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2025 DIGILAW 1010 (TS)

UNITED INDIA INSURANCE CO LTD. v. KHAIRUNBEE

2025-09-11

NARSING RAO NANDIKONDA

body2025
JUDGMENT : NARSING RAO NANDIKONDA, J. 1. This appeal is preferred by the appellant-United India Insurance Company Limited under Section 30 of the Workmen’s Compensation Act, 1923 (for short ‘the Act”), against the order, dated 10.03.2015 passed in W.C.No.122 of 2013 by the Commissioner For Employees’ Compensation and Assistant Commissioner of Labour-IV, Hyderabad (herein after referred to as “the Asst. Commissioner of Labour”). 2 . For the sake of convenience, the parties will be referred to herein before the Authority. 3. Brief facts of the case are that the applicant had filed a claim-petition under the provisions of the Act, for the death of her son by name Asif Pasha (hereinafter referred to as “the deceased”) claiming compensation against the employer of the deceased i.e. owner of the Jeep bearing No. AP 22 U 3599 and also against the insurer of the said Jeep, United Indian Insurance Company Limited, Hyderabad. It is stated that the deceased was an employee as driver under the employment of opposite party No.1. During the course of employment on 26.11.2007, as per the instructions of 1 st opposite party the deceased was proceeding on the Jeep bearing No. AP 22 U 3599 from Makthal to Narayanpet and when he reached the limits of Thipraspally Village, the driver of one DCM Van was coming from opposite direction and both the jeep and the Van are collided. As a result of which, the deceased had to sustain severe fracture injuries. Immediately after the accident, the deceased was shifted to Area Hospital, Narayanpet and from there he was shifted to Government Hospital, Mahabubnagar, where he died while undergoing treatment. 4. Basing on a complaint, the Police, Utkoor, registered a case in Crime No.55 of 2007 for the offences punishable under Sections 304-A and 337 of I.P.C. 5. It is stated that the deceased was aged about 21 years and was earning Rs.6,000/- per month and Rs.100/- per day towards batta. It is further stated that in view of the death of the deceased, the applicant lost her son. It is further stated that the accident occurred during the course of employment and as such opposite party No.1 being the employer of the deceased and opposite party No.2 being the insurer of the said Jeep are jointly and severally liable to pay the aforesaid compensation. 6. Opposite Party No.1 did not file the counter. It is further stated that the accident occurred during the course of employment and as such opposite party No.1 being the employer of the deceased and opposite party No.2 being the insurer of the said Jeep are jointly and severally liable to pay the aforesaid compensation. 6. Opposite Party No.1 did not file the counter. Opposite Party No.2 filed counter denying the averments made in the application and also denied that the applicant is the legal representative of the deceased and also denied that the deceased was an employee within the meaning of the Act. It is specifically contended that there is no employee and employer relationship between the deceased and Opposite Party No.1. It is further denied the employment of the deceased as driver of the Jeep, mode and manner in which the accident occurred, age and income of the deceased. It is specifically contended that the accident did not occur during the course of employment. It is further contended that the deceased was not having valid and effective driving licence at the time of the accident and there is no valid permit and fitness certificate to show that the said Jeep was road worthy to ply on the road. Further, as Opposite Party No.1 is the father of the deceased there is no employer and employee relationship between them. It is further stated that the compensation claimed is excessive and disproportionate. 7. Opposite Party No.2 also filed additional counter in which it is stated that the claim itself is suspicious as the claim was made with delay of 1068 days and the applicant did not choose to explain the delay in detail with documentary evidence that there is no nexus between the employer and employee relationship between Opposite Party No.1 and the deceased and that the death did not occur in the course of employment. There is no evidence to show that Opposite Party No.1 engaged the deceased as driver, moreover, the deceased was proceeding in the Jeep as inmate and that the applicant has failed to examine Opposite Party No.1 as the same would go against her. Opposite Party No.2 stated that the deceased and Opposite Party No.1 are living in the same house as son and father, hence the deceased was not a workman within the meaning of the Act and as such the applicant is not entitled for any compensation from Opposite Party No.2. Opposite Party No.2 stated that the deceased and Opposite Party No.1 are living in the same house as son and father, hence the deceased was not a workman within the meaning of the Act and as such the applicant is not entitled for any compensation from Opposite Party No.2. It is further contended that Opposite Party No.1 did not contest the application would clearly show the collision between the applicant and Opposite Party No.1 and only to claim the compensation a story of employee and employer relationship was created by the applicant. 8. During the course of enquiry, the applicant herself was examined as A.W.1 and got marked Exs.A1 to A8. On behalf of Opposite Party No.1 none were examined. On behalf of Opposite Party No.2 one Abhijeet Dubey, Administrative Officer, was examined R.W.1 and Exs.B1 and B2 were marked. 9. Having considered the oral and documentary evidence adduced by both the parties and after hearing both sides, the learned Assistant Commissioner of Labour came to conclusion that the deceased would come within the meaning of the Act as he worked as Driver of the Jeep bearing No.AP 22 U 3599 and held that Opposite Party Nos.1 and 2 are jointly and severally liable to pay the compensation to the applicant, who is dependant of the deceased and awarded an amount of Rs.4,23,222/- along with interest 12% per annum from 05.11.2012 till the date of realization. 10. Aggrieved by the said order passed by the learned Assistant Commissioner of Labour, the opposite party No.2-insurance company preferred the present appeal on the following grounds:- (i) the learned Assistant Commissioner of Labour did not consider the fact that there is no employer and employee relationship between the petitioner and opposite party No.1 and failed to note that it is a collusive claim petition filed by the applicant against opposite party No.1, who is none other than her husband. (ii) the learned Assistant Commissioner of Labour failed to appreciate the fact that the deceased was not a workman within the meaning of Section 2 (n) of the Act and he was driving the jeep in the capacity of owner and not an employee. (ii) the learned Assistant Commissioner of Labour failed to appreciate the fact that the deceased was not a workman within the meaning of Section 2 (n) of the Act and he was driving the jeep in the capacity of owner and not an employee. (iii) the learned Assistant Commissioner of Labour completely erred in coming to the conclusion that the deceased is the employee of Opposite Party No.1 and the accident and death was occurred during the course of employment and the same is absolutely false and invented for the purpose of this case only to gain wrongfully from Opposite Party No.2. (iv) the learned Assistant Commissioner for Labour failed to appreciate the fact that except entering appearance through an advocate, the owner of the jeep neither appeared before the authority nor asserted that the deceased was working under him and in the absence of admission or proof of employment, the finding given by the learned Assistant Commissioner for Labour is erroneous and the same is liable to be set aside. (v) the learned Assistant Commissioner for Labour completely erred in the quantification of the compensation. (vi) the learned Assistant Commissioner for Labour without considering the admission of A.W.1 that as per the Ration Card, her son was aged about 27 years had taken the age of the deceased at 22 years and awarded excess amount. (vii) It is further contended that basing on the said grounds, the following substantial questions of law are arise for consideration:- “1. Whether the order of the Assistant Commissioner of Labour is correct in considering that the deceased was an employee of opposite party N.1 and comes within the meaning of Section 2 (n) of the Act? 2. Whether the Assistant Commissioner of Labour is justified in coming to conclusion that the deceased was an employee and the alleged accident occurred during the course of employment in the absence of any evidence with regard to the employee and employer relationship? 11. Heard Sri A.Rama Krishna Reddy, learned counsel for the appellant and Sri K.Venkatesh Gupta, learned counsel for respondent No.2. 12. The main grievance of the appellant/opposite party No.2 before this Court is that there is no employer and employee relationship and the same is invented so as to bring the said claim-petition under the Act. 11. Heard Sri A.Rama Krishna Reddy, learned counsel for the appellant and Sri K.Venkatesh Gupta, learned counsel for respondent No.2. 12. The main grievance of the appellant/opposite party No.2 before this Court is that there is no employer and employee relationship and the same is invented so as to bring the said claim-petition under the Act. It is vehemently argued by the learned counsel for the appellant that on the face of it discloses that it is a collusive claim-petition filed by the mother of the deceased, who is none other than the wife of the owner of the vehicle. He further argued that filing of the claim-petition after a period of 1068 days along with delay condonation petition would infer that it is only an afterthought and collusive only to claim the compensation from opposite party No.2. He further argued that the learned Assistant Commissioner for Labour has erroneously imposed the liability on opposite party No.2 taking into consideration that there is an employee and employer relationship between the deceased and opposite party No.1. 13. Admittedly, opposite party No.1 is the registered owner of the vehicle i.e., Jeep bearing No.AP 22 U 3599 and while he was proceeding from Makthal to Narayanpet and when he reached the limits of Thipraspally Village one DCM Van coming from opposite direction and both the Jeep and DCM Van have been collided, due to which the deceased sustained severe injuries and died. Opposite Party No.2 is the insurer of the said Jeep. 14. To support the contention of the applicant, the applicant got herself examined as A.W.1 and she relied upon Exs.A1 to A8 which are the F.I.R., Inquest Panchanama, Post Mortem Examination Report, Final Report, Policy, Registration Certificate, Driving Licence of the deceased and M.V.I. Report, respectively. Learned counsel for the applicant relying upon the judgments of the Hon’ble High Court of Madras in United India Insurance Company Limited vs. D. Manikandan and others , 2020 Supreme (Mad) 1083 and the Hon’ble High Court of Karnataka in Oriental Insurance Co. Ltd. vs. Hanumant , 2005 Supreme (Kar) 221 and Manohar Bhimappa More vs. Mahadev Bhimappa More , 2005 Supreme (Kar) 226 contended that there can be a employer-employee relationship between the father and son and hence, the contention of the appellant that there is no employee-employer relationship between the deceased and opposite party No.1 is liable to be rejected in toto. He further contended that there are instances whether a vehicle being used for transportation or commercial purpose, obviously it was driven by any of the family members. 15. After hearing both the counsel the point that arises for consideration is “whether there exists any employee and employer relationship between the deceased and opposite party No.2?” 16. POINT: It is seen from the record that the Jeep is the Transport and Motor Cab Vehicle. Admittedly, the deceased was travelling in the said Jeep at the time of the accident as driver. Though, it is initially denied by opposite party No.2 that the deceased never drove the Jeep, whereas it is contended that the deceased was driving the Jeep as the owner of the vehicle for his own benefit and not as an employee of opposite party No.1. Admittedly, there is no such bar whether a father can engage his son in the employment. The owner of the vehicle is Opposite Party No.1 and it can be inferred that as the deceased was driving the vehicle at the time of the accident, obviously he might have driving the said Jeep in two capacities one is as son of the owner of the vehicle or for any such remuneration received from his father for the purpose of driving the said vehicle. 17. In Oriental Insurance Co. Ltd. vs. Hanumant (supra) the Hon’ble High Court of Karnataka held as under:- “2. The contention of the insurer that there exists no relationship of employer and employee since the respondent No. 1 (driver) happens to be the son of the owner of the jeep, respondent No. 2, therefore, there cannot be a relationship of employer and employee is an untenable argument. It is not uncommon amongst the business family to engage their own kith and kin on employment for doing the business or commercial activity. Merely because in such a situation no wages are paid in cash is also not a ground to infer absence of a legal relationship of employer and employee, since there would always be consideration in kind computable in terms of money for the services rendered. The parties would not go for documentation of the contract nor create any documentary material to prove payment of wages in view of the peculiar family relationship. The parties would not go for documentation of the contract nor create any documentary material to prove payment of wages in view of the peculiar family relationship. Therefore, the fact that the respondent No. 1 and respondent No. 2 are father and son, is not a ground in law to infer the absence of the relationship of employer and employee under Workmen’s Compensation Act.” 18. In United India Insurance Co. Ltd. vs. D. Manikandan and others (supra) the Hon’ble High Court of Madras held as under:- “16. Moreover, as per decision reported in New India Assurance Company Limited v. Gajann D. Dengi and another, 2008 LIC 3317 , wherein it is averred that there can be a employer-employee relationship between the father and son, hence, the contention of the appellant that there is no employee-employer relationship between the 1 st and 2 nd respondents is rejected in toto. 17. Accordingly, considering all the above reasoning, the Court below has rightly fastened the liability on the appellant, with which, this Court does not find any reason to interfere with the same. Hence the award passed by the Commissioner for Workman Compensation (DCL), Salem in W.C.No.44 of 2010 dated 11.05.2015 is confirmed and the present C.M.A. is dismissed and the substantial question of law raised by the appellant are answered accordingly..” 19. In Manohar Bhimappa More v. Mahadev Bhimappa More (supra) the Hon’ble High Court of Karnataka held as under:- “3. On thorough consideration of the facts, the view taken by the Workmen's Compensation Commissioner is bad in law. After all the tractor-trailer is meant to be used for agriculture purpose and it requires employment of people. In the rural lifestyle, it is not uncommon to find the practice of oral appointment for specific purpose and time. Many a time, the persons in the family would be employed for doing the work instead of employing strangers. The fact that the injured is the brother and the guarantor for repayment of the loan is not a valid reason to hold that he was not a workman employed in connection with the tractor-trailer. The member of the family so employed cannot be considered as a workman in law only when he is the registered owner of the vehicle. Hence there is no inhibition in law for employment of member of the family in connection with the tractor-trailer. The member of the family so employed cannot be considered as a workman in law only when he is the registered owner of the vehicle. Hence there is no inhibition in law for employment of member of the family in connection with the tractor-trailer. In view of the peculiar family relationship it is absurd to insist on documentary proof of appointment and the payment of wages by cash as the only mode of consideration for proof of employment.” 20. No doubt, learned counsel for the appellant/opposite party No.2 has vehemently argued and contended that it is a collusive claim-petition filed by the applicant and opposite party No.1, but to substantiate his contention no material was placed either before the Assistant Commissioner for Labour or before this Court. In the absence of any such rebuttal evidence placed by the appellant and it is seen from the above judgments the facts in the aforesaid judgments and the facts in the present claim-petition are similar in nature, therefore, this Court do not find any ground to interfere with the finding given by the learned Assistant Commissioner for Labour with regard to the employee and employer relationship between the deceased and opposite party No.1. In view of the judgments referred to above, I do not see any ground to interfere with the findings given by the learned Assistant Commissioner for Labour. The substantial questions of law raised by the appellant are answered accordingly. 21. In the result, this C.M.A. is dismissed confirming the order, dated 10.03.2015 passed by the Assistant Commissioner for Labour in W.C.No.122 of 2013. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this appeal shall stand closed.