BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.664/2011 against C.C.No.73/2010, Dist. Forum, Kadapa Y.S.R.District.
Between:
The New India Assurance Co.Ltd.,
Poddutur Town, D.No.8-83, 1st. Floor,
Gandhi Road, Kadapa Dist. ,
Rep. by its Branch Manager. …Appellant/
Opp.party
And
Sri Venkateswara Ware House,
Rep. by its Proprietor , B.Vijaya
Kumar, Bhumayapalle, Khajipet
Mandal, Kadapa Dist. …Respondent/
Complainant
Counsel for the Appellant : Smt.M.Sitha Devi
Counsel for the Respondent : M/s.S.Subramanya Reddy
QUORUM:THE HON’BLEJUSTICE SRI D.APPA RAO,PRESIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
MONDAY THE SEVENTEENTH DAY OF SEPTEMBER,
TWO THOUSAND TWELVE
Oral Order:(Per Sri S.Bhujanga Rao, Hon’ble Member)
****
This appeal is preferred against the order dt.17.2.2011 of the District Forum, Kadapa made in C.C.No.73/2010 filed by the complainant seeking direction to the opposite party to pay compensation amount of Rs.5,52,115/- together with interest at 24% p.a. from the date of maturity till the date of realisation, to pay Rs.5000/- towards costs of the complaint and to pay Rs.5000/- towards compensation for mental agony.
The appellant is the opposite party and the respondent herein is the complainant in C.C.No.73/2010.
For the sake of convenience, the parties may be described as they arrayed in the compliant.
One Thanga Narayana, S/o.Narayana and Thanga Eswaramma, W/o..Thanga Narayana were employees working as watchmen in the M/s. Sri Venkateswara Warehouse of the complainant since 2008. The Proprietor of the complainant ware house got insured the said both employees on 12.1.2009 vide policy no.61120436080100000464. On 7.5.2009 some unknown persons attacked the said two employees, who were on duty and murdered them. On a report, Khazipet police registered the same as a case in Crime no.98/2009 u/s.302, 395 & 376 of I.P.C..
The Asst. Commissioner of Labour ,Kadapa had taken the said offence on file in R.C..No.B/946/09 Dt.7.12.2009 and R.C.No.947/2009 dt.7.12.2009. The Asst. Commissioner of Labour passed an order against the employer under Minimum Wages Act and passed an award of Rs.2,84,358/- and Rs.2,65,757/- respectively against the employer. The Asst. Commissioner of Labour directed the employer to deposit the said amount within 30 days from the date of receipt of the order.
After the accident, the complainant intimated the same to the opposite party insurance company, through a letter dt.11.5.2009, by enclosing relevant documents. The complainant has also informed the opposite party insurance company on 8.12.2009 about the passing of the award by the Asst. Commissioner of Labour in W.C.Claim. The opposite party got issued a repudiation letter dt.24.2.2010 to the complainant on the ground that the deceased were working as watchmen in the warehouse and that the policy issued only for the purpose of loading and unloading operations and that the complainant violated the terms and conditions of W.C. Policy.
The complainant obtained insurance policy in favour of his employees as unskilled labour covers loading and unloading, watchmen and peon, sweeper etc.. The opposite party repudiated the genuine claim of the complainant without any basis and without application of mind. Thus there is deficiency in service on the part of the opposite party. Hence the complaint.
Resisting the claim, the opposite party insurance company filed counter/written version admitting issuance of insurance policy no.611204/36/08/01/00000464 valid from 12.1.2009 to 4.1.2010 in favour of the complainant covering the risk of two employees, for the work details of loading and unloading of food grains, at M/s.Sri Venkatewswara Ware House.
The opposite party further contended that he complainant has not filed any documentary evidence to show that both the deceased were watchmen of the godown. Infact the complainant taking advantage of the policy and murder of the deceased, created a story as if the deceased were watchmen. The order of the learned Asst. Commissioner was obtained behind their back and, as such, the same is not binding on them. Infact there is no direction to the opposite party for such deposit or liability cast on this opposite party. The complainant has not deposited the awarded amount.
The complainant is not a proper party to file the complaint as he is neither legal heir nor representative of the deceased to claim compensation. The policy does not cover the risk of watchmen and the policy covers the risk of workers in loading and unloading operations only. As such, the opposite party has rightly repudiated the claim of the complainant. There is no deficiency in service on their part. Viewed from any angle there are no merits in the complaint. Hence the complaint is liable to be dismissed.
During the course of enquiry, the complainant filed his evidence affidavit and got marked Exs.A1 to A14. On behalf of the opp.party insurance company, its Asst.Manager, M.Lakshmi Naik filed his evidence affidavit and no documents are marked on behalf of the opposite party.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum allowed the complaint in part directing the opposite party to pay Rs.5,52,115/- without interest and to pay Rs.1000/- towards mental agony and Rs.1000/- towards costs.
Aggrieved by the said order, the opposite party insurance company preferred the above appeal urging that the District Forum failed to appreciate that the policy covers the risk of labourers during the operation of loading and unloading within the godown premises and that the policy does not cover the risk of watch man working under the insured. That the District Forum ought to have seen that the watchmen murdered were not engaged in the loading and unloading of goods at the godown and the risk of watchmen was not covered under the said insurance policy. That the order of the District Forum is illegal and it is passed beyond the scope of policy coverage and the reasons given are unsound and that the District Forum failed to see that the appellant was not made a party to the proceedings before the Commissioner for Workmen and Asst. Commissioner of Labour, Kadapa and the order was passed against the respondent/complainant who was the applicant in W.C.Cases. Therefore the appeal may be allowed setting aside the impugned order of the District Forum.
We heard the counsel for both the parties and considered the entire material on record.
Now the point for consideration is whether the impugned order of the District Forum is liable to be set aside ? If so, on what grounds?
It is an admitted fact that the complainant took a policy as proprietor of M/s. Sri Venkateswara Ware House, Bhumayapalle, Kadapa District, on 12.1.2009, under policy no. 61120436080100000464. for two employees working in the godown. The two employees were Thanga Narayana and Thanga Eswaramma . Ex.A3 is the photostat copy of the policy.
A perusal of the Ex.A3 disclosed that it was for loading and unloading food grains at M/s. Sri Venkateswara Ware House, Bhumayapalle and it would cover two unskilled workers with validity period from 12.1.2009 to 4.1.2010 and the total premium was Rs.1,835/-
The fact that both the unskilled workers namely Thanga Narayana and Thanga Eswaramma were attacked and were murdered on 7.5.2009 by some dacoits, while they were discharging their duties, is not in dispute. It is also not in dispute that on a complaint in that connection, a case was also registered by Khajipet police under Sections 302, 395 & 376 IPC. After investigation a charge sheet was filed. These facts are also proved by Ex.A7, photostat copy of F.I.R. and Ex.A8 Charge Sheet and Ex.A9, Post mortem report relating to Thanga Narayana and Thanga Eswaramma.
On the information given by the complainant regarding the death of his workers Thanga Narayana and Thanga Eswaramma while they were in duty, the Commissioner for Workmen Compensation and Asst. Commissioner of Labour, Kadapa registered a case and conducted enquiry and passed an award on 7.12.2009 for Rs.2,84,358/- under Workmen Compensation Act regarding the deceased Eswaramma directing the complainant to deposit the awarded amount and also passed an award for Rs.2,65,757/- regarding the deceased Thanga Narayana directing the complainant to deposit the said amount. These facts are proved by Exs.A1 and A2, awards passed by the Commissioner for Workmen Compensation and Asst. Commissioner of Labour. The complainant informed the opposite party insurance company about the above said passing of the awards by the Commissioner for Workmen Compensation and Asst. Commissioner of Labour, Kadapa under originals of Ex.A4 letter dt. 11.5.2009 and Ex.A5 letter dt.8.12.2009.
As seen from Ex.A6 , repudiation letter dt.24.2.2010 the opposite party insurance company repudiated the claim on the ground that the policy was issued covering workmen for loading and unloading operations and as per the crime case records, the deceased Thanga Eswaramma and Thanga Narayana were working as watch women and watch man and as such, they were not covered as per the terms and conditions of the policy.
The complainant in support of its case filed Ex.A11, register of wages which shows that the wages were paid to both the deceased Thanga Narayana and Thanga Eswaramma for the months of January,2009 to May ,2009. The complainant has also filed Ex.A12 , Muster Roll Register of both the employees from January,2009 to 6.5.2009. Exs.A11 and A12 coupled with the awards passed by the Asst. Labour Officer after enquiry established that the deceased were working in the complainant warehouse at the time of their death. As stated above, the policy was issued for unskilled two employees and it was for the purpose of trading and work details of loading and unloading of foodgrains at Sri Venkateswara Warehouse, Bhumayapalle. As rightly observed by the District Forum generally in small warehouse or godown, similar to the complainant warehouse, the workers beside doing loading and unloading work would also act as watchman and watch women under unskilled workers and watchman was also an unskilled worker under the Minimum Wages Act as was held by the Hon’ble Supreme Court of India in the case of BENGAL MOTION PICTURES EMPLOYEES UNION, CALCUTTA vs. KOHONOOR PICTURES PVT. LTD. and others reported in AIR 1964 Calcutta page 519. It was clearly observed in that judgement that under the unskilled workers, watchman is also included and the watchman would become an unskilled worker. As stated above, watchman would also do loading and unloading work along with other workers brought by the proprietor of the complainant. Infact RW1, Asst.Manager of opposite party insurance company at Kadapa has categorically stated in his evidence that watch man should become a skilled person.
As seen from Ex.A13, Photostat copy of stamped receipt issued by Thanga Narayana father of the deceased, clearly shows that he received Rs.2 lakhs by way of cheque on 18.2.2010 and Rs.3,52,115/- by way of cash, in total Rs.5,52,115/- from the complainant. In Exs.A1 and A2 awards of the Commissioner for Workmen Compensation and Asst. Commissioner of Labour, Kadapa specifically mentioned that the employer was identified by the insurance company under the policy. The payment under Ex.A13 was admitted by RW.1, the Asst. Manager of the opposite party company. The opposite party without considering the above facts, erroneously repudiated the claim of the complainant under Ex.A6. Therefore there is deficiency in service on the part of opposite party insurance company. We do not find any grounds to interfere with the well reasoned order of the District Forum to interfere with it.
In the result, the appeal is dismissed confirming the impugned order of the District Forum. But in the circumstances of the case there shall be no order as to costs.
PRESIDENT
MEMBER
PM* Dt. 17.9.2012.
