THE HON’BLE MR JUSTICE V.SURI APPA RAO
C.M.A NO.1489 OF 2003
DATED: 16.04.2014 Between:
United India Insurance Co. Ltd.
And Smt G.Gesudaraj and others .. Appellant/ Opposite Party No.2 .. Respondents THE HON’BLE MR JUSTICE V. SURI APPA RAO
C.M.A NO.1489 OF 2003
JUDGMENT:
This appeal is directed against the order dated 28.02.2003 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III, Hyderabad (hereinafter called as ‘Tribunal’) in W.C.No.29 of 2002, where by the learned Commissioner allowed the application filed by respondents 1 to 3 and awarded compensation of Rs.2,22,314/- as against the claim of Rs.3,00,000/- on account of the death of Sri Mohd.Asif, due to drowning on 10.09.2000 during the course of employment under respondent No.4.
2. For the sake of convenience, the parties herein are referred to as arrayed in the trial below.
3. The relevant facts leading to filing of this appeal are hereunder:
The deceased late Mohd.Asif, the driver of the lorry bearing No.APT 5411 belonging to the first opposite party, took the lorry to a tank at Chintal known as ‘Chintal Cheruvu’ for washing the lorry on the instructions of the first opposite party and got drowned in the water and died as he could not know swimming. The dead body of the deceased was immediately shifted to the Government Hospital, Siddipet for postmortem. The Police, II Town registered a case in Crime No.40 of 2000 against Mohd. Yousuf, owner of the lorry.
4. Taking into consideration all the factors, the applicants, who are the mother, unmarried sister and minor brother of the deceased, filed application before the Tribunal seeking compensation of Rs.3,00,000/- on the ground that the deceased Mohd. Asif died during the course of employment under respondent No.4 herein, who is no other than the father of the deceased. The first opposite party i.e. father of the deceased filed counter admitting that he is the registered owner of the lorry and having control over the lorry and doing business of the lorry by engaging drivers and that the deceased Mohd. Asif was having valid driving licence at the time of accident and was employed by him as driver on the lorry and he was authorized to take the vehicle to the tank for the purpose of cleaning. He also further admitted the manner of accident and the death of the deceased due to drowning.
5. The insurer (opposite party No.2) of the lorry belonging to the first opposite party resisted the claim of the applicants contending that there was no relationship of employer and employee and denied the employment of the deceased as driver of the lorry and also denied the manner of accident alleged by the applicants and the applicants are not entitled to any compensation as the deceased was not the workmen within the definition of Section 2(n) of the Act. The claim petition is collusive one in order to claim compensation.
6. On behalf of the claimants, AW.1, who is the sister of the deceased was examined and got marked Exs.A1 to A7. RWs1 to 3 were examined on behalf of the respondents and got marked Exs.B1 to B.3.
7. Considering the oral and documentary evidence adduced by both parties, learned Tribunal allowed the application filed by the applicants holding that the deceased died during the course of employment under respondent No.4 and that the vehicle was insured with the insurer of the vehicle and awarded compensation of Rs.2,22,314/-.
8. Aggrieved by the Award passed by the Tribunal, the insurer of the vehicle filed this appeal on the ground that the deceased was not employee under the father i.e., owner of the lorry and there was no relationship of employer and employee and that the deceased was not holding any driving licence and the death was admittedly due to the drowning. Therefore, the Tribunal was not justified in awarding compensation.
9. By an order dated 05.12.2011, this Court after hearing the arguments of both the parties, directed the respondents/applicants to produce the driving licence of the deceased and posted the matter for judgment on 04.01.2012. Till today, the respondents/applicants have not taken steps to file copy of the driving licence before this Court or the particulars thereof and have not complied with the orders of this Court. Nearly more than two years time is granted after hearing the matter and though posted the matter for judgment and directed the applicants to produce the copy of licence, they failed to produce the same. Therefore, it can be inferred that the deceased was not holding any driving licence. Admittedly, the death was due to drowning when the deceased was washing the vehicle in Chintal Cheruvu. Relating to the death of the deceased, the applicants have not filed any kind of documents to prove that the deceased was employee under his father and thus failed to establish the relationship of master and servant between the deceased and the 4th respondent herein, who is none other than his father. The appellant/insurance company has specifically alleged in the grounds of appeal that the deceased was not a driver and did not have any driving licence and that the deceased died due to drowning. Learned counsel for the appellant further contended that the lorry cannot be taken into a pond for the purpose of washing.
It appears that the deceased boy had gone for swimming and drowned. In order to claim compensation, the 1st applicant, who is none other than the unmarried sister of the deceased filed application with false averments stating that the deceased was driver and drowned while cleaning the lorry. It is also an admitted fact that after due investigation into the matter, the police also referred the matter as “died due to drowning’ and the owner is not responsible for the death when the vehicle was taken to the pond for the purpose of cleaning. When the vehicle was taken to the pond for the purpose of cleaning, he could have caught hold of any part of the vehicle when there is apprehension of drowning and when he did not know swimming. It is also an admitted fact that the close relative of the deceased was eye witness to the incident and he lodged complaint to the police. There should be proximate death and there should not be any nexus to the cause of death involving the vehicle. The very fact that the applicants have failed to produce the driving licence of the deceased in spite of this Court directing about two years back and in the absence of any driving licence, it can be inferred that there was no acceptable evidence that the deceased has taken the vehicle to the pond for the purpose of cleaning and he died due to drowning in the very same pond. Furthermore, the applicants have failed to prove the employee and employer relationship between the deceased and the 4th respondent, who is none other than the father, and the deceased died during the course of employment.
10. In view of the above facts and circumstances, I feel that the learned Commissioner was not justified in holding that the deceased was employed with his own father, 4th respondent, and that the death of the deceased was during the course of employment.
11. The appeal is, accordingly, allowed. The order dated 28.02.2003 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III, Hyderabad in W.C.No.29 of 2002 is hereby set aside. Consequently, the appellant/insurance company is not liable to pay any compensation. It is submitted that the appellant company deposited the entire compensation amount awarded by the Tribunal and the applicants were permitted to withdraw 1/5th of the amount by virtue of the interim orders dated 29.08.2003, and therefore, the appellant is entitled to withdraw the amount in deposit with accrued interest. There shall be no order as to costs.
Date: 16.04.2014 V.SURI APPA RAO, J kvrm THE HON’BLE MR JUSTICE V. SURI APPA RAO
C.M.A NO.1489 OF 2003
DATE: 16.04.2014