IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE NINETEENTH DAY OF SEPTEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.485 of 2007 Between: The United India Insurance Company Limited, Represented by its Branch Manager, Masab Tank, Hyderabad. .. Appellant AND Banoth Jyothi and others .. Respondents JUDGMENT: This appeal is directed against the award by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Nalgonda in W.C.No.186 of 2005 (F), dated 17-01-2007. Banoth Ravi was claimed to be working as a cleaner on milk tanker No.AP-09-X-0919 owned by the 1st respondent to the case before the Commissioner while the 2nd respondent in the said case was claimed to be the insurer of the milk tanker. Banoth Ravi was claimed to be travelling in the milk tanker driven by Kasarla Laxminarayana on 4-4-2005 on the instructions of the lorry owner for unloading milk at Hyderabad and on the return journey near Andole Maisamma temple on the outskirts of Malkapuram village, the driver was claimed to have instructed the cleaner to check up the air in the tyres of the vehicle. It was claimed that when Banoth Ravi was checking the air in the tyres, an unknown vehicle from Hyderabad side, driven rashly and negligently at high speed, dashed him causing grievous injuries on his head and all over the body. Laxminarayana, the driver was claimed to have shifted Ravi to Osmania General Hospital, Hyderabad, where he succumbed to injuries on 10-04-2005 at 12.00 noon. Choutuppal police registered Crime No.56 of 2005 on the report of the father of Ravi and Ravi aged 21 years was claimed to be contributing his earnings of Rs.3,000/- per month as salary and Rs.50/- per day as batta to his wife, infant daughter, aged one year and parents, who approached the Commissioner for Workmen’s Compensation for a compensation of Rs.4,00,000/- from the owner and insurer of the milk tanker. The owner of the milk tanker remained ex parte before the Tribunal, while the insurer denied all the allegations of the claimants and put the claimants to strict proof of their allegations. The insurer contended that the compensation claimed is excessive in any view and the claim be, hence, negatived. The Commissioner in the impugned award considered the issues as to whether the deceased was a workman within the meaning of the statute and died during the course of his employment and what were his monthly wages and age, the entitlement of the applicants to compensation and the extent of the same were also considered. During the enquiry, the Commissioner examined PW.1 and marked Exs.A.1 to A.4, B.1 and B.2. In the impugned award/order, the Commissioner noted that PW.1, the wife of the deceased, denied all the suggestions made on behalf of the insurer in denial of the factual allegations in the claim petition and further noted that from Exs.A.1 to A.4, First Information Report, inquest report, Post Mortem report and final report, it is seen that the deceased Ravi working under the 1st respondent died during the course of employment, while discharging his duty as a cleaner. The Commissioner referred to Ex.B.2-Salary certificate produced by the insurer showing the monthly salary to be Rs.1500/- and following Oriental Insurance Company Limited v. Koti Reddy [2000 (2) LLJ 552 (AP)] took the minimum wages fixed for a cleaner employed in public motor transport as on the date of the accident as the basis for assessing the compensation. On such minimum wages of Rs.2,429/- and the age of the deceased at 21 years, the Commissioner took the age factor as 222.71 and fixed the compensation at 50% of the wages at Rs.2,70,481/-. As the ownership of the vehicle with the 1st respondent and valid insurance with the 2nd respondent were probablised by Ex.B.1-copy of the insurance policy, the compensation was directed to be paid jointly and severally by both respondents within 30 days from the date of receipt of the order and in default, interest was directed to be paid at 9% p.a. from the date of claim till realization. The insurer challenged the said award/order in this appeal contending that the deceased was not in the employment on the milk tanker and the vehicle was involved in an accident at 5.30 A.M. on the same day resulting in the death of its driver due to which the alleged incident was impossible. The appellant also contended that the employer was in collusion with the claimants and Ex.B.2 disclosed the deceased to be an employee of Durga Transports, the connection of the 1st respondent with which is uninformed. The appellant also contended that the alleged death due to the rash and negligent diriving of an unknown lorry but not due to the use of the insured vehicle was not the subject of any report to the police till after the death on 10-04-2005 though the accident was on 04-04-2005. The employer and employee relationship or the death in the course of employment not being proved and fraud having been played against the insurer, the insurer desired the impugned award/order to be reversed. Sri E. Venu Gopal Reddy, learned counsel for the appellant- insurer and Sri S. Bhuma Goud, learned counsel for the claimants/ respondents 1 to 4 are heard and the 5th respondent/owner of the milk tanker remained unrepresented before this Court. The point for consideration is whether any question of law is involved in the appeal calling for interference with the impugned award/order of the Commissioner for Workemen’s Compensation? The relationship of the claimants, the wife, infant son and the parents of the deceased Banoth Ravi was spoken to by the wife as PW.1 before the Commissioner on oath and is not contradicted. Though it is true that the First Information Report was registered on the complaint of the father of the deceased only on 11-04-2005 after the death of the deceased due to the injuries suffered in the accident on 4-4-2005, the earliest version shows that the father/ the family came to know about the admission of the deceased in the Osmania General Hospital, Hyderabad only on being sent word by the driver subsequently and therefore, the father/family could not have reported about the incident soon after the incident. While it is not known as to whether there was any information to the police on the admission of Banoth Ravi in the Osmania General Hospital from the hospital itself, which would have been the normal course in such a medico legal case, Ex.A.3- Post Mortem report shows that the death was attributed to the head injury which by its very nature could not be self-inflected. In an independent inquest conducted on 10-04-2005, the versions of the father, wife and the driver of the milk tanker were available with the mediators, on which they recorded the incident in the same manner as stated in Ex.A.1-First Information Report. The inquest mediators opined the said allegations to be probable. Ex.A.4-copy of the final report filed by the police treating the case as undetected only stated about the failure of all possible efforts made to trace the vehicle involved but did not throw any doubt on the happening of the accident on 4-4-2005 as alleged, ultimately leading to the death of Banoth Ravi. During the course of cross- examination of PW.1 before the Commissioner, it was suggested that the deceased did not die during the course of and out of his employment, but not that the accident itself could not happen in the manner alleged. There was no reference to the milk tanker AP-09-X-0919 being involved in any incident in which its driver died at 5.30 A.M. on the same day, in the evidence before the Commissioner. Nor has been any such material placed before this Court to suggest the physical impossibility of occurring of the accident as alleged in view of any such prior incident involving the death of the driver of the same vehicle. The evidence of PW.1 on oath before the Commissioner corroborated by Exs.A.1 to A.4 is accepted as probablising the employment of Banoth Ravi on the milk tanker and his death during the course of and out of his employment in the absence of contrary evidence for either respondent and the same cannot be considered unreasonable or baseless in the appeal. Ex.B.1-insurance policy shows that premium was paid for two employees and the risk of the deceased can be considered to have been covered by the said policy. The main issue raised in the appeal is the inference to be drawn from Ex.B.2-salary certificate issued by the 1st respondent on the letter head of Sri Durga Transports. It is seen from Exs.B.1 and B.2 read together that the address of Sri Durga Transports specified in Ex.B.2 and the address of the 1st respondent specified in Ex.B.1-insurance policy are one and the same. The 1st respondent specified in Ex.B.2 that he was the lorry owner of the milk tanker in question and that the deceased worked as cleaner on his lorry from 2004 January to 2005 till he met with the accident. Ex.B.2 was obtained by the insurer itself to show the probable monthly salary of the deceased to be Rs.1500/- and though the 1st respondent stated the lorry to be his and he to be the lorry owner in Ex.B.2, no clarification about the inter se relationship between the 1st respondent and Sri Durga Transports was attempted to be made in Ex.B.2 itself. While it is not known whether Sri Durga Transports is a proprietary concern or a distinct legal entity or whether the 1st respondent is running his transport business under the name and style of Sri Durga Transports, it also cannot be inferred from Ex.B.2 that the employment of the deceased is covered by the Motor Transport Workers Act, 1961 requiring any such employment to be as prescribed and any such employment to be recorded as prescribed. The statute applies to every motor transport undertaking employing five or more motor transport workers and it is not known whether Sri Durga Transports or the 1st respondent was employing the minimum or more number of workers to be governed by the said statute. The controversy as to on whom the burden of proving the connection or the absence of it between Sri Durga Transports and the 1st respondent lies apart, the fact remains that there was no specific pleading before the Commissioner about the milk tanker belonging to any distinct legal entity named Sri Durga Transports and not the 1st respondent and Ex.B.1-insurance policy also does not show the milk tanker to be belonging to any such different legal entity than the 1st respondent. If it is only a proprietary concern, the rights and liabilities of the 1st respondent will have no change and when the claimants probablised by the evidence on record that the 1st respondent was the owner and the deceased Ravi was his employee on the milk tanker in question, who died during the course of his employment, it is for the contesting respondents to prove any disentitlement of the claimants to any compensation on the ground of the milk tanker belonging to a different legal entity but not the 1st respondent. The insurer who produced Ex.B.2- certificate made no further effort in this direction and therefore, it cannot be concluded by reappreciation of the factual questions involved in the appeal that the claimants became disentitled to compensation on any such ground. Sri E. Venu Gopal Reddy, learned counsel for the appellant desired that the matter may be remanded for enquiring about this aspect by the Commissioner, but any such remand may not be justified at this distance of time, more so, when the alleged collusion between the 1st respondent and the claimants is not probablised by any material on record and when notwithstanding the delay in registering the First Information Report by the concerned police, the death of the deceased Ravi in the accident has been probablised in all respects with the death itself being an undeniable fact and in the absence of any definite material to show that the deceased Ravi was an employee of a distinct legal entity by name Sri Durga Transports. The appeal cannot be, therefore, considered to involve any substantial question of law and the questions of fact sought to be raised cannot be considered to amount to raising any legal issues. Even on the facts, the reasoning of the learned Commissioner cannot be considered perverse or baseless worth interference, and hence, the appeal should fail. Accordingly, the appeal is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 19-09-2011 Ksn