BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
FA NO.200 OF 2016 AGAINST CC NO.511 OF 2014
ON THE FILE OF DISTRICT FORUM-II, HYDERABAD
Between:
K.C.P. Projects Ltd.,
Rep. by its Senior Manager (HR),
R/o 1-2-339/1, StreetNo.6,
Gagan Mahal, Domalguda,
Himayathnagar, Hyderabad.
…Appellant/Complainant
And
1) Bajaj Allianz General Insurance Co., Ltd.,
Rep. by its Regional Manager/Head
4th Floor, North East Plaza,
Beside BMW Showroom,
Erramanzil ‘X’-Roads, Hyderabad – 82.
2) Bajaj Allianz General Insurance Co., Ltd.,
Rep. by its Chairman and Managing Director,
Office at GE Plaza, Airport Road,
Yerewada, Pune – 411 006.
…Respondents/Opposite parties
Counsel for the Appellant : Sri Nisaruddin Ahmed Jeddy
Counsel for the Respondents : Sri N.Mohan Krishna
FA NO.209 OF 2016 AGAINST CC NO.511 OF 2014
ON THE FILE OF DISTRICT FORUM-II, HYDERABAD
Between:
1) Bajaj Allianz General Insurance Co., Ltd.,
Rep. by its Regional Manager/Head
4th Floor, North East Plaza,
Beside BMW Showroom,
Erramanzil ‘X’-Roads, Hyderabad – 500 082.
2) Bajaj Allianz General Insurance Co., Ltd.,
Rep. by its Chairman and Managing Director,
Office at GE Plaza, Airport Road,
Yerewada, Pune – 411 006.
…Appellants/Opposite parties
And
K.C.P. Projects Ltd.,
Rep. by its Senior Manager (HR),
Mr.M.V.Prabhakara Rao S/o M.P.Raja Rao,
Aged 47 years, Occ: Service,
R/o 1-2-339/1, StreetNo.6,
Gagan Mahal, Domalguda,
Himayathnagar, Hyderabad.
…Respondent/Complainant
Counsel for the Appellants : Sri V.Mohan Srinivas
Counsel for the Respondent : Sri Nisaruddin Ahmed Jeddy
Coram :
Hon’ble Sri Justice B.N.Rao Nalla … President
and
Sri Patil Vithal Rao … Member
Thursday, the Twenty Nineth day of September
Two thousand Sixteen
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
1) These appeals are proposed to be disposed of by a common order in view of the appeals arising out of similar facts and circumstances obtained therein.
2) For the sake of convenience, the parties are referred to as arrayed in the complaint.
FA No.200/2016 (CC No.511/2014)
3) This is an appeal filed by the Complainant dissatisfied by the orders dated 23.06.2016 passed in C.C.No.511/2014 by the District Forum-II, Hyderabad directing the Opposite parties therein jointly and severally to pay to the Complainant the principle amount of Rs.8,23,800/-; to pay Rs.10,000/- towards compensation for mental agony and trauma; to pay costs Rs.3,000/- granting time of (30) days for compliance and on failure to comply within the stipulated time, the Ops shall pay interest @ 9% p.a. on Rs.8,23,800/- from the date of order till realization.
FA No.209/2016 (CC No.511/2014)
4) This is an appeal filed by the Opposite parties aggrieved by the orders dated 23.06.2016 passed in C.C.No.511/2014 by the District Forum-II, Hyderabad directing them jointly and severally to pay to the Complainant the principle amount of Rs.8,23,800/-; to pay Rs.10,000/- towards compensation for mental agony and trauma; to pay costs Rs.3,000/- granting time of (30) days for compliance and on failure to comply within the stipulated time, the Ops shall pay interest @ 9% p.a. on Rs.8,23,800/- from the date of order till realization.
5) The case of the complainant, in brief, is that it is dealing in construction business and appoints “workmen” to construct and complete the projects. As obligatory, to ensure every workman, it insures the workmen with insurance policy, to cover the death/disability during employment with it. For the job of construction beside Haj House, Nampally Station Road, Hyderabad for a multi-storied building for the A.P. Wakf Board, it obtained policy No.06-13-1801-2801-00000823 covering the period in between 04.02.2013 to 03.02.2014 from the Ops.
6) On 01.07.2013, at 0030 hours, one workman by name T.Venkatesh alias T.Venkatappa S/o T.Bheemappa while attending the slab work, at the above site, fell down from 3rd floor by slip of his leg and received internal injuries. Immediately, he was shifted to Jeevan Hospital by co-workmen for medical treatment, unfortunately, at about 3-15 a.m. the said person succumbed to injuries. The Police, Abids, Hyderabad registered a case to that extent. The co-workmen agitated for the same and gheroed the Site Engineer and other personnel of the Complainant demanding compensation then and there to pay Rs.8,23,800/- in the form of demand draft No.006455 dated 30.07.2013, in spite of the fact that the workmen was covered by insurance. The said amount is computed as per the letter dated 19.07.2013 issued by the Commissioner for Workmen’s compensation & Deputy Commissioner of Labour, Ranga Reddy district, Hyderabad.
7) In pursuance of the above stated policy, Complainant lodged claim for the reimbursement of Rs.8,23,800/-, since the same is paid to the legal representatives of the deceased workman T.Venkatesh alias T.Venkatappa. To the surprise of the Complainant, the Ops repudiated the claim vide e-mail dated 17.12.2013 on the ground that there is no coverage for contractor employee. Hence the complaint with a prayer to direct the Ops to pay the principal amount of Rs.8,23,800/-; to pay Rs.1.5 lakhs as compensation for the deficiency of service together with costs and any other reliefs.
8) The Opposite parties resisted the claim contending that complaint is not maintainable in pursuance of Section-19 of Workmen Compensation Act. Though it admitted the issuance of policy in question, it raised the preliminary objection that the Complainant is not a ‘consumer’ as defined under Section 2(1)(d) of the Act since it is involved in construction of projects, bridges, fly-overs, roadways, multi-storeyed complex, etc., which involves commercial motive. The deceased Venkatappa fell down from third floor, which is also a multi-storeyed building. The matter involves complicated questions of fact and law, which can be determined only by elaborate documentary evidence by a competent civil court, but not by the Fora constituted under the C.P. Act.
9) From the investigation report and police papers, it reveals that the deceased T.Venkatappa is an employee of contractor by name Shyam, at the time of alleged accident. The Ops do not have any knowledge as to why the Complainant paid the amount of Rs.8,23,800/- as compensation on behalf of the Contractor, Shyam. As per the policy exceptions, the Company shall not be liable under the policy. There is no employer-employee relationship between complainant and deceased. The Complainant failed to send all the documents required to process the claim and decide the liability.
10) The Complainant had already settled the claim before the Deputy Commissioner of Labour, Ranga Reddy and orders were passed to that effect on 19.07.2013 wherein the Ops were not made as parties. The labour Commissioner decided the liability against the Complainant basing on the documents filed therein. No document was filed before it. As such, the Forum has no jurisdiction to deal with the matter. There is no deficiency of service or unfair practice of trade on their part. Hence prayed to dismiss the complaint with costs.
11) During the course of enquiry before the District Forum, in order to prove his case, the Complainant got filed the evidence affidavit of one A.Hari Krishna, its HR Manager and Exs.A1 to A15 and on behalf of the Ops, got filed the evidence affidavit and the documents Ex.B1 and Ex.B2.
12) The District Forum after considering the material available on record, allowed the complaint bearing CC No.511/2014 by orders dated 23.06.2014, as stated, in paragraph No.1, supra.
FA NO.200/2016 :
13) Dissatisfied by the said orders, the Appellant/Complainant preferred the above appeal contending that the order of forum below (a) in awarding principal without interest is contrary to law and it failed to award interest @ 12% p.a. from the date of repudiation till realization; (b) failed to note that interest is to be paid @ 2% above bank rate from the date of default/repudiation; (c) failed to grant compensation for the gross mischief and unfair and unethical trade practices on the part of the Respondents. Hence prayed to re-visit the order and award interest @ 12% p.a. from the date of repudiation and also to enhance compensation to Rs.1.5 lakhs.
FA NO.209/2016 :
14) Aggrieved by the orders dated 23.06.2014 made in CC 511/2014, the Appellants/Opposite parties preferred the above appeal contending that the order of forum below (a) failed to appreciate the facts of the case, evidence on record and provision of law and thereby erred in allowing the complaint; (b) failed to appreciate the question of fact and law in its true perspective; (c) failed to see that the present complaint is strictly barred by limitation; (d) failed to see that it has no jurisdiction to entertain the complaint and the proper forum to seek relief was before the Commission for Workmen’s compensation. Hence prayed to allow the appeal and set aside the order dated 23.06.2016 passed in CC No.511/2014.
15) The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
16) It is not in dispute that the insured obtained the policy bearing No.06-13-1801-2801-00000823 covered by Ex.A1 for its workmen in between 04.02.2013 to 03.02.2014. It is also not in dispute that the supervisor of the insured company by name T.Venkatesh alias T.Venkatappa fell from 3rd floor while executing the slab work and sustained fatal injuries on 01.07.2013 and subsequently succumbed to injuries. It is the specific case of the insurer that the deceased T.Venkatesh alias T.Venkatappa was not the workman of the insurer, but one Contractor, by name Shyam.
17) To prove that T.Venkatesh alias T.Venkatappa is not covered by insurance, the insurer failed to file any document. The only document brought on record is Ex.B1, copy of policy schedule and Ex.B2, the copy of e-mail informing the insured that the claim is not admissible under the policy and the same stands closed at its end. A perusal of Ex.B1 shows that the policy coverage is given to following description of persons.
i) 5 No’s semi skilled (wages 10000/- per each per month)
ii) 10 No’s Un-skilled (wages 8000/- per each per month)
iii) 2 No’s skilled (wages 2000/- per each per month).
Nowhere in Ex.B1, the names of the persons insured is mentioned. Admittedly, the policy is issued in favour of M/s KCP Projects Limited, the Appellant/Complainant herein which is not in denial. To show that said the deceased was under the employment of insured, the insured exhibited A12 and A13 documents. Ex.A12 is the identity card showing the designation of the deceased as Supervisor with employee code E/KPCPL/1203. Ex.A13 are the pay roll particulars of the workmen of the insured for the period from January 2013 to May 2013. In all the pay rolls, the total earnings of the deceased were shown above Rs.8,000/-.
18) The insurer basing on the FIR Ex.A1, would contend that the deceased was under the employment of Contractor Shyam. Ex.A1 reads as follows:
“The brief facts of the case are that on 1-7-2013 at 0930 hrs received a telugu complaint from Sri K.Ramulu S/o K.Bhimaiah, age 28 yrs, R/o Narayanaguda stating that he along with his brother T.Venkatesh and other 15 members went for doing slab work at K.P.C. construction, beside Haj House, Nampally Stn., Road, while doing slab work of three floors, at about 0030 hrs his brother K.Venkatesh, age 28 yrs, fell down from 3rd floor by slipping his leg and received internal injuries. Immediately he along with his contractor Shyam shifted him to Jeevan Hospital for medical treatment, where at about 3.15 AM while undergoing treatment he died. Hence requested to take necessary action.”
A clear reading of the complaint would show that immediately on sustaining injuries by T.Venkatesh, he was shifted by the defacto-complainant along with his contractor Shyam, which mean the contractor of defacto-complainant. Nowhere in the complaint, it is stated that the deceased was under the employment of Contractor Shyam. To prove that the deceased was under the employment of Contractor Shyam, no piece of paper is brought on record by the insurer. In such a circumstance, no credence can be given to the averment of the insurer.
19) The insurer would also contend that the Fora constituted under the C.P. Act, had no jurisdiction to entertain the complaint in pursuance of Section-19 of the Workmen’s Compensation Act, 1923. Section-19 reads as follows:
“19. Reference of Commissioners: If any question arises in any proceedings under this Act as to the liability of any person to pay compensation (including any question as to whether a person injured is or is not a workman) or as to the amount of duration of compensation (including any question as to the nature or extent of disablement) the question shall in default of agreement be settled by a Commissioner. No Civil Court shall have jurisdiction to settle decided or deal with any question which is by or under this Act required to be settled decided or dealt with by a Commissioner or to enforce any liability incurred under this Act.”
In this regard, we may state that the matter is already settled by the appropriate Authority under the Act and an award is passed for payment of Rs.8,23,800/-, which was complied with vide Ex.A14. From a bare reading of the above provision, it is clear that the dispute was between the employee and employer which was settled thereof.
20) Under Ex.B1 (as also Ex.A1, replica of Ex.B1), the onus lies on the insurer to the insured sum to the insured. Admittedly, the case of deceased falls within the category of unskilled worker. The sum insured for the unskilled person is Rs.9,60,000/- and the claim made by the insured is only for Rs.8,23,800/-, which it paid before the appropriate Authority under Workmen’s Compensation Act. It is also not the case of the insurer that they are not liable to pay Rs.8,23,800/-. To discharge its liability, it failed to bring on record any piece of paper. We do not agree with the said contention of the Appellants/Opposite parties that the Forum had no jurisdiction to entertain the complaint, in view of Section 3 of the Consumer Protection Act, 1986.The plain language of Section 3 of the Act makes it clear that the remedy available is in addition to and not in derogation of the provisions of any other law for the time being in force.
21) Nextly, the Appellants/Opposite parties would contend that the insured Company is doing business with commercial motive and hence it cannot be termed as “consumer” as defined under Section 2 (1)(d) of the Act. Though the Appellant/ Complainant is carrying-on commercial activity, the purpose of obtaining the insurance to its workmen was to secure them from any untoward incidents, death or loss. By obtaining insurance to its workmen, the Appellant/Complainant is not at all dealing in any insurance business. Hence, viewed from any angle, this contention is absurd on the part of the Appellants/Opposite parties and we do not concur with the same.
22) Coming to the aspect of non-granting of interest on the principle amount is concerned, in crystal clear terms, the forum below passed an order to the effect that on failure to comply the orders within the stipulated period of (30) days, the amount of Rs.8,23,800/- shall carry interest @ 9% per annum from the date of order till realization, which does not deserve any interference.
23) For the reasons stated supra, we do not find any merits in both the appeals and accordingly dismiss the same. The point framed for consideration in paragraph No.15, supra, is answered accordingly.
24) In the result, both the appeals fail and are accordingly dismissed but in the circumstances, parties to bear their own costs.
PRESIDENT MEMBER
Dated 29.09.2016
