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2023 DIGILAW 1217 (AP)

Bharathi Axa Gen. Ins. Co. Ltd v. Shaik Moulali

2023-08-18

K.MANMADHA RAO

body2023
JUDGMENT 1. Bothe the Civil ]Miscellaneous Appeals were filed by the appellant/2nd Opposite Party aggrieved by the order in W.C. No.10 of 2021 dtd. 30/12/2022 on the file of Assistant Commissioner of Labour, Guntur (for short "the Tribunal") and the order in W.C. No.3 of 2020, dtd. 31/1/2023 on the file of the Deputy commissioner of Labour, Guntur. 2. Since the issue involved in the two appeals is one and the same, they are being disposed of by this common judgment. 3. For the sake of convenience, the parties will hereinafter be referred to as arrayed before the Tribunal. 4. The averments in the claim petition filed under Sec. 166 of the Motor Vehicles Act in W.C.No.3 of 2020, are as under:- The applicant by name Shaik Moulali was hale and healthy and aged about 22 years, at the time of accident he was the sole bread winner of his entire family. He is permanent resident of Old Mangalagiri, Mangalagiri Mandal, Guntur District that he sustained grievous injuries during the course of employment in the motor accident that occurred on 30/6/2019 at NH.16 Opp. Kalvari Temple, Namburu Village, Pedakakani Mandal, Guntur District. The Opposite Party No.1 is the Proprietor of "K" Mart Super Market, Mangalagiri and the applicant used to attend his duties as Stock Incharge as per the instructions given by the Opposite Party No.1. On 30/6/2019 the OP.1 instructed his employees i.e., the applicant Shaik Moulali and the deceased Chennamsetti Venkatesh, Chennamsetti Srinivasa Rao who is working as Purchase Incharge under OP.1, to get packing covers from Narasaraopet. It is further stated that the Opposite Party No.1 also gave his motor cycle (Honda CB Shine) bearing Registration No.AP 39 J 1587 to the deceased Chennamsetti Venkatesh and the applicant for getting packing covers from Narasaraopet. The said motor cycle is insured with OP.2, vide Policy No.SB006439 period of insurance for OD and PA from 22/2/2019 to 21/2/2020 and period of Insurance for TP from 22/2/2019 to 21/2/2024. While the matter stood thus, on 30/6/2019 at about 10.30 P.M., when the applicant and the deceased reached opposite to Kalvari Temple, Nambur Mandal, an unidentified vehicle running in the same direction came from back side of the motor cycle in a+ rash and negligent manner, dashed the subject motor cycle from back side and went away without stopping the vehicle. As a result of which, the applicant fell on divider and received serious injuries to his both legs and other multiple injuries which are grievous in nature. The rider of the motor cycle i.e., Chennai Venkatesh sustained severe head injuries and died on the spot. The applicant shifted to Government general Hospital, Guntur for treatment and underwent multiple operations over his legs. The applicant has spent around Rs.2,00,000.00 towards medical expenditure, transport nutrition and other charges and the Medical Board, GGH, Guntur issued disability certificate dtd. 17/11/2020 with 68% of disability. Hence prayed to grant compensation of Rs.10,00,000.00 at 12% p..from the date of realization. 5. The Opposite Party No.2 has filed Chief Affidavit as RW.2 stating that he was working as Legal Manager-Claims in the OP.2 company and looking after all the legal matters. He submitted that the petition is not maintainable as there was no employer-employee relationship with OP.1 and they do not come under purview of WC Act, and hence on this ground petition is liable to be dismissed. 6. During the course of examination, the Tribunal framed the following issues: 1) Whether there is employee-employer relationship between the applicant and the OP1? 2) If so, for what compensation the applicant is entitled to? And who has to pay the compensation? 7. After careful examination and after considering the entire material available on record, the Tribunal has held that the Opposite Party No.1 and the Opposite Party No.2 i.e., appellant herein are jointly and severally have to deposit an amount of Rs.8,16,666.00 before the Commissioner of Labour, Guntur within 30 days from the date of receipt of a copy of that order. Insofar as E.C.No.10 of 2021 is concerned, the Tribunal has held that both the Opposite Parties are directed to deposit an amount of Rs.8,69,376.00 by means of Demand Draft drawn in favour of the Commissioner for workmen"s Compensation, Guntur on SBI, within 30 days from the date of receipt of the order. 8. Heard Sri S.A. Khadar, learned Standing Counsel for the appellant-Insurance company and Dr. Sastry Jandhyala and Sri D. Venkata Narasimham, learned counsels appearing for the respondents. 9. Learned Standing Counsel for the appellantInsurance Company submits that, in pursuance of the orders passed by the Commissioner, the appellant herein while preferring two appeals before this Court, has gave two cheques for awarded amounts of Rs.8,16,666.00 & Rs.8,69,376.00 respectively vide Cheque No.244862 dtd. Sastry Jandhyala and Sri D. Venkata Narasimham, learned counsels appearing for the respondents. 9. Learned Standing Counsel for the appellantInsurance Company submits that, in pursuance of the orders passed by the Commissioner, the appellant herein while preferring two appeals before this Court, has gave two cheques for awarded amounts of Rs.8,16,666.00 & Rs.8,69,376.00 respectively vide Cheque No.244862 dtd. 21/2/2023 for an amount of Rs.8,16,666.00 and Cheque No.243278, dtd. 16/2/2023 for an amount of Rs.8,69,376.00o drawn on ICICI Bank, Guntur, in favour of the Commissioner for Workmen"s Compensation, Guntur, as a condition precedent for appeal and hence the claimants may not be permitted to withdraw the deposit amount as the appellant preferred the present appeals before this Court. He further submits the Commissioner erred in assessing the income of the deceased and also failed to appreciate the material available on record that there is no employer employee relationship with the Opposite Party No.1 and the same was admitted by the RW.1 in his cross examination and the learned Commissioner has not gone through the depositions of RW.1 and came to a wrong conclusion that the applicant is eligible for getting compensation from the appellant/Opposite Party No.2. He further submits that the Commissioner ought to have read the contents of FIR correctly as the FIR was given by the injured i.e., Shaik Moulali giving his version but the Commissioner did not gone through the depositions of RW.1 i.e., Opposite Party No.1, who clearly admitted that the applicant was not employed by him in the super market and did not give any appointment letter to the applicant and never paid any salary to the applicant. Further, the learned Commissioner grossly erred in arriving at a finding that Opposite parties No.1 and 2 are liable to pay compensation though the Commissioner hold that the applicant sustained injuries during and out of the course of employment as stock in-charge of Opposite Party No.2. He further submits that the Commissioner has also grossly erred in granting comes nation by taking the wages as Rs.9,100.00 and considering the disability of 68% which is high and question of granting compensation under W.C. Act does not arise as there is no employer and employee relationship in between the applicant and the opposite party No.1. Therefore, he prays to allow these appeals. 10. Therefore, he prays to allow these appeals. 10. Per contra, Dr.Sasty Jandhyala, learned counsel appearing for the 1st respondent has filed counter affidavits in both the appeals and denied all the allegations made in the appeals. He contended that the appellant wantonly suppressed the material fact that the 2nd respondent/Opposite Party No.1 clearly admitted in his counter and Chief examination affidavit that "The applicant worked as stock incharge, he discharge his duties in godown -cum-shop, he does not relating any sales and purchase". In view of this, the allegations of the appellant were proved false. He further contended that the learned Commissioner rightly passed Award in favour of the 1st respondent after considering al the aspects including existing of employer and employee relationship between the 2nd respondent/Opposite Party No.1 and that the 1st respondent sustained injuries while discharging his duties as an employee of the 2nd respondent/Opposite Party No.1. He mainly contended that if the 1st respondent/applicant has not been went to Narasaraopet to get covers belongs to 2nd respondent/opposite party No.1 and executing his duties for the benefit of 2nd respondent/O.P.1, injuries will not caused to him. He further contended that the appellant wantonly filed these appeals only with a view to harass the 1st respondent and there are no bonafides to the appellant in filing these appeals. 11. On the other hand, Sri D.Venkata Narasimham, learned counsel also filed counter on behalf of the 2nd respondent while denying all the allegations made in the appeal contended that the learned Commissioner ought to have gone through the documents filed before the Commissioner, as the applicant did not file any documentary proof to show that the 1st respondent/applicant was employed by this respondent and the said accident occurred during the course of employment which is a basic and mandatory provision of law in E.C Act and that without any documentary proof the learned Commissioner simply relied upon FIR, inquest report and other police records which is not at all reliable in this case, as in E.C Act, employment should be proved for granting compensation in EC Act and the learned Commissioner failed to go through the depositions of RW.1 as RW.1 denied the employment of the 1st respondent/applicant and the learned Commissioner ought to have dismissed the case. He further contended that the learned Commissioner grossly erred in arriving at a finding that opposite parties No.1 and 2 are liable to pay compensating though the Commissioner hold that the applicant sustained injuries during and out of the course of employment. 12. The evidence adduced on behalf of the applicants clearly demonstrates that both the applicants as per instructions given by Opposite Party No.1 went to Narasaraopet and that the deceased died on 30/6/2019 in an accident arising out of and in the course of his employment under opposite party No.I, while he was driving Motorcycle bearing Registration No.AP 39 J 1587, owned by the opposite party No.I. The only dispute is with regard to the fastening the liability on the appellant. 13. On a perusal of the material available on record, this Court observed that in the FIR and inquest report, it is clearly mentioned that the employer of K-Mart instructed the deceased and the applicant to go to Narasaraopet and bring packing covers for his newly opening show room to be opened on 4/7/2019 and during the return journey the accident occurred due to hit by an unknown vehicle to the Motor Cycle on which the deceased and another were travelling. The motor cycle was given by the opposite Party No.1 to the deceased for the said purpose. The opposite party No.1 in his chief examination admitted that the deceased worked as stock incharge in his establishment. During the cross examination, he stated that he do not know who has taken his motor cycle, which is unbelievable. If his version is correct, he might have been lodged a complaint with regard to missing of his motor cycle before police. He admitted that Moulali's father worked as Mason Maistry at the time of construction of the K-Mart super market. 14. This Court further observed that the accident did not occur during the course of employment as it occurred after duly hours. The relationship between the employer and employee has been established. He admitted that Moulali's father worked as Mason Maistry at the time of construction of the K-Mart super market. 14. This Court further observed that the accident did not occur during the course of employment as it occurred after duly hours. The relationship between the employer and employee has been established. This court further observed that, the Commissioner while calculating the wages of the applicant-Moulali, though he did not file any document to show the monthly wages, the Commissioner held that the wages fixed by the Government can be taken as his monthly wages i.e., minimum rates of wages to Godown in-charge is Rs.9,100.00 (Basic Rs.4102.00 plus D.A. @ Rs.4998.40) as on the date of accident to Godown Incharge working in Schedule employment of shops and Establishments vide G.O.Ms.No.116 LET &F (Lab.II) Department which was published at Gazette on 7/12/2007 along with VDA notified from time to time. Taking into consideration the said aspect, and also taking into consideration the disability at 68%, granted compensation and awarded an amount of Rs.8,16,666.00. 15. Insofar as the applicant in W.C. No.10 of 2021 i.e., CMA No.128 of 2023, the wages of the applicant was fixed by the Commissioner as per G.O.Ms.No.116, dtd. 7/12/2007 and the wages of the deceased at the time of his death are placed at Rs.4,722.00 besides VDA of Rs.4,998.00 totaling to Rs.9,720.00 and restricted to Rs.8,000.00 for the purpose of calculation of compensation amount, as per the provisions of Sec. 4(1)(B) of the Employees Compensation Act 2009 and total arrived at Rs.8,67,640.00 besides stamp duty of Rs.1736.00 totaling to Rs.8,69,376.00. 16. It is pertinent to mention here that as per Sec. 4 of Employees Compensation Act 2009, which reads as under: Sec. 4 of the Act: "Amount of Compensation:- (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely:- (a) Where death results from the injury - an amount equal to fifty percent of the monthly wages of the deceased workman multiplied by the relevant factor, or an amount of eighty thousand rupees, whichever is more. (b) xxx Explanation I:- For the purposes of Clause (a) and Clause (b), "relevant factor" in relation to a workman means the factor specified in second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due." The same is based on record and there is nothing to vary with the same. 17. Having regard to the above provision, the Commissioner rightly awarded compensation to the applicants. As per the finding of the Commissioner, the compensation has to be paid by the insurer. Accordingly, the insurer is also liable to pay compensation. As such, there is no irregularity or illegality in awarding compensation by the Commissioner. 18. The findings of the Commissioner are based on proper appreciation of the evidence on record. There is nothing to take a different view. There is no question of law, much less substantial question of law, in the present appeal, as enunciated under proviso to Sec. 30 of the Employees Compensation Act. The appeals are devoid of merits and the same are liable to be dismissed. 19. In the result, the Civil Miscellaneous Appeals are dismissed. It is made clear that the awarded compensation amounts which are deposited by the appellant vide Cheque Numbers as stated supra, the applicants are permitted to withdraw the entire amount along with the interest accrued thereon. 20. There shall be no order as to costs. 21. As a sequel, miscellaneous applications pending, if any, shall also stand closed.