IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD Thursday, the 30th day of September, Two thousand and ten. Present: The Hon’ble Sri Justice P. Swaroop Reddy C.M.A.Nos.215 & 217 of 2004 Between: United India Insurance Co. Ltd. …Appellant/ Opposite Party No.2 And Smt. Ch. Kamalamma and others ….Respondents/ Applicants PSR, J. C.M.A.Nos.215 & 217 of 2004 Common Judgment Both these appeals are filed aggrieved by the order passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-III, Hyderabad in W.C.Nos. 82 and 83 of 2002. As both these appeals arise out of the very same incident that occurred on 27.8.2000, wherein both the deceased herein have demised, these two appeals are heard together and are being disposed of by this common judgment. For the sake of convenience the facts stated in C.M.A.No. 217 of 2004 (W.C.No.83 of 2002) are taken into consideration and the parties herein are referred to as they are arrayed before the lower authority. 2. The facts in C.M.A.No. 217 of 2004 (W.C.No.83 of 2002) are as follows: Applicant Nos. 1 to 3, are the wife, father and mother of the deceased, Redya Naik-the workman. First respondent is the employer and the second respondent is the insurer of the subject vehicle. According to the applicants, the deceased was a workman under the first respondent on DCM van bearing registration No. AP- 13-T-7365 for loading and unloading of house hold goods and for transporting of the same. On 27.8.2000 at about 2-00 PM, the deceased was taking out TV antenna from the house situated at Flat No.8, II floor, Creative Complex, Kamalanagar, Hyderabad. During that process the TV antenna came into contact with a live electric wire, as a result of which the deceased herein and another Cooli, Ch. Pochaiah (W.C.No. 82 of 2002 (CMA.No.215 of 2004) suffered electric shock and they were shifted to Gandhi Hospital for treatment where they died on 2.9.2000. 3) The Police Kushaiguda registered a case in Cr.No.266 of 2000 about the incident. According to the applicant, the deceased was earning Rs.100-00 per day. He was aged 35 years. The impugned vehicle was insured with the second respondent-the appellant herein. The applicants claimed compensation of Rs.2.50 Lakhs. 4. The present appellant filed counter before the lower authority denying the allegations made in the claim petition and further contending that the appellant is not liable for the compensation and the compensation claimed is on high side. 5. On behalf of the applicants, the first applicant was examined as AW-1 and Exs A-1 to A-12 were marked; on behalf of the Opposite Parties RW-1 was examined and Exs R-1 to R-8 were marked and on behalf of the Commissioner CW-1 was examined and Ex C-1 was marked. 6. RW-1, Assistant Divisional Manager of the Appellant stated that the deceased, Redya Nayak and others were engaged by one Mohan Krishnaiah for loading and unloading house hold articles to his new house at AS Rao Nagar. He himself engaged the lorry for transportation of house hold articles; that there was no employee and employer relationship between the first respondent and the deceased. He filed Ex R-1 final report; Ex R-2 case diary part-I; Ex R-3 to R-7 statements of the witnesses. 7. The first opposite party was summoned to give evidence and was examined as CW-1. According to him on 27.8.2000 his vehicle bearing No. AP-28-T-7365 was hired for transporting of house hold articles from Kamalanagar to Sainikpuri agreeing to pay Rs.700-00 per trip and Rs.100-00 per each labourer. He agreed for transportation of the same on payment of hire and labour charges. He engaged the labour on the lorry for loading and unloading. 8. On the basis of the above evidence, the learned Commissioner found that the deceased was employed by the first respondent, owner of the lorry; there was employee and employer relationship and as the vehicle was insured with the second respondent (the present appellant) the insurance company is liable. Questioning the order of the learned Commissioner, the present appeal is filed. 9. The contention of the appellant is that the deceased was not employed by the first respondent. Ex A-1 – the first information report and Ex A-9 Copy of section alteration report would reveal the actual version, which shows that one Taduri Bikshapathi, driver of the vehicle lodged the complaint stating that the Van was engaged by one Mohana Krishnaiah for loading and unloading of house hold articles; the evidence of CW-1 ought not to have been accepted by the Commissioner, as obviously he was not present and non- examination of the driver of the vehicle and co-workers is fatal for the applicants etc. 10. The point that arises for consideration is whether there are any grounds for allowing the appeals? 11. The main question is whether the deceased and the first respondent, the owner of the vehicle were having employee and employer relationship. The evidence of RW-1, the Assistant Divisional Manager of the appellant is that he learnt that the deceased and others were engaged by the owner of the goods, Mohana Krishnaiah, who engaged the van and that there was employee and employer relationship between the owner of the van and the deceased. In his cross examination he accepted that the deceased was engaged as a loabourer for loading and unloading of the goods in the vehicle owned by the first respondent; that there was valid insurance; these labourers were covered under the insurance policy. He also accepted that both the deceased were engaged for the purpose of loading and unloading on the said vehicle. He also admitted that the death of both the deceased was caused while performing the work of the first respondent on the van. He even accepted that the dependents of the deceased are entitled for compensation, as the deceased were engaged as coolies on the van. The evidence of CW-1 is that on the date of the accident i.e., 27.8.2000 he was the owner of the vehicle. He further stated that house owner Mohana Krishnaiah asked him to shift his house hold articles and offered to pay transportation charges including the charges for labour. That he (CW-1) engaged labour for loading and unloading. The appellant-insurance company wanted to rely on Exs R-3 to R-7, the statements of the witnesses recorded by the Police during the course of investigation, which, in fact, are not admissible, as the investigating officer was not examined to say that he has recorded the statements, further the value that can be attached to such statements is nothing and they can be used only for contradiction or corroboration. These statements are not put to the relevant witnesses also. Apart from that RW-1, in his evidence, stated that the present appellant has not taken any steps to verify whether there was any employee and employer relationship between the owner of the lorry and the deceased-workmen. The appellant simply wanted to rely on the statements Ex R-3 to R-7, which cannot be relied on at all. 12. Thus, the evidence of AW-1 and CW-1 shows that both the deceased were employed on the lorry by CW-1. Even the evidence of RW-1 shows that no material is filed by him (RW-1) to say that there was no employee and employer relationship between the deceased-workmen and the first respondent, the owner of the vehicle. 13. Coming to the question of quantum of compensation awarded in C.M.A.No. 217 of 2004, the amount of Rs.1,69,841.00, in all, cannot be said to be on higher side, as the deceased was aged 35 years. 14. C.M.A.No.215 of 2004: In this case the deceased Pochaiah, was aged 30 years and he was engaged for loading and unloading of the house hold articles along with the deceased, Redya Naik (CMA.No.217 of 2004). In this case, the learned Commissioner awarded an amount of Rs.1,80,013-00, in all, it cannot be held that the compensation awarded in this appeal also is on high side. 15. In the circumstances, I see no merits in both the appeals and they are accordingly dismissed. No costs. _______________________ P. SWAROOP REDDY, J. September 30, 2010. *BVS