THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.949 of 2005 JUDGMENT This appeal is filed under Section 30 of the Workmen’s Compensation Act, 1923 (for short ‘the Act’) against an order, dated 04.07.2005, passed in W.C.No.187 of 2004 by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Hyderabad (for short ‘the Commissioner’). 2. It is stated that while K.B.Veeresh was proceeding on a lorry bearing No.AP 21 U 5449 as a labourer from Kurnool towards Hyderabad with a load of cattle feed and at about 5.30 hours, when the lorry reached the outskirts of Peddaipalli village, its driver drove it in a rash and negligent manner and dashed a parked vehicle bearing No.KA 38A 4777, due to which, K.B.Veeresh sustained grievous injuries and while undergoing treatment, he succumbed to the injuries. Thereupon, respondent Nos.1 and 2- dependants filed W.C.No.187 of 2004 before the Commissioner, claiming compensation of Rs.3,50,000/-for the death of Sri K.B.Veeresh during the course of his employment. The case was contested by the appellant-insurer. By the order under appeal, the Commissioner awarded a sum of Rs.2,60,048/- towards compensation payable by the appellant-insurer and respondent No.3-employer jointly and severally by way of demand draft, within 30 days from the date of receipt of the order, failing which the dependants are entitled to interest @9% per annum on the amount of compensation from the date of filing of the application i.e., 18.09.2004. Disputing the liability, the appellant-insurer filed the present appeal. 3. Heard the learned counsel for the appellant and the learned counsel for respondent Nos.1 and 2. 4. Learned counsel for the appellant vehemently contended that as per the proposal form for motor insurance, risk will be covered only for the two employees i.e., the driver and the cleaner of the lorry, but not the labourers engaged in the lorry and that the Commissioner ought to have taken into consideration the affidavit given by respondent No.3-owner that he has not paid any premium for labourers/coolies and as such, the appellant is not liable to pay compensation to the dependants. He further contended that no document is produced as regards the employment of the deceased on the said lorry and as such, there is no employer-employee relationship established under the Act. In support of his contention, he has drawn the attention of this Court to the judgment of the Apex Court in GOTTUMUKKALA APPALA NARASIMHA RAJU v. NATIONAL INSURANCE COMPANY LIMITED[1], wherein it was held as under: “No documentary proof to establish the contract of employment was produced. No independent witness was examined. Even as to for what purpose the tractor was being used had not been disclosed. How the accident had taken place is also not borne out from the records of the case. If the deceased, with all intent and purport, was the owner of the tractor, the claim petition under the 1988 Act might not have been maintainable. A petition under 1923 Act certainly would not lie. Only because Sections 143 and 167 of the 1988 Act refer to the provisions of the 1923 Act, the same by itself would not mean that the provisions of the 1988 Act, proprio vigore would apply in regard to a proceeding for payment under the 1923 Act. The limited applicability of the provisions of the 1988 Act, in relation to the proceedings under the 1923 Act has been discussed by this Court in the aforementioned judgments. It is thus, not possible to extend the scope and ambit of the provisions of 1988 Act to the provisions of 1923 Act save and except to the extent noticed hereinbefore. Learned counsel has also drawn the attention of this Court to the judgment of the Apex Court in UNITED INDIA INSURANCE COMPANY LIMITED v. SERJERAO AND OTHERS[2] wherein it was held as under: “So far as the question of liability regarding labourers travelling in trolleys is concerned, the matter was considered by this Court in Oriental Insurance Company Limited v. Brij Mohan ((2007) 7 SCC 56) and it was held that the Insurance Company has no liability. In view of the aforesaid two decisions of this Court, we set aside the impugned order in each case and remit the matters to the High Court to consider the matters afresh in the light of what has been stated by this Court in Yallwwa case ((2007) 6 SCC 657) and Brij Mohan Case. 5. Learned counsel for the dependants contended that under Section 4-A(3) of the Act, the dependants are entitled to interest as there is a default in payment of compensation to them within one month from the date of the order. In support of her contention, she relied on the judgment of the Apex Court in ORIENTAL INSURANCE COMPANY LIMITED v. MOHD. NASIR AND ANOTHER[3] wherein it was held as under: “Reliance has been placed on Mubasir Ahmed (2007) 2 SCC 349 ) wherein it was held: (SCC pp. 354-55 para 9) 9. Interest is payable under Section 4-A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability underSection 4-A was dealt with by this Court in Maghar Singh v. Jashwant Singh (1998) 9 SCC 134. By amending Act 30 of 1995, Section 4-A of the act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as to when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4-A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-section (2) of Section 4-A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is ‘falls due’. Significantly, legislature has not used the expression ‘from the date of accident’. Unless there is an adjudication, the question of an amount falling due does not arise”. As therein this aspect of the matter has not been considered, we are of the opinion that interest will also be 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. 6. In the instant case, A.W.1, the second respondent stated in his evidence that his deceased brother worked as a labourer and on 05.09.2004, he proceeded along with a load of cattle feed in the crime lorry and that he died in the accident during the course of his employment. Since the third respondent-owner of the crime vehicle remained ex parte in the O.P., his Notarized affidavit stating that he has not engaged any labourer on the date of accident, cannot be taken into consideration. Therefore, the contention of the learned counsel for the appellant that the deceased was not in employment at the time of accident cannot be accepted and the judgment in APPALA NARASIMHA RAJU’s case (1 supra) relied upon by the learned counsel has no application to this case since in that case the relationship of employer and employee was between the husband and the wife. 7. Insofar as the liability fastened on the appellant-insurer is concerned, RW1, the Assistant Accounts Officer of the appellant, stated in her evidence that the insurance policy was issued subject to endorsement of IMT. 39, as per which, there is a legal liability to the persons employed in connection with the operations and/or maintaining and/or loading an/or unloading of motor vehicles. Ex.D2- Insurance Policy shows that the effective date of commencement of insurance was from 08/05/2004 to 07/05/2005 subject to IMT endorsement Nos.21, 20, 39 attached to it. The accident occurred on 05.09.2004. Since the policy was in force as on the date of the accident, as per IMP endorsement No.39, the appellant-insurer is liable to pay compensation to the claimants, as rightly observed by the Commissioner. The judgment relied on by the learned counsel for the appellant in ORIENTAL INSURANCE COMPANY LIMITED’ case (2 supra) has no application to the facts of this case since in that case, the question of liability is with regard to the labourers travelling in trolleys attached to the tractor. 9. In case of default of deposit of the compensation by the appellant and the third respondent, the Commissioner awarded interest @9% on the amount of compensation awarded. The rate of interest is reduced from 9% to 7% per annum from the date of filing of the application. 10. In view of the aforesaid reasons, with the above modification, the Civil Miscellaneous Appeal is allowed in part. There shall be no order as to costs. _____________________ GHULAM MOHAMMED, J Date:26.08.2010. sj [1] 2007 ACJ 1025 [2] 2008(7) SCC 425 [3] (2009) 6 SCC 280