour, lying in the credit of W.C.No.312 of 2006, on the file of the Deputy Commissioner of Labour, Salem, after filing a memo, along with a copy of this order and after identification of the applicants by their counsel, subject to deduction of withdrawals made, if any. 15. In the result, the above appeal is dismissed. Consequently, the award passed in W.C.No.312 of 2006, on the file of the Deputy Commissioner of Labour, Salem, dated 30.04.2008, is confirmed. No costs. Consequently, connected miscellaneous petition is closed.