1 VS,J C.M.A.No.479 of 2018 APHC010776282017 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] MONDAY,THE NINETEENTH DAY OF JANUARY TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SMT JUSTICE V.SUJATHA CIVIL MISCELLANEOUS APPEAL NO: 479/2018 Between: 1. SHAIK SUMIYA AND 4 OTHERS, W/O.LATE SHAIK RIYAZ,R/O.TAILORS COLONY,KOTHURU VILLAGE,NELLORE RURAL MANDAL,SPSR NELLORE DISTRICT 2. SHAIK AZEEZ, S/O.LATE SHAIK RIYAZ,AGED ABOUT 17 YEARS, 3. SHAIK MOBEENA, D/O.LATE SHAIK RIYAZ 4. SHAIK MASTHAN, F/O.LATE SHAIK RIYAZ, 5. SHAIK FAREEDA, M/O.LATE SHAIK RIYAZ, ALL ARE R/O.TAILORS COLONY,KOTHURU VILLAGE, NELLORE RURAL MANDAL,SPSR NELLORE DISTRICT(APPELLANTS 2 AND 3 ARE MINORS REP BY THEIR MOTHER AND NATURAL GUARDIAN 1 ST APPELLANT SHAIK SUMIYA) ...APPELLANT(S) AND 1. S GANGADHAR REDDY AND ANOTHER, S/O.GANGI REDDY, OWNER OF SCORPIO CAR BEARING NO.AP 26 AF 114,BEHIND LLF SCHOOL,VEDAYAPALEM,NELLORE TOWN,SPSR NELLORE DISTRICT 2. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE 2 VS,J C.M.A.No.479 of 2018 CO.LTD,BRINDAVANAM,NELLORE,SPSR NELLORE DISTRICT ...RESPONDENT(S): Appeal Under Section_____against ordersCMA against the order passed in Order in EC.Case No.11/2011,dated 28-12-2016 passed by the Commissioner for Employees Compensation Act 1923-cum- Assistant Commissioner of Labour,Nellore IA NO: 1 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To condone the delay of 205 days in filing the appeal against the order passed in EC.Case No.11 of 2011 dated 28-12-2016 on the file of the Commissioner for Employees Compensation Act,1923-cum-Assistant Commissioner of Labour,Nellore and pass IA NO: 2 OF 2018 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to condone the delay of 211 days in representation of the above CMA.SR.No.33524 of 2017 and pass Counsel for the Appellant(S): 1. MADHAVA RAO NALLURI Counsel for the Respondent(S): 1. GUDI SRINIVASU 2. The Court made the following: 3 VS,J C.M.A.No.479 of 2018 JUDGMENT: This Civil Miscellaneous Appeal is filed under Section 30 of the Employees Compensation Act, 1923, by the appellants/applicants challenging the order dated 28.12.2016 passed on the file of the Court of the Commissioner for Employees’ Compensation Act, 1923 – cum – Assistant Commissioner of Labour, Nellore in E.C.Case No.11 of 2011, whereby the Court below awarded a compensation of Rs.5,50,315/- to the appellants/applicants against the claim of Rs.5,00,000/-, but directed the 1st respondent alone to pay the same to the appellants/applicants. 2. Brief facts of the case are as under: (a) For the sake of convenience, the parties will hereinafter be referred to as they are arrayed before the Court below. The applicants filed a case before the Court below claiming an amount of Rs.5,00,000/- towards compensation for the death of Shaik Riyaz while working as a driver of the Car bearing No.AP-26-AF-1114 which belongs to the 1st opposite party. The 1st applicant is the wife, 2nd and 3rd applicants are son and daughter, 4th and 5th applicants are father and mother of the deceased workman Shaik Riyaz. The deceased workman was employed by the 1st opposite party as Driver of the vehicle bearing No.AP-26-AF-1114. The 2nd opposite party is the insurer of the car belonging to the 1st opposite party. 4 VS,J C.M.A.No.479 of 2018 (b) On 29.01.2010, at about 07.00 p.m., while the deceased workman was proceeding from Nellore to Tirupati in the car of the 1st opposite party, collided with a vehicle (TVS-50) bearing No.AP-03-AK-4598, coming in the opposite direction, lost control over the car and as a result, the car turned turtle; with grave injuries, the workman died on the spot. Accordingly, the incident was report to the Station House Officer, Renigunta Police Station and a case has been registered in Crime No.11 of 210 under Section 304-A and 337 of the Indian Penal Code. It was contended that the deceased workman was earning Rs.4,000/- per month in addition to a batta of Rs.100/- per day and that he is aged about 28 years. (c) In the said case, the 1st opposite party was set exparte on 04.07.2012. The said case was contested by the 2nd opposite party – insurer of the subject car. The 2nd opposite party filed a counter affidavit denying the contentions of the applicants and stated that the accident occurred due to the negligence of the rider of TVS-50 and that the 2nd opposite party is not liable to pay compensation to the applicants in any manner. It is further contended that the deceased does not possess a valid driving licence to drive the vehicle. (d) After considering the submissions of either side, the Court below framed the following points for consideration: 5 VS,J C.M.A.No.479 of 2018 1. Whether Employee – Employer relationship is there and the applicants are entitled for compensation as claimed by the applicants? 2. To what relief the applicants are entitled to? 3. Who are liable to pay compensation? (e) During the course of trial, on behalf of the applicants, A.W-1 was examined and got marked Exs.A1 to A5. On behalf of the 2nd opposite party, the insurance policy was marked as Ex.B1. (f) The Court below, having considered the claim of the appellants/applicants, awarded a sum of Rs.5,50,315/- to the appellants/applicants. Further, it observed that the deceased workman was not possessing a valid driving license at the time of accident and that the appellants/applicants have not submitted any document relating to the driving license, as such, it fixed the entire liability on the 1st opposite party and thus, dismissed the case against the 2nd opposite party. 3. Heard Sri. N. Madhava Rao, learned counsel for the appellants/applicants and Sri. M. Sai Teja, learned counsel for the 2nd respondent. 4. During the course of arguments, learned counsel for the appellants has argued that the Court below ought not to have fixed the entire liability on the 1st respondent to pay the awarded amount to the appellants, on the sole ground that the appellants have not produced the driving license of the 6 VS,J C.M.A.No.479 of 2018 deceased workman. The burden of proof for establishing the driving license of the deceased workman lies on the 2nd respondent and as the 2nd respondent has not established that the deceased workman was not holding a driving license, the 2nd respondent shall be made liable to pay the awarded amount to the appellants. In support of his case, learned counsel for the appellants relied upon the judgment of the Hon’ble Supreme Court of India in Rishi Pal Singh Vs. New India Assurance Co.Ltd.&Ors.,1 and also the judgment of the High Court of Punjab and Haryana, in New India Assurance Company Limited Vs. Anita Sharma and another (FAO No.458 of 2014, dated 24.09.2014). He further contended that when there is a breach of conditions of the policy by the insured, no fault can be found with the insurance company and therefore, the principle of ‘pay and recover’ would apply, whereby, the insurance company first pays the compensation awarded to the claimants but has a right to recover the amount from the insured when there is no liability falling on the insurance company. He contended that the same principles ought to have been applied by the Court below in the instant case. Hence, learned counsel requested this Court to allow this appeal. 5. On the other hand, learned counsel for the 2nd respondent contended that the deceased workman was not at all an employee of the 1st respondent and that no such employee-employer relationship was established with an 1 2022 LiveLaw (SC) 646 7 VS,J C.M.A.No.479 of 2018 acceptable evidence. He further contended that the appellants failed to produce valid driving license of the deceased workman and that the deceased was not holding a driving license at all, as on the date of the accident. The Court below, has rightly considered the said fact and has fixed the entire liability of paying compensation on the 1st respondent. He further contended that, when the employee-employer relationship itself was not established, the principle of ‘pay and recover’ would not come into play. As the award passed by the Court below dated 28.12.2016 is on reasonable basis, learned counsel for the 2nd respondent requested this Court to dismiss this appeal. 6. Perused the entire material available on record. The Court below, having considered the rival contentions of the appellants and the 2nd respondent, held that the deceased workman died on 29.01.2010, while he was discharging his duties as driver of the vehicle belonging to the 1st respondent and has established the employee-employer relationship between the deceased workman and the 1st respondent. 7. Due to absence of any material evidence with regard to the salary drawn by the deceased workman, the Court below, considered the monthly salary of the deceased workman as Rs.5,177/- as per G.O.Ms.No.90, Labour, Employment, Training and Factories (Lab-II), department, dated 29.09.2007. With regard to quantum, the Court below observed that as per Section 4(a)(i) of the Employees Compensation Act, the compensation payable to the 8 VS,J C.M.A.No.479 of 2018 dependents of the deceased workman is equivalent to the multiple of half monthly wages and the relevant factor. As the deceased workman was aged 28 years as on the date of accident, the Court below took the relevant factor as 211.79 and concluded that Rs.5,48,218.00/- [Rs.5,177/- X 211.79 X 50/100 = Rs.548218.41/- which is rounded to Rs.5,48,218/-] is the amount liable to be paid to the appellants. In addition, Rs.1,097/- was awarded towards Court fee stamps and Rs.1,000/- towards costs of the application, to the appellant. In total, Rs.5,50,315/- was awarded to the appellants. 8. With regard to liability, the Court below, held that the appellants have not filed driving license of the deceased workman and relying upon the Ex.A4/MVI report, wherein it is stated that the particulars of the driver license are not available, the Court below came to a conclusion that in the absence of driving license, liability cannot be fixed on the insurer i.e., the 2nd respondent. Hence, the 1st respondent was made liable to pay compensation amount to the appellants, as he failed to fulfill the conditions of the insurance policy obtained from the 2nd respondent. Accordingly, the Court below dismissed the case against the 2nd respondent and directed the 1st respondent to deposit an amount of Rs.5,50,315/- before it within thirty days. 9. It is a well settled principle of law that under Employees Compensation Act, the initial burden of proof lies on the applicants to establish employee- employer relationship existed at the time of accident and in case of driver, it is 9 VS,J C.M.A.No.479 of 2018 to be established that he was possessing a valid driving license. In general, when a driver is appointed by an employer, the driving license and its validity would be ascertained at the first instance. In the case on hand, the driving license of the deceased workman was not produced by the appellants. Even the report submitted by the Motor Vehicles Inspector, which is marked as Ex.A4 would show that the particulars of the driving license of the deceased workman are missing. When employee-employer relationship between the deceased workman and the 1st respondent itself was doubtful, the decisions relied upon learned counsel for the appellants would not be of any help. As per the conditions of the insurance policy, the liability may be fixed on the 2nd respondent only if employee-employer relationship is established and a valid driving license is proved beyond any doubt. In the case on hand, no driving license of the deceased was produced and the employee employer relationship between the deceased and the 1st respondent is doubtful, in such a case, the Courts are bound to fasten the liability against such employer who permitted the deceased to drive the vehicle and the liability should not be fastened against the 2nd respondent herein. This Court is of the opinion that the Court below, has rightly computed the compensation to be awarded to the appellants and has rightly fastened the liability of paying such compensation on the 1st respondent. 10 VS,J C.M.A.No.479 of 2018 10. In view of the foregoing discussion, this Court finds no error in the impugned order dated 28.12.2019, passed on the file of the Court of the Commissioner for Employees’ Compensation Act, 1923 – cum – Assistant Commissioner of Labour, Nellore in E.C.Case No.11 of 2011. Accordingly, this civil miscellaneous appeal is hereby dismissed. No costs. Consequently, miscellaneous applications, pending, if any, shall also stand closed. ___________________ JUSTICE V. SUJATHA Date:19.01.2026. Gss