1 APHC010541562013 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] MONDAY, THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO: 345/2013 Between: The United India Insurance Co. Ltd. ...APPELLANT AND Smt Gavini Lakshmi and Others ...RESPONDENT(S) Counsel for the Appellant: 1. SRINIVASA RAO VUTLA Counsel for the Respondent(S): 1. A S LAKSHMI 2. MANGENA SREE RAMA RAO The Court made the following: 2 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.345 of 2013 JUDGMENT: 1. The present Civil Miscellaneous Appeal is filed under Section 30 of the Workmen’s Compensation Act, 1923 questioning the Order dated 11.11.2011 in W.C.No.27 of 2010 passed by the Commissioner for Workmen and Assistant Commissioner of Labour, Narsipatnam, Visakhapatnam District. 2. O.P.No.2-Insurance Company is the Appellant herein. 3. The facts leading to filing of the present appeal are as follows:- The husband of the Claimant by name late Gavini Ramana (hereinafter referred to as ‘deceased’) was working as a Cleaner in the Lorry bearing No. AP 05Y 6779 under O.P.No.1/owner three years prior to the date of accident and was being paid monthly wage of Rs.4,000/- per month and Rs.50/- per day as allowance. On the instructions of O.P.No.1/owner, the deceased went to Jamshedpur in the offending lorry driven by one A.E. Appa Rao and after loading the Iron pipes for unloading at Veera Sandra, Bangalore. 4. On 01.11.2009, the lorry reached Bangalore and was parked at Sri Laxmi Venkateswara Lorry Transport Office, Bangalore. On the instructions of O.P.No.1/owner, the driver had engaged another local driver by name Balakrishna, as he had better acquaintance with the roads in Bangalore City. The deceased as the Cleaner accompanied the local driver Balakrishna to unload the Iron pipes at Veera Sandra and the lorry was stopped near Sankar Wines situated at Veera Sandra. As that day being Sunday, the Iron pipes 3 could not be unloaded from the lorry and the local Driver Balakrishna went to his residence. Thereafter, at about 21.45 hours, one unidentified vehicle, which was coming from Bangalore to Hosur on N.H.7, hit the deceased, while the deceased was crossing the road. In the said accident, the deceased suffered grievous injuries and was admitted in NIMHANS Hospital, Bangalore for treatment. On the next day, the deceased succumbed to his injuries. 5. The local police were also informed of the incident and a criminal case was registered under Sections 279, 337 IPC and 134(a) & (b) R/w 187 of Motor Vehicles Act, which was later altered to Sections 279 and 304-A IPC and Section 134(a) & (b) R/w Section 187 of Motor Vehicles Act in Cr.No.175 of 2009 by S.H.O. Electronic City Mobile P.S., Bangalore City. 6. On 03.11.2009 Post-mortem was conducted. As the deceased was the only income earning person, compensation of Rs.3,75,000/- was sought from the O.P.Nos.1 & 2 i.e. owner and the Insurance Company respectively. 7. O.P.No.1 i.e. owner of the lorry filed his counter disputing the jural relationship of the employer and employee and that the deceased never worked under him at any point of time. He deposed that he had engaged a driver by name Akula Eswara Rao and cleaner by name M. Sattibabu since the purchase of said vehicle and contended that the deceased was never engaged by him. However, it was admitted that the cleaner M. Sattibabu suffered with high fever and without intimation, the deceased was engaged by the driver Akula Eswara Rao, as a substitute to the regular cleaner M. Sattibabu. 4 8. O.P.No.2/Insurance Company filed its counter disputing the accident, employer and employee relationship, the age of the deceased and the salary that was being paid to the deceased. 9. On the basis of the pleadings, the Commissioner framed the following issues for consideration:- 1) Whether the deceased is a workman under the provisions of W.C. Act and there exists employee-employer relation and death arose out of and in the course of employment? 2) What is the age & wage of the deceased at the time of the accident? 3) Whether the applicant is entitled for any amount of compensation? If so what amount of compensation the applicants are entitled and who are liable to pay compensation? 10. In support of the claim, the Claimant herself was examined as A.W.1 and got marked Exs.A.1 to A.5 i.e. Attested Xerox copy of AIR dated 02.11.2009, Attested Xerox copy of Post-mortem Report dated 03.11.2009, Attested Xerox copy of Inquest Report, dated 03.11.2009, Xerox copy of Registration Certificate dated 06.11.2006 (subject to proof and relevancy) and Xerox copy of Insurance Policy (subject to proof and relevancy) respectively. 11. On behalf of the Opposite Parties, O.P.No.1 i.e. the owner/employer himself was examined as R.W.1 and an employee of O.P.No.2/Insurance Company by name K.V. Seshagiri Rao was examined as R.W.2 and Ex.B.1 Insurance Policy and Ex.B.2 Investigation Report were marked on their behalf. 5 12. Taking into consideration the oral and documentary evidence, the Commissioner upheld the relationship of employer and employee and held that the accident occurred in the course of employment, the age of the deceased was taken as ‘27’ years and monthly wage at the time of accident was taken at the rate of Rs.3,648/- per month as per G.O.Ms.No.83, Labour Employment and Training, Dated 04.12.2006 and awarded compensation of Rs.3,89,552/-. O.P.No.1 i.e. owner/employer as well as O.P.No.2-Insurance Company were held to be jointly and severally liable for the compensation. Hence, the present C.M.A is filed. 13. Heard Sri Srinivasa Rao Vutla, learned counsel for the Appellant-Insurance Company for Smt. A.S. Laskhmi and Sri Mangena Sree Rama Rao, learned counsel appearing for the Respondents. The counsel for the Appellant-Insurance Company contended that once the employer/O.P.No.1 has filed counter disputing the very employment and having reiterated the same in his chief affidavit, the Commissioner without examining this portion of evidence awarded compensation. The counsel for the Respondent No.1/Claimant contended that O.P.No.1 i.e. employer though denied the employment of the deceased in his chief affidavit had admitted the employment of the deceased in the cross examination made by the Claimant as well as by the O.P.No.2/Insurance Company and therefore the award of compensation need not be interfered with. 14. Having heard the respective contentions, this Court reasons as follows:- The vehicle-in-question was insured vide policy bearing No.150303/31/09/01/00000214 for the period from 19.04.2009 to 18.04.2010 and the policy covers the liability under Workmen’s 6 Compensation to two employees and there is no dispute on this aspect. Secondly, the F.I.R was immediately registered after the accident, which establishes that the vehicle was taken to Veera Sandra for unloading and that the accident occurred while the deceased was crossing the road and the accident can be said to be in the course of employment only. 15. As regards the primary dispute as to whether the deceased was employed by O.P.No.1, O.P.No.1/Respondent No.2 in his cross examination by the Claimant has stated as under:- “The deceased Gavini Ramana worked as Cleaner by the time of accident. Witness adds that the deceased worker two days back engaged as Cleaner but not three months. The deceased died during the course of his employment only. The contents of the chief affidavit mentioned in 2nd para not known and not correct. I am not responsible to pay compensation to the applicant as the accident lorry insured with O.P.2 and hence the O.P.2 is liable to pay compensation to applicant. I paid Rs.5,000/- through the Sarpanch of Bagalavada Village towards funeral expenses of the deceased.” 16. In the cross examination, at the instance of O.P.2/appellant- insurance company, the O.P.No.1/employer in his chief affidavit deposed as follows:- “At the time of the accident, the deceased Gavini Ramana accompanied with another driver as a cleaner. It is not true to suggest that the deceased gone as a traveler with the driver and hence O.P.No.2 is not liable to pay compensation to the applicant.” 7 17. The categorical statement of the owner i.e. O.P.No.1 in the cross examination dispels the doubt that the deceased was not employed by O.P.No.1. For the purpose of compensation under Workmen’s Compensation Act, the above admissions would suffice to make the O.P.No.1/employer liable to pay compensation and as the liability is indemnified by the O.P.No.2-Insurance Company, the appellant-Insurance Company cannot be exonerated itself from its liability. 18. Therefore, this Court does not find any substantial question of law in this appeal. Accordingly, the C.M.A is dismissed. There shall be no order as to costs. 19. Since the incident had happened in the year 2009 and considering the time gap of 16 years and the uncertain address of the Claimant, the State Legal Services Authority shall coordinate with the concerned Departments and inform the Claimant of the outcome of the appeal and ensure that the compensation is paid to the Claimant directly into her Aadhar linked bank account at the earliest. 20. The Registry is directed to mark a copy of this order to the State Legal Services Authority for taking necessary action. As a sequel, pending applications, if any, shall stand closed. __________________ NYAPATHY VIJAY, J Date: 17.02.2025 IS 8 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.345 of 2013 Date: 17.02.2025 IS