Honourable Sri Justice B.N. Rao Nalla
1. Aggrieved by the order in W.C. No. 8 of 2008 dated 15-05-2010 passed by the learned Commissioner for Workmen''s Compensation and Assistant Commissioner of Labour, Eluru, West Godavari District, whereby and whereunder the learned commissioner allowing the W.C. in part awarded a compensation of Rs. 3,45,040/- to respondent Nos. 1 to 7-applicants as against their claim of Rs. 6,00,000/-, the appellant-Opposite Party No. 2 i.e. Bajaj Allianz General Insurance Company Limited preferred this Civil Miscellaneous Appeal. Appellant herein is insurer of the mini lorry bearing No. AP37-W-8809 belonging to respondent No. 8 herein and they are Opposite Parties-II and I respectively before the learned Commissioner, and respondent Nos. 1 to 7, who are the applicants, are wife, children and mother of the deceased Shaik Dawood Saheb, who died in the accident.
2. For the sake of convenience, the parties are referred to as they arrayed before the learned Commissioner.
3. The case of the applicants before the learned Commissioner is that the deceased Shaik Dawood Saheb was working as driver on the mini lorry bearing No. AP37 - W - 8809 under Opposite Party - I for a monthly salary of Rs. 4,000/- per month apart from Rs. 50/- per day towards batta. While so, on 30-01-2009, while he was driving the mini lorry with the load of Eucalyptus clones from Jangareddigudem, West Godavari to Narsipatnam along with the cleaner Ganuboina Anji, at M. Chennavaram Outskirts, near L - turning point, due to turn and pits on the road, the lorry turned turtle, as a result, the driver and the cleaner sustained multiple grievous injuries all over their bodies and the driver died on the spot. Thus, the accident occurred and the deceased died during the course of his employment as driver of the mini lorry under Opposite Party-I. Hence, the applicants, who are kith and kin of the deceased, filed claim application.
4. Opposite Party-I remained ex parte. Opposite Party-II alone filed its counter denying the case of the applicants in toto.
5. Based on the rival pleadings of the parties, the learned Commissioner framed the following issues for trial:
1. Whether the deceased driver, Shaik Dawood died while on duty during the course of his employment with Opposite Party-I?
1. Whether the deceased driver had valid driving licence or not?
2. If the issues No. 1 and 2 are held affirmative, what are the age and wage particulars of the deceased driver?
3. Whether the Opposite Parties I and II are liable to pay compensation?
6. To prove their case, applicant No. 1 got herself examined as AW.1 and got marked Exs. A-1 to A-6 apart from Ex. X-1. On behalf of Opposite Party - II, RWs.1 and 2 were examined and Exs. B-1 to B-6 were marked.
7. The learned Commissioner, after considering the material available on record and relying on the evidence adduced on behalf of the applicants observing that the deceased driver was working under Opposite Party-I having valid driving licence to drive the vehicle and basing on G.O. Ms. No. 83 dated 22-11-2006 of Labour Employment and Training and Factories (Lab-II) Department, fixing his wages at Rs. 4,000/- per month, awarded a compensation of Rs. 3,45,040/- against Opposite Parties-I and II payable by them jointly and severally. Aggrieved by the same, the Insurance Company preferred this appeal.
8. Heard the learned counsel on either side and perused the material available on record.
9. Now the main contention of Opposite Party-II, Insurance Company-appellant, is that the deceased was not having valid driving licence to drive the vehicle involved in the accident at the time of accident that took place on 01-08-2007 as his licence was expired in 1997 itself and the same was proved by it by examining the official of the R.T.A. as RW.2; and its next contention basing on its main contention is that there is no relationship of employee and employer between the deceased and Opposite Party-I.
10. Learned counsel for the applicants supporting the judgment impugned contends that the learned Commissioner rightly came to the conclusion that as per the endorsements on Ex. A-6 the deceased had valid driving licence at the time of accident to drive the vehicle, involved in the accident, which belongs to Opposite Party-I and the same proves that the deceased was employee of Opposite Party-1, as such, there is no ground warranting interference of this Court with the order impugned.
11. Now the main points that arise for consideration in this appeal is whether the deceased was holding valid driving licence at the time of accident to drive the vehicle involved in the accident and whether there is relationship of employee and employer between the deceased and Opposite Party-I?
POINTS:
12. Coming to the question of whether the deceased was holding valid driving licence at the time of accident, as seen from the impugned award, Ex. A-4 is the attested copy of the driving licence of the deceased marked on behalf of the applicants. However, a Senior Assistant of the office of the Deputy Transport Commissioner, Vijayawada, who was examined as RW.2 on behalf of Opposite Party-II (insurance company - appellant), filed the original driving licence of the deceased and the same is marked as Ex. A-6. Ex. X-1 is the driving licence abstract of the deceased.
13. The evidence of RW.2, who is examined on behalf of Opposite Party - II itself, is that on Ex. A-6, there are endorsements about renewals of driving licence of the deceased after 2002 and 2007. However, RW.2 states that he cannot say about the genuineness of the particulars of those endorsements. He also states that the original driving licence can be renewed from any other office in India, but it can be renewed only after obtaining clearance certificate from the original licensing office and he cannot say whether any clearance certificate was issued to the deceased from the Department. During the course of cross-examination, he also stated that he cannot say whether there is any such intimation to their office by the renewal office.
14. As per the endorsements on Ex. A-6, the licence was renewed after 2002 and 2007, which means that the licence of the deceased was in force as on the date of accident since the date of accident is 01-08-2007 and the same is supported by the evidence of RW.2 himself, who is examined on behalf of Opposite Party - II. However, RW.2 disputes about genuineness of the renewal endorsements on Ex. A-6, but at the same time he also says that he cannot say whether there is any clearance certificate issued to the deceased from the Department since the licence can be renewed from any R.T.A. office in India but it requires clearance certificate from the original licensing office. During the course of cross-examination, he also admitted that he cannot say whether there is any such intimation to their office by the renewal office. Thus, this witness is unable to say whether the clearance certificate was issued to the deceased to get the renewal of the licence or any such intimation received by the Department from the office of the renewal office, as such, evidence of this witness is not helpful to the case of the Opposite Party-II that the licence of the deceased was expired in 1997 itself and was not holding any valid driving licence at the time of accident. In these circumstances, this Court is of the view that the renewal endorsements on Ex. A-6 can be taken as true and thereby it can be safely held that as per Ex. A-6 the deceased was holding valid driving licence as on the date of accident.
15. Coming to the next contention that there was no employee and employer relationship between the deceased and Opposite Party-I, no doubt, the applicants have not furnished any documentary evidence to prove that the deceased was working under Opposite Party-I and he (employer) was not examined to prove the said fact. However, the case of the applicants is that the deceased was working under Opposite Party - I and died during the course of employment and that applicant No. 1, who is wife of the deceased, was examined as AW.1 and deposed that her husband was working under Opposite Party-I. Though the employer of the deceased, who is Opposite Party - I, is not examined, it is not fatal to the case of the applicants since he being a party to the present proceedings failed to make his appearance. Apart from that, since at the time of accident the deceased was driving the mini lorry belonging to Opposite Party - I by holding a valid driving licence as found above, it is evident from the accident itself, in which he died, that he was working under Opposite Party-I and the same establishes the case of the applicants. Therefore, this Court is of the view that the learned Commissioner rightly held that the deceased was working under Opposite Party - I as driver on the mini lorry that involved in the accident. Both the points are accordingly answered.
16. For the aforesaid reasons, this Court is of the view that there are no grounds to interfere with the impugned judgment, as such, the appeal is liable to be dismissed. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs.
