THE HON’BLE Ms JUSTICE J.UMA DEVI
CIVIL MISCELLANEOUS APPEAL No.2183 of 2002 & CIVIL MISCELLANEOUS APPEAL No.80 of 2010
COMMON JUDGMENT:
Since these appeals arise out of the award passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Ongole, Prakasam District in W.C.No.2 of 2001, both are heard together and are being disposed of by passing the common judgment.
CMA No.2183 of 2002:
2. In CMA No.2183 of 2002 the appellant is United Insurance Company Limited with whom the Zeep bearing registration No.AP7T- 8849 is insured. In the later appeal, the appellants are parents of the deceased by name Thottempudi Koteswararao. In both the appeals, it has not been contended by any of the parties that the Commissioner has committed error in awarding compensation of Rs.2,07,980/- and thus, the compensation determined is not in dispute.
3. Before the Commissioner for Workmen’s Compensation claim for compensation is laid by the wife, daughter and parents of the deceased raising a contention that the deceased while working as driver under Guduri Ramamurthy, the owner of the Zeep bearing registration No.AP7T-8849 (5th respondent herein), his death has occurred; since the death of the deceased has occurred during course of employment under Guduri Ramamurthy, the owner of the 2 JUD,J CMAs.2183/2002 & 80/2010 aforementioned Zeep, which is insured with the United Insurance Company Limited, they are entitled to lay a claim for compensation as against both.
4. The Commissioner for Workmen’s Compensation having been convinced with the statement made by Smt.Thottempudi Ramadevi, the wife of the deceased has determined the compensation at Rs.2,07,980/- restricting the monthly wages of the deceased at Rs.2,000/- as per Explanation II of Sec.4(1)(b) of Workmen’s Compensation Act. In addition to the amount so determined, a sum of Rs.416/- towards costs of stamps and a sum of Rs.200/- towards costs of the application is awarded. Thus, total compensation of Rs.2,08,596/- is awarded to the claimants in W.C.No.2 of 2001.
5. The contention raised by the appellant-insurance company while assailing the award passed by the Commissioner for Workmen’s Compensation is that placing reliance on the solitary testimony of the wife of the deceased, the Commissioner ought not to have come to the conclusion that the relationship of employee and employer is established; its’ other contention is that due to non-filing of driving licence by the applicants, the Commissioner may have drawn an adverse inference as against them; Instead of dismissing their claim for compensation, by drawing adverse inference, the Commissioner has awarded compensation to them and fastened the joint liability of payment of compensation as against the insurance company. This is main argument advanced by 3 JUD,J CMAs.2183/2002 & 80/2010 the insurance company while questioning the award under challenge.
6. The Administration Officer of the Insurance Company is examined by the appellant’s insurance company as OP-2. The contention of the appellant’s insurance company is that the terms and conditions of the policy of the vehicle are deliberately violated/breached by the vehicle owner and due to breach of terms and conditions of the policy by him, insurance company may have been absolved from the liability of payment of compensation.
7. Here in this case, the deceased was aged about 30 years by the date of accident as per the evidence given by the wife of the deceased and he was working as driver under Respondent No.5- Guduri Ramamurthy since 13 years prior to his death.
Notices issued on respondent No.5, the owner of the Zeep, were the documents produced by the insurance company to claim that the deceased had no licence, and that terms of the policy were contravened by respondent No.5.
But this itself is not enough to say that the deceased had no proper driving licence. It is not in dispute that death of the deceased took place while he was working as employee under Respondent No.5 herein. It is born by record that the deceased was working as driver under Respondent No.5 since 13 years prior to his death. The evidence given in this regard by the wife of the deceased has not been rebutted.
8. It has been contended by the counsel who appeared for the parents of the deceased that the defences enshrined under Section 4 JUD,J CMAs.2183/2002 & 80/2010 149 of M.V.Act can be raised in the claim made under Motor Vehicles Act, but not in the claim laid under Workmen’s Compensation Act, which is a welfare legislation enacted in the interests of the workmen.
9. Here in this case a contention as regards to breach of terms and conditions of the policy by the vehicle owner is raised by the insurance company without production of any evidence as regards to non-possessing of driving licence by the deceased, and that raising of such defence is only available under Motor Vehicles Act but not under Workmen’s Compensation Act, which is altogether a different Act.
10. When a contention is raised by the insurance company that no driving license was possessed by the deceased and due to failure of respondent No.5 and the applicants to produce the driving licence of the deceased, the Commissioner ought not to have made the insurance company liable to pay compensation along with owner of the offending vehicle, it is its duty to discharge the burden of proving such contention.
But no evidence is placed before the Commissioner for Workmen’s Compensation to establish that the deceased had no licence to drive the Zeep and that the relationship of employee and employer not existed between him and Respondent No.5.
In the absence of any valid evidence as regard to the plea of defence of wilful and deliberate breach of the terms and conditions of the policy by respondent No.5, the Commissioner cannot be faulted in directing the appellant-insurance company to pay 5 JUD,J CMAs.2183/2002 & 80/2010 compensation by fixing joint liability of payment of compensation as against it. The appeal filed by the insurance company fails for this reason, and is hereby dismissed accordingly. CMA No.80 of 2010
11. Coming to the other appeal, which is filed by the parents of the deceased, questioning the apportionment of compensation made by the Commissioner for Workmen’s Compensation is concerned, the contention raised by the parents of the deceased, who are also arrayed as claimants in W.C.No.2 of 2001 that the widow of the deceased Smt.Thottempudi Ramadevi is not entitled to get compensation on account of her re-marriage.
Their further contention is that the widow of the deceased after re-marriage cannot be considered as dependent of the deceased and she is not the legal representative of the deceased, as defined under Section 2(1)(d)(i) of the Act; but the Commissioner without taking into consideration of this aspect, has awarded major compensation amount to her and meagre compensation of Rs.5,000/- for each of them. As per their contention no enquiry is held by the Commissioner for Workmen’s Compensation and no direction whatsoever is given to the dependants of the deceased to appear before him before passing an order for apportionment of compensation and thus, award passed by the Commissioner is wholly unjustified.
12. It is noticed on reading the award under challenge that at the time of passing of award under challenge, the apportionment of 6 JUD,J CMAs.2183/2002 & 80/2010 compensation amount to the applicants is not made and subsequent to passing of the award, the Commissioner for Workmen’s Compensation appears to have passed an order on 03.09.2002 apportioning the compensation among the applicants.
Vide order dated 03.09.2002, a sum of Rs.94,298/- each is awarded as compensation to the wife and minor daughter of the deceased, whereas the parents of the deceased are awarded with compensation of Rs.5,000/- each. Grievance of appellant in this case is regarding the order passed by the Commissioner in awarding compensation of Rs.5,000/- to each of them. Since this appeal is filed questioning the apportionment of compensation among the applicants, the insurance company may not have any role and it does not have any point to contest the case.
13. It is brought to the notice of this court that after filing of the present miscellaneous appeal, the father of the deceased expired. The main contention raised by the appellants is that the wife of the deceased after re-marriage cannot be considered as dependent of the deceased, therefore, the Commissioner ought not to have granted compensation of Rs.94,298/- to her.
14. It is not in dispute that even after re-marriage of the wife of the deceased, the daughter of the deceased remained with her and she herself had taken care of her and performed her marriage. Counsel who filed the appeal on behalf of the parents of the deceased has not disputed this fact.
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