THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.M.A. No. 801 of 2009 Judgment: The appellant herein aggrieved by the order dated 30.08.2008 made in W.C. No.65 of 2006 on the file of the Commissioner for Workmen Compensation and Assistant Commissioner of Labour-IV, Hyderabad, filed this appeal. The brief facts of the case are as follows. The claimant is the wife of one Abdul Rehman @ Babu Miya (hereinafter referred to as ‘deceased’). The deceased was working as a driver on the auto rickshaw bearing No. AP 10U 6897 belonged to the first respondent. He was paid Rs.3500/- per month. On 07.04.2006 the deceased was driving the auto from morning to evening. While he was waiting for passengers in front of Allwyn factory, Sanathnagar at about 9.50 PM he developed chest pain and became unconscious in the auto due to restless driving and strain. The patrol mobile party of Sanathnagar found the deceased in unconscious state and shifted him to Vijaya Nursing Home, where the doctors declared him as brought dead. On the report given by one of the constables of the patrol mobile party, the police, Sanath Nagar, registered a case in Crime No.105 of 2006. The auto was insured with the second respondent-Insurance Company. Therefore, the appellant claimed compensation of Rs.4,00,000/- contending that the respondents 1 and 2 are jointly and severally liable to pay the compensation to her. The first respondent filed a counter denying the averments of the claimant that the deceased was employed under him and that the deceased died due to heart attack. It is his case that the deceased was driving the auto on hire basis. The second respondent-Insurance Company also contested the matter and denied the averments of the claimant. It is also denied that the deceased was having valid driving license to drive the auto at the time of accident and the deceased died during the course of employment. It is also contended that the death of the deceased was natural and therefore the Insurance Company is not liable to indemnify the first respondent. On behalf of the claimant, the claimant herself was examined as AW.1 and Exs.A1 to A11 were marked. On behalf of the first respondent, the first respondent himself was examined as RW.1 and on behalf of the second respondent-Insurance Company, its Branch Manager was examined as RW.2 and copy of insurance policy was marked as Ex.B1. The learned Commissioner for Workmen Compensation (hereinafter referred to as “Commissioner), on appreciation of evidence, held that there is no employee and employer relationship between the deceased and the first respondent and it also appears that the death of the deceased is natural death and in view of the same holding that the claimant is not entitled for any compensation dismissed the application. Aggrieved by the same, the present appeal has been filed by the claimant. Sri Ch. Indrasena Reddy, learned counsel for the appellant/claimant, submitted that the evidence of AW.1 who is no other than the wife of the deceased proves that the deceased was working under the first respondent and there is nothing to disbelieve her evidence. It is also his submission that since the deceased was working from morning to evening continuously there was lot of stress and strain on him and due to stress and strain the deceased died and where in case even a person suffering from heart disease is put to stress and strain and due to hazardous work if it resulted in accelerating the disease the same amounts to an accident. It is also his submission that the first respondent has in fact paid an amount of Rs.3500/- per month towards funeral expenses to AW.1 and unless the deceased was under the employment of the first respondent, he would not have paid such amount to AW.1. Learned counsel for the first respondent submits that the deceased had taken the auto of the first respondent on hire basis and every day he used to pay the agreed amount to the first respondent and since he had taken the auto on hire there was no employee and employer relationship between the deceased and the first respondent and except the evidence of AW.1 there was no evidence to show that the deceased was employee of the first respondent. While relying on the judgment reported in Plant Engineer, Nellore Thermal Station Padugu Padu v. J. Ademma[1], he submitted that since the deceased sustained a natural death the claimant is not entitled to any compensation. Learned counsel for the second respondent-Insurance Company also submitted that since the death of the deceased is natural death, the claimant is not entitled to any compensation and it is also his submission that there is no satisfactory evidence to show that the deceased was working under the first respondent. The points that arise for consideration are; (1) Whether the deceased was working under the first respondent on the date of his death? and (2) Whether the death of the deceased was natural death or as a result of stress and strain? Point No.1: AW.1 is no other than the wife of the deceased. It is her evidence that her husband was working as auto driver under the first respondent and that he was paid wages of Rs.3500/- per month. It is also her case that as there was no space to keep the said auto- rickshaw her husband used to keep the said auto-rickshaw at the residence of the first respondent. AW.1 is an illiterate woman. She cannot read and write. She denied the suggestion that the deceased used to hire the auto from the first respondent whenever he was in need of money and that he was not a driver of the first respondent. She has also denied the suggestion that there is no employee and employer relationship between her husband and the first respondent. Except giving suggestions to AW.1, nothing has been elicited in her evidence to disbelieve her version. AW.1 who is the wife of the deceased categorically deposed that the deceased was working under the first respondent on monthly wages at Rs.3500/-. The first respondent was examined as RW.1. According to RW.1, the deceased was utilizing his auto since last couple of months prior to his death. He admitted that the deceased was driving his auto on the date of death of the deceased. Of course, his case is that the deceased was not regular in his duties. According to him, the deceased had taken the vehicle on hire basis. But, admittedly, he has not produced any such agreement entered into between himself and the deceased. He has also admitted that he paid an amount of Rs.3500/- towards funeral expenses to the wife of the deceased. The evidence of AW.1 and the admission of RW.1 that he paid an amount of Rs.3500/- towards funeral expenses to the wife of the deceased reveal that the deceased was working under the first respondent. On behalf of the Insurance Company its Assistant Manager was examined as RW.2. He has also admitted that the deceased was a driver on the auto AP 10 U 6897 belonging to the first respondent. He has also admitted that they have not collected any document to show that the deceased had taken the auto of the first respondent on hire basis. Though initial burden lies on the claimant to prove that the deceased was working under the first respondent, but as discussed above, the evidence of AW.1 the wife of the deceased proves that the deceased was working under the first respondent and though the respondents have taken a specific plea that the deceased was taking the auto on hire basis and that he was not employed by the first respondent, admittedly, they have not produced any document to show that the deceased had taken the auto on hire basis. In the circumstances, the theory put forth by the respondents cannot be accepted. Point No.2: Admittedly, the deceased was found dead lying on the steering of the auto. The contents of Ex.A1 the first information report reveals that the mobile patrol party found the deceased in the auto at about 9.50 PM. Then they shifted the deceased to the hospital where the doctors informed that the deceased was brought dead to the hospital. It is argued that the deceased was not driving the auto at the time of his death. Admittedly, the deceased was the driver of the auto. Probably he might have stopped the auto when he felt chest pain and before he could get any assistance it appears that he died due to heart attack in the auto. Ex.A4 is the post-mortem report. The cause of death is due to ischemic heart disease. According to AW.1 the deceased was driving the auto since morning. Admittedly, the auto was found on the way in front of Voltas company bus stop on the road from Erragadda to Sanathnagar. The only logical presumption that can be drawn from the facts and circumstances of the case is that the deceased was driving the auto just prior to his death and the evidence of AW.1 shows that the deceased was driving the auto since morning. The deceased was aged about 45 years at the time of his death and all the circumstances reveal that due to continuous work from morning to evening the deceased might have undergone lot of stress and strain, which might have aggravated his disease. Even if it is held that he was suffering from heart disease since sometime prior to his death, stress and strain caused to the deceased might have aggravated his disease, therefore the same amounts to an accident. Now, the next point that arises for consideration is whether the deceased was having valid driving license or not and whether the first respondent engaged the deceased without verifying whether the deceased was having valid driving license or not. If it is held that the first respondent knowingly and negligently employed the deceased knowing very well that he had no valid driving license, then the Insurance Company can escape from its liability. But, according to RW.1 he had enquired with the deceased and that the deceased informed that he was having valid driving license. Coming to the evidence of RW.2, who is the Assistant Manager of the Insurance Company, he deposed that the auto was insured with the Insurance Company during the relevant period, but the deceased was not having valid driving license on the date of the accident. According to him, the terms and conditions of the policy show that the person entitled to drive includes any person including the insured provided that the person driving holds an effective and valid driving license to drive the category of vehicle insured thereunder at the time of accident and is not disqualified from holding or obtaining such a license. According to RW.2, the Insurance Company got enquired into the matter by appointing an enquiry officer and the enquiry officer after making enquiry submitted a report stating that the deceased was not having valid driving license on the date of accident. Admittedly, the said enquiry officer has not been examined by the Insurance Company and the report said to have been filed by such enquiry officer has not seen the light of the day. Except the oral version of RW.2 that the deceased is not having any valid driving license on the date of accident, there is nothing on record to show that the deceased was not having valid driving license on the date of accident. Since RW.1 has categorically deposed that the deceased was having valid driving license, I am of the view that there is nothing to disbelieve the evidence of RW.1 on this aspect. Though the initial burden lies on the claimant to prove that the deceased was an employee and died during the course of employment, but when the Insurance Company takes a plea that the insured violated the terms and conditions of the policy, the burden lies on it to prove that the insured had violated the terms and conditions of the policy. It is a dispute between the insured and the insurer and the claimant being a third party cannot prove whether the insured had violated the terms and conditions of the policy or not. In this case, the Insurance Company ought to have filed the report of the enquiry officer who enquired into the matter. For non filing of such report, adverse inference has to be drawn against the Insurance Company. It is the responsibility of the Commissioner to evaluate the evidence in proper perspective and where the findings are based on assumptions and presumptions the same amounts to perverse finding and are liable to be set aside. In view of the above discussion, I hold that the order passed by the Commissioner suffers from basic infirmities and the findings of the Commissioner that the death of the deceased is natural one and that there is no relationship of employee and employer between the deceased and the first respondent appears to be perverse and are liable to be set aside. Accordingly, the appeal is allowed and the impugned order passed by the Commissioner is set aside. Post the appeal on 07.03.2011 for hearing on the point of determination of compensation. ____________________ B. Chandra Kumar, J. Date: 01.03.2011 Nsr Dated: 14.03.2011: Heard. Learned counsel for the appellant submits that the basic wage of a driver of light motor vehicle as on the date of accident is Rs.1874/- and VDA is Rs.1510/-, and accordingly, the total income of the deceased as per the wages prescribed by the Government of A.P., under the Minimum Wages Act, comes to Rs.3,384/-. As seen from the record, admittedly, the age of the deceased as on the date of accident is 45 years. Therefore, the appropriate age factor is 169.44 as per Schedule 4 of the Act. Under Section 4(1)(a) of the Act, in case of death, 50% of the last drawn wage has to be taken. Since the last drawn wage of the deceased is estimated at Rs.3,384/-, 50% thereof comes to Rs.1692/- and if the same is multiplied with the appropriate age factor 169.44, the total compensation amount comes to Rs.2,86,692/- (1692 x 169.44 = 2,86,692/-). At this stage, the learned counsel for the Insurance Company relying on the judgment of this Court in case between B. SEENAIAH AND CO., CONRACTOR, PROGRESSIVE TOWERS, HYDERABAD v. HARJAN AND OTHERS[2], submitted that the compensation falls due not from the date of accident but the starting point is on completion of one month from the date on which it fell due. The learned counsel for the claimant has relied on the judgment of the Apex Court in case between PRATAP NARAIN SINGH DEO V. SRINIWAS SABATA AND ANOTER[3], wherein the Apex Court observed as follows: “Section 3 of the Act deals with the employer’s liability for compensation. Sub-section (1) of that section provides that the employer shall be liable to pay compensation if “personal injury is caused to a workman by accident arising out of and in the course of his employment.” It was not the case of he employer that the right to compensation was taken away under sub-s. (5) of S. 3 because of the institution of a suit in a civil Court for damages, in respect of the injury, against the employer or any other person. The employer, therefore, became liable to pay the compensation as soon as the aforesaid personal injury was caused to the workmen by the accident which admittedly arose out of and in the course of the employment. It is, therefore, futile to contend that the compensation did not fall due until after the Commissioner’s order dated May 6, 1969 under S. 19. What the section provides is that if any question arises in any proceeding under the Act as to the liability of any person to pay compensation or as to the amount of duration the compensation it shall, in default of agreement, be settled by the Commissioner. There is, therefore, nothing to justify the argument that the employer’s liability to pay compensation under S. 3, in respect of the injury, was suspended until after the settlement contemplated by S. 19. The appellant was thus liable to pay compensation as soon as the aforesaid personal injury was caused to the appellant, and there is no justification for the argument to the contrary.” The Apex Court in case between ORIENTAL INSURANCE CO.LTD V. MOHD. NASIR AND ANOTHER[4] observed as follows: “Section 4-A(3), as it appears from a plain reading, is penal in nature. It, however, does not take into consideration the chargeability of interest on various other grounds including the amount which the claimant would have earned if the amount of compensation would have been determined as on the date of filing of the claim petition. Workmen Compensation Act does not prohibit grant of interest at a reasonable rate from the date of filing of the claim petition till an order is passed. Only when sub-section (3) of Section 4A would be attracted, a higher rate of interest would be payable wherefor a finding of fact as envisaged therein has to be arrived at. Only because in a given case, penalty may not be held to be leviable, by itself may not be a ground not to award reasonable interest. Interest will also payable at the rate of 7½% per annum from the date of filing of the application till the date of award. The rate of interest thereafter shall be payable in terms of the order passed by the Commissioner.” Following the above decision of the Apex Court, this Court also held in case between ORIENTAL INSRUANCE CO.LTD. V. BASHABOINA BAKKAMMA AND ANTOHER[5] that the claimants are also, however, entitled to interest at 7.5% per annum from the date of filing of claim petition till the date of award. So, in the circumstances, the starting point for computation of interest cannot be the date of the accident. However, it is clear that the claimants are entitled to interest at 7.5% per annum from the date of filing of the claim petition till the date of award. So, in this case, the claimant has filed the claim petition on 05.06.2006. Therefore, she is entitled to interest at the rate of 7.5% per annum from such date i.e., from 05.06.2006 till the date of realization. In the result, the claimant is awarded an amount of Rs.2,86,692/- and the Insurance Company is directed to pay the same with interest at 7.5% p.a., within a period of 30 days from the date of receipt of a copy of this order, failing which the claimant shall be entitled to interest at 12% p.a., there from. ______________________ Justice B.Chandra Kumar Date:14.03.2011 mrb [1] 2004(1) ALD 390 [2] 2010 (5) ALD 595 [3] 1976 (1) LLJ 235 [4] 2010 (1) ALD 74 (SC) [5] 2010 ACJ 2828