THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL MISCELLANEOUS APPEAL No.89 OF 2005 & CROSS-OBJECTIONS (SR) No.22348 of 2006 DATED: 12-11-2009 Between: The United India Insurance Co.Ltd., Rep. by its Assistant Divisional Manager, K.S.Murary, Hyderabad. ..... APPELLANT And Rampe Laxmi & 6 others. .....RESPONDENTS JUDGMENT: This appeal is directed against the order, dated 04-05-2004, in W.C.No.114 of 2003 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III, Hyderabad, wherein the claim of the respondents 1 to 5 herein was allowed in part awarding compensation of Rs.2,84,345/-. 2. Heard learned counsel appearing for the appellant and the learned counsel appearing for the respondents. Perused the record. 3. Respondents 1 to 5 filed the claim application seeking compensation of Rs.4,00,000/- on account of the death of the deceased-Ramulu, who was employed by the 7th respondent herein as driver of the auto bearing No.AP 11T 2022 and died in a motor vehicle accident that occurred on 25-08-2003. 4. According to the claimants, on that day, the deceased was proceeding in the auto loaded with water cans towards Malkajgiri and after reaching South Lalaguda Railway quarter, a lorry came in the opposite direction and in order to avoid head on collision, the deceased swerved and hit a stone wall of the Railway quarter resulting in multiple injuries including the head injury and died subsequently. The claimants further claimed that the deceased was earning Rs.4000/- per month as salary besides Rs.20/- as batta per day and that he was aged 36 years by the date of the accident. A case in Cr.No.131 of 2003 was registered by the Lalaguda police. 5. 7th respondent herein, owner of the auto, remained ex parte. Appellant herein filed a counter opposing the claim and denying the liability to pay compensation. 6. In support of their claim, P.Ws.1 and 2 were examined and Exs.A1 to A5 were marked. On behalf of the appellant-insurer R.W.1 was examined and Exs.B1 and B2 were marked. 7. On a consideration of the evidence available on record, the learned Commissioner held that the deceased was employed by the 7th respondent herein as a driver. The learned Commissioner further held that the claimants are entitled for a total compensation of Rs.2,84,345/- by taking the wages of the deceased at a statutory minimum of Rs.2370/-. Applying the suitable multiplying factor applicable to the deceased, who was aged 38 years, the learned Commissioner fastened the joint and several liability on the owner of the vehicle and also the appellant-insurer. Aggrieved by the same, the insurer filed the present appeal. 8. Learned counsel appearing for the appellant would mainly contend that there was no employer and employee relationship between the 7th respondent and the deceased. He would further submit that the vehicle involved in the accident was a public transport vehicle and the learned Commissioner has erred in treating the same as a private transport vehicle and awarding higher amount of compensation at Rs.2,83,345/- by taking higher rate of wages as against Rs.2,33,538/- which is payable in case of the deceased being employed by public transport vehicle. 9. Though the claimants have not filed any certificate of employment, as such, P.W.2-Joint Secretary of the auto drivers’ Union testified that the deceased was an auto driver and was member of ‘Pragathiseela Auto Karmika Union’ since 2002. The investigation report-Ex.B2 also indicates that the deceased was auto driver. The owner of the vehicle did not dispute the employment of the deceased by him. Under those circumstances, the learned Commissioner has rightly held that the deceased was employed as auto driver by the 7th respondent-owner of the vehicle and the accident occurred during the course of such employment. The deceased therefore answers the description of workman under the provisions of the Workmen’s Compensation Act, 1923 ( for brevity, ‘the Act’). The claimants being the wife, children and parents of the deceased, are entitled to claim the compensation under the provisions of the Act. 10. As seen from the inquest report-Ex.A2, the deceased was aged 38 years. Though the claimants stated that the deceased was earning Rs.4000/- per month as salary they have not filed any certificate to that effect. In the absence of such documentary evidence the learned Commissioner has taken the minimum wages payable to the driver at Rs.2370/- and applied the suitable multiplying factor 189.56 and estimated the compensation under the provisions of the Act at Rs.2,84,345/-. There is nothing on record to show that the vehicle was a public transport vehicle. 11. The evidence on record establishes that the deceased was employed by the 7th respondent for plying the auto and transporting the water cans to different customers. Thus, the employment of the deceased with the 7th respondent was in connection with the private business of the 7th respondent carried out with the aid of his private auto. Simply because the water cans are supplied to different customers, who are the members of the public, the vehicle does not become public transporting vehicle nor the nature of employment would become public employment. The deceased was therefore employed by the 7th respondent on a private vehicle in a private capacity. The contention of the learned counsel for the appellant that the deceased was working under a public transport system and the wages are taken at lesser rate and the compensation payable would work out to Rs.2,36,538/- only, is untenable. 12. Learned counsel appearing for the appellant would contend that the deceased was not having any valid driving licence and therefore the appellant is not liable to pay the compensation. The driving licence of the deceased was not produced by the claimants to show that he was having valid driving licence at the time of the accident. There is nothing on record to show that the deceased was having a valid licence at the time of the accident. 13. Under those circumstances, it is considered that the amount of compensation awarded by the learned Commissioner shall be paid by the appellant-insurer and the same may be recovered from the owner of the vehicle so that the claimants, who are poor and innocent victims of the accident, are not put to any hardship. 14. The claimants filed cross objections seeking payment of interest for the amount of compensation. It is not disputed that the amount as awarded by the learned Commissioner has been deposited by the appellant-insurer within the time. The question of paying interest does not therefore arise. The contention of the cross objectors that the learned Commissioner ought to have taken the wages of the deceased at Rs.4000/- per month, as claimed, is also untenable as the claimants have not produced any certificate or any other document to show that the deceased was paid the salary of Rs.4000/- per month. In the absence of any such evidence, the learned Commissioner was justified in taking the minimum wage payable to the driver while estimating the quantum of compensation. There are absolutely no merits in the cross objections. 15. In the result, subject to the liberty given to the appellant- insurer to recover the amount of compensation from the owner of the vehicle, as stated above, in terms of “ORIENTAL INSURANCE CO.LTD. V. NANJAPPAN AND OTHERS[1]’, the appeal is disposed of and the cross-objections are dismissed. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 12th November, 2009 Tsy [1] 2004 ACJ 721 (SC)