IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.3850 of 2004 Between: Shaik Sharif Bee and 5 others .. Appellant AND M. Chinna Hosanna and another .. Respondents JUDGMENT: This appeal is directed against the order of the Commissioner for Workmen’s Compensation, Kurnool, dated 21- 11-2000 in W.C. Case No.29 of 1999. Shaik Khaja Miah was claimed to be working as a Hamali under the first Opposite Party on his tractor and trailer, which were insured with the second Opposite Party. The accident was claimed to have occurred arising out of and in the course of employment of Shaik Khaja Miah on 22-7-1997 in which he died. His wife, claiming that he was earning Rs.2,000/- per month as wages at the age of 28 years, claimed a compensation of Rs.2,00,000/-. The first Opposite Party admitted the employment, wages and the accident as alleged, while the second Opposite Party- insurer denied the same. It also denied either the employment of the deceased as Hamali or his death during the accident in the course of his employment. The Commissioner for Workmen’s Compensation considered whether the deceased was a workman, who died in an accident arising out of and in the course of employment and the age, wages, amount of compensation and the liability to pay compensation in the impugned order after examining AWs.1 and 2 and RWs.1 and 2 and marking Exs.A.1 to A.3 and B.1 to B.3. The Commissioner, after referring to the evidence on record, was of the opinion that while AW.2 claimed the deceased to be in the tractor-trailer, Ex.A.1-First Information Report alleged that the deceased died when the tractor-trailer turned turtle while being reversed by himself. The Commissioner also referred to the inquest panchanama referring to the rash and negligent driving by the deceased himself being the cause for the accident and hence, the Commissioner was of the opinion that the deceased driving the vehicle at the time of accident was not a Hamali as mentioned in the claim. Hence, he dismissed the claim. The claimant along with her five minor children preferred the present appeal contending that the conclusion of the Commissioner about the deceased driving the tractor on that day was incorrect and he was only working as Hamali on the tractor at the relevant time. The deceased was covered by the policy of insurance and the appellants ought to have been compensated to the extent claimed. Claiming that the dependence on the opinion of the inquest panchayatdars for refusing to treat the deceased as Hamali on the tractor and not enforcing the liability on the insurance policy are the substantial questions of law, the appellants desired the compensation to be awarded as claimed. Sri K. Vijay Kumar Reddy, learned counsel for the appellants and Smt. N. Ayesha, learned standing counsel for the 2nd respondent-insurer are heard and none entered appearance before this Court on behalf of the owner of the tractor/the 1st respondent. The substantial question involved is about the perversity of the findings of the learned Commissioner in opposition to the broad human probabilities arising out of the evidence on record before him. The claim before the Commissioner stated the deceased to be working as Hamali on the tractor with a load of Bengal gram and that when the tractor was suddenly moved by the driver, it dashed against the deceased, who died. The First Information Report-Ex.A.1/B.2 registered on the report of the father of the deceased was as though the deceased purchased the tractor by himself and was driving the tractor in high speed negligently when the accident occurred and he died on falling under the tractor. The inquest report Ex.A.2/B.3 recorded the opinion of the inquest panchayatdars on the information furnished by the eye-witness and the relations of the deceased that the tractor turned turtle while being reversed by the deceased. While the insurance policy- Ex.B.1 covered one driver and five Hamalies, it is the inconsistency in the versions before the Commissioner that led him to believe that the deceased could not have been considered as a Hamali. The wife of the deceased as AW.1 was specific that he was travelling in the tractor on that day as Hamali in connection with the work and she denied either her husband purchasing the tractor or her husband driving vehicle at the relevant time. However, L. Krishna Reddy, examined as AW.2 as an eye-witness, who was also referred to in the inquest report as such, claimed that the deceased was in the trailer when the driver was taking reverse of the vehicle and met with the accident. Though he did not report about the incident to the police, his presence was corroborated by the independent Inquest Panchanama and RW.1 examined on behalf of the insurer only tried to rely on the discrepancies in the documents, but obviously, he was unaware who informed about the accident to the father of the deceased or the result of final investigation by the police. While he was not an eye-witness, the owner of the tractor examined as RW.2 was positive that he sent his tractor with the deceased working as Hamali in the tractor on that day for the work of the party, who engaged the vehicle and that his son Venkataswamy was the driver of the vehicle. He stated that he was paying Rs.100/- per day to the deceased working as Hamali since one year prior to the accident. The parties did not place before the Commissioner any other evidence. For making the claim under the Workmen’s Compensation Act, three acknowledged tests have to be satisfied, the first being whether the employee was in fact employed on duties at the time of accident, 2) whether the accident occurred at the place of performance of his duties, and 3) whether the immediate act which led to accident is not so remote from the sphere of his duties to be regarded as something foreign. If the three tests have positive answers, the employer’s liability to compensate and if employer’s liability is covered by insurance, the insurer’s liability to indemnify have to be upheld in terms of the calculation to be made as per the statutory provisions concerning the quantum of compensation. Though the father claimed that the tractor was purchased by the deceased, admittedly there was no transfer of ownership of the tractor in favour of the deceased and the first Opposite Party to the claim, who was the registered owner at the relevant time, stated on oath before the Commissioner that he was the owner under whom the deceased was working as Hamali when he died on the tractor to disbelieve which claim there is no reason. The claim of the appellants that the deceased went on that day on the tractor only as Hamali was corroborated by the evidence of the owner of the vehicle as RW.2 and the evidence of RW.1 cannot be considered to disprove the claims of AWs.1 and 2 and RW.2, when he was not an eye-witness and when he was not a party to any of the documents on which he was relying on. The Inquest report is a hear say version though by independent inquest panchayatdars and if AW.2 were to be relied on in conjunction with the evidence of RW.2, the deceased was on the vehicle only in his capacity as Hamali and but nothing else to entitle his dependents to claim the compensation. Even if he was reversing the tractor at the relevant time when it turned turtle resulting in death of the deceased, the First Information Report itself explains that the driver went for lunch when the tractor was kept at the bus stand and it may be that the deceased might have been compelled to reverse the tractor to place it in a position not obstructing anybody or anything else at the bus stand. Any attempt by the deceased person as Hamali on the tractor in the course of his employment to place the tractor and trailer at any correct place cannot be considered to be an act totally dissociated from the employment of the deceased. If any act of reversing the tractor, which according to one version was the immediate act that led to the accident is not so remote from the sphere of duties as Hamali on the tractor and cannot be considered foreign to his employment, then the accident has to be considered as arising out of and in the course of employment of the deceased. As per the version of the owner and eye-witness, the deceased was employed on duties at the time of the accident and the accident occurred at the place of performance of his duties. The Workmen’s Compensation Act, 1923 is a beneficial legislation to avoid any destitution of the workmen or their dependents in case of adverse consequences in accidents arising out of and in the course of employment of the workmen. The provisions have to be construed liberally in favour of the claimants and denial of the claim on the basis of discrepancies, which are explicable, is not in tune with the spirit of the statutory mandate as interpreted by the precedents. While the insurance policy admittedly covers one driver and five Hamalies, whether the deceased was in his capacity as driver or as Hamali on the tractor, the insurer cannot deny its liability and under the circumstances, it has to be considered that it was probablised that the deceased was in the vehicle in the course of his employment as Hamali and whether he was in the trailer or was reversing the vehicle, he cannot be considered to have indulged in any act foreign to his employment. The Commissioner should, therefore, assess and grant compensation under the statute to those entitled in accordance with law, but as he did not undertake any such exercise in the impugned order, the matter, therefore, has to be remitted back to the Commissioner for such an exercise. In the result, the order dated 21-11-2000 in W.C.No.29 of 1999 on the file of the Commissioner for Workmen’s Compensation, Kurnool, is set aside and it is declared that the legal representatives/ dependants of the deceased Shaik Khaja Miah are entitled to compensation under the Workmen’s Compensation Act, 1923, in consequence of his death in an accident arising out of and in the course of his employment and the Commissioner for Workmen’s Compensation, Kurnool, shall assess and grant such compensation to those entitled in accordance with law after giving every reasonable opportunity of hearing to the parties in this regard. The appeal is allowed accordingly without costs. In view of the dependents/legal representatives of the deceased Shaik Khaja Miah being deprived of any compensation for so long, the Commissioner for Workmen’s Compensation shall pass appropriate orders on merits in the W.C. Case within a period of three (3) months from the date of receipt of this order. _____________________ G. BHAVANI PRASAD, J Date: 17-02-2011 Ksn