HONOURABLE SRI JUSTICE P. SWAROOP REDDY CIVIL MISCELLANEOUS APPEAL No.1510 OF 2004 JUDGMENT: Aggrieved of the quantum of compensation awarded in W.C. No.156 of 2003 dated 02-04-2004 by the learned Commissioner for the Workmen’s Compensation and Assistant Commissioner of Labour, Hyderabad – II, this Civil Miscellaneous Appeal is filed by the United India Insurance Company Limited, Hyderabad. 2. The appellant, insurance company, is respondent No.2 (Opposite Party No.2), respondent No.1 is the applicant, respondent Nos.2 and 3 are respondent Nos.1 and 3 (Opposite Party Nos.1 and 3) respectively in the W.C. before the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Hyderabad – II. 3. For the sake of convenience, the parties are referred to as arrayed in the W.C. 4. Applicant No.1 is wife of the deceased employee late Sri Ramulu. Her case before the Commissioner of Labour was that her husband was employed under respondent No.1 - M/s. S.S.R. Constructions as driver – cum – operator on concrete mixer lorry bearing No.AP28 – V – 958 belonging to respondent Nos.1 and 3. Whileso, on 28-09-2003 at about 10-00 pm, while the deceased was performing his duties on concrete mixer lorry at Habsiguda cross roads, Hyderabad and he was mixing chemical in the concrete mixing drum, he slipped and fell into that drum and died. A case in Crime No.461 of 2003 was registered by the police of Osmania University, Secunderabad under Section 174 Cr.P.C. and investigated into. According to the applicants, deceased was earning Rs.4,500/- per month and he was aged 31 years at the time of his death, as such, they claimed compensation of Rs.4,50,000/-. 5. Respondent Nos.1 and 3 remained ex parte and respondent No.2, insurance company, alone filed its counter taking a preliminary objection that S. Shivaraj Reddy Constructions was not made a party to the proceedings, but, ultimately, it was made as a party. It was also the contention of the insurance company that Shivaraj Reddy Constructions and M/s. S.S.R. Constructions are different entities and the deceased was working under respondent No.1, whereas the lorry on which the deceased was working at the time of accident was belonging to respondent No.3 and the lorry was insured by respondent No.3, as such, there was no relationship of employee and employer between respondent No.3 and the deceased, as such, liability for payment of compensation cannot be fixed on the insurance company alone. 6. Based on the pleadings, the following issues were framed for trial by the learned Commissioner: “1. Whether there is an employer-employee relationship between the deceased and OP1? 2. Whether the deceased sustained employment injuries and lost his life during the course of his employment? 3. Whether the OPs are liable to pay compensation? If so to what extent?” 7. On behalf of the applicants, Exs.A-1 to A-8 were marked and on behalf of the insurance company, Ex.B-1 copy of the insurance policy was marked. 8. Based on the material on record, learned Commissioner awarded a compensation of Rs.4,09,347/- to the applicants. Aggrieved of the quantum of compensation, insurance company preferred this appeal. 9. As per the grounds of appeal, the deceased was driver of the lorry bearing No.AP28 – V – 958 involved in the accident and at the time of accident, he was performing duties non-incidental to the nature of his job, as such, insurance company is not liable as the lorry that was insured was not in use but a different machine was in operation at the time of accident and the lorry alone was insured but not the machine viz., concrete mixer unit, on account of operation of which the deceased died. 10. Now the point that arises for consideration is whether there are any grounds for allowing this appeal ? 11. The insurance company did not seriously dispute the quantum of compensation awarded by the learned Commissioner. The main contention of the learned counsel for the insurance company (appellant) is that the vehicle that was insured with it by respondent No.3 was the lorry bearing No.AP28 – V – 958 alone and not the mixer unit attached to it and admittedly the deceased fell into the concrete mixing drum attached to the lorry and not on account of any activity by the lorry. 12. The contention of the learned counsel for the applicants is that the entire lorry along the with mixer unit attached to it was insured but not the lorry alone, as such, the insurance company is liable for payment of compensation jointly and severally along with the other respondents. Learned counsel brought to my notice Ex.A-7, copy of the insurance policy, which, prima facie, shows that the lorry along with the mixer unit attached to it was also insured with the insurance company. 13. Insurance Company has not adduced any oral or documentary evidence to show that the concrete mixer unit that was attached to the lorry involved in the accident was not covered by the insurance policy issued by it. Further, Ex.A-5, registration certificate of the lorry involved in the accident, also shows that what was insured with the insurance company was the lorry along with the concrete mixer unit. That being so, as admittedly the concrete mixer unit was also insured along with the lorry, insurance company cannot deny and escape from its liability to pay the compensation. Thus the contention of the insurance company that on account of the accident being caused at the time of the mixer drum that was being used, the insurance company is not liable to pay compensation, cannot be accepted. 14. Further, though there is a feeble attempt by the insurance company to say that there is no employee and employer relationship between the deceased and respondent No.3, no evidence was adduced on its behalf to show the same and on the other hand there appears to be no dispute about the deceased being driver of the lorry and at the time of accident, he was driver – cum – operator of the lorry and the mixer unit attached to it. In a case of this nature arising under the Workmen’s Compensation Act, available evidence has to be interpreted in favour of the workman and in this case there is no evidence on behalf of the insurance company. In such circumstances, the contention that there was no employee and employer relationship between the deceased and respondent No.3 cannot be accepted at all. 15. It is also contended by the learned counsel for the insurance company that M/s. S.S.R. Constructions and Shivaraj Reddy Constructions are different entities and as the vehicle belonging to Shivaraj Reddy Constructions was insured, insurance company is not liable to pay compensation. This contention also cannot be accepted as the vehicle number is clearly mentioned in Ex.A-5 registration certificate of the lorry and it is shown to be registered on the name of M/s. S.S.R. Constructions, represented by Shivaraj Reddy. 16. In all these circumstances, I see no merit in this appeal, as such, the appeal is liable to be dismissed. 17. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. ______________________ P. SWAROOP REDDY, J October 28, 2010. PV