IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.11.2008 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU C.M.A.(MD).No.1294 of 2002 and C.M.P.No.9103 of 2002 Branch Manager United India Insurance Company Ltd, 38, Anna Salai, Chennai -600 002. ... Appellant/ 2nd opposite party Vs. 1.Munusamy 2.Indirani 3.M.Vasu ... Respondents/Claimants & 1st opposite Party Appeal filed under Section 30 of the Workmen’s Compensation Act,1923 against the judgment and decree dated 05.04.2002 made in W.C.No.87 of 2001, passed by the Commissioner for Workmen’s Compensation -II (Deputy Commissioner of Labour – II), Chennai-6. For Petitioner : Mr.D.Bhaskaran For R.1 & 2 : Mr.S.Ramu J U D G M E N T This Appeal is directed against the judgment and decree dated 05.04.2002 made in W.C.No.87 of 2001, passed by the Commissioner for Workmen’s Compensation -II (Deputy Commissioner of Labour – II), Chennai. 2. The following are the allegations found in the claim petition:- (i) One Govindan, the son of the claimants, was working under the first respondent, who was a prawn merchant. The deceased used to collect the money from the retail merchants on behalf of his employer, the first respondent. On 05.03.2000, while he was riding the Suzuki Motor Cycle bearing registration No.TN20 Y 6346 belonging to the first https://hcservices.ecourts.gov.in/hcservices/ respondent, insured with the second respondent, a bullock cart was coming negligently and he, in the process of avoiding the accident, turned the motor cycle, thereby dashed against an electric post, and received head injury. The deceased was admitted to the Government Hospital, Chennai. Due to the injuries sustained, the deceased died on 06.03.2000 at 4.55 p.m. He was 22 years old at the time of death and was earning a sum of Rs.5,000/- per month from the first respondent. Hence, a sum of Rs.6,00,000/- with 18% per annum was prayed before the Commissioner for Workmen's Compensation. On appreciation of evidence, a sum of Rs.2,19,950/- was awarded by the Commissioner as compensation to be paid by the second respondent. 3. In the counter filed by the first respondent, he stated that it is true that the deceased Govindan was employed by this respondent and he used to collect the money from the retail fish merchants on his behalf and that he took the motor cycle belonging to the first respondent and he died in an accident. It is also admitted that he was earning a sum of Rs.5,000/- per month from the first respondent. Since the motor cycle was under insurance coverage, the second respondent is liable to pay the compensation to the claimants. 4. In the counter filed by the second respondent, it is alleged that it is incorrect to state that the said Govindan died during the course and out of the employment under the first respondent and that he was going to collect the money from the fish merchants for his employer. The claimants are not entitled for compensation as per the provisions of Workmen’s Compensation Act or under Section 147 Motor Vehicles Act. The person should have been employed as driver in order to get compensation, but the deceased was not employed as such, but was working as Commission Agent. Hence, the petition has to be dismissed. 5. After hearing both sides and perusing the evidence on record, the Workmen Compensation Commissioner has reached a conclusion that the deceased was working as agent under the first respondent, who died during the course and out of employment and that the second respondent is liable to pay compensation to the claimants. 6. The learned counsel for the claimants would submit that since direct evidence is available from the first respondent employer, as per the contention of the claimants, the order passed by the Workmen Commissioner need not be set aside and that it is to be confirmed. 7. Per contra, the learned counsel for the appellant insurance company would contend that even though the evidence https://hcservices.ecourts.gov.in/hcservices/ would go to show that the deceased was employed by the third respondent herein/first respondent in the claim petition, still it cannot be stated that he died during the course and out of employment and fastening the liability upon the Insurance Company is not sustainable. It is further stressed that it has not been clearly established that the deceased had gone in order to attend the duties which are incidental to, that too on account of the employment and hence, on that score also, the appellant could not be held responsible for compensation. 8. On a perusal of the records, it is seen that even though the third respondent herein was remaining ex parte before the Commissioner after filing the counter, from the allegations contained in the counter, it transpires that the deceased took the motor cycle belonging to the third respondent and was proceeding to collect money from the retail merchants on his behalf and during which, he died in the accident. It is an unshakable evidence on record. 9. Added further, the learned counsel for the appellant Insurance Company would contend that it must be shown that the deceased was driving the motor vehicle of his employer during the course of the employment at the time of accident in order to invoke the provision Section 147 of the Motor Vehicles Act and that in this case, it is not established. 10. The learned counsel for the appellant strongly placed reliance upon a decision of the Apex Court reported in 1996 ACJ 1281, Employees’ State Insurance Corporation V Francis De Costa, wherein Their Lordships have held as follows:- “27.We are of the view that in the facts of this case, it cannot be said that the injury suffered by the workman one kilometre away from the factory while he was on his way to the factory was caused by an accident arising out of and in the course of his employment’ 11. In the afore-said case, the workman was on his way to his place of employment which is one kilometre from the place of accident. It occurred at 4.15 p.m., while his duty shift was to commence at 4.30 p.m. He was going to his work in his bicycle and he was hit by a lorry belonging to his employer. In the said case, it was decided that he had not reached the place of employment at the time of accident and even though he met with an accident on the way, it could not be concluded that the injury was caused during and in the course of employment. 12. But the facts of the present case are distinguishable. Here, it is in evidence in the form of allegations in the counter of the third respondent that the deceased was working under him https://hcservices.ecourts.gov.in/hcservices/ and he rode the motor vehicle to meet the retail merchants to collect the money for his employer. 13. The learned counsel for the appellant would also draw attention of this Court to a decision rendered by this Court in 2002 ACJ 378, New India Assurance Co.Ltd Vs. A.Sharifa Bivi and Others, in which the claim of the claimants against the Insurance Company was negatived by observing that the accident happened only while the worker was discharging some other functions, no doubt, on the instructions of his employer. In such case, there can be no liability on the Insurance Company even though, the employee is entitled to maintain his claim as against his employer. 14. In the case cited supra, the facts would go to show that the driver was directed to collect the rental dues from the tenants of his employer and that accordingly, the deceased went to the workshop and after leaving the lorry, he returned to the owner's house, where he was directed to meet him in “Bombay Automobiles”. On the way to “Bombay Automobiles”, he met with an accident. This Court has held that even though he was instructed by his employer to do some work, since it was not incidental to the employment, it could not be stated that the Insurance Company is liable to pay compensation. 15. Here, the facts are otherwise. There is no contra evidence shattering the allegations in the counter filed by the third respondent to the effect that the deceased was not attending the duty connected to the employment at the time of accident. 16. In the absence of such circumstances, the irresistible conclusion would be that the Insurance Company cannot be relieved of its liability to pay compensation to the claimants. Even though the award passed by the Commissioner is bereft of necessary discussion and silent as regards legal position, still saddling liability on the Insurance Company and quantum of award are found to be proper, they need not be interfered by this Court. The award deserves to be confirmed and accordingly, it is confirmed. 17. In fine, the civil miscellaneous appeal is dismissed. Consequently, connected M.P. is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssm https://hcservices.ecourts.gov.in/hcservices/ To The (Deputy Commissioner of Labour – II), Commissioner for Workmen’s Compensation -II , Chennai-600006. VSV (CO) km/25.11. CMA.No.1294 of 2002 https://hcservices.ecourts.gov.in/hcservices/