APHC010205002011 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] MONDAY ,THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO: 947/2011 Between: Koya Venkateswarlu ...APPELLANT AND T Venkateswarlu And Another and Others ...RESPONDENT(S) Counsel for the Appellant: 1. GIRIDHAR ALAPATI Counsel for the Respondent(S): 1. B PARAMESEWARA RAO 2. P BHASKAR The Court made the following: 2 HON’BLE SRI JUSTICE NYAPATHY VIJAY C.M.A No.947 of 2011 JUDGMENT:- The present Civil Miscellaneous Appeal is filed against the order dated 25.05.2011 in W.C.No.4 of 2009 passed by the Commissioner for Workmen’s Compensation and Deputy Commissioner of Labour, Ongole. 2. The facts leading to filing of the present Appeal are as under:- The claimant was working as cleaner in lorry bearing No. AP 27 V 1159 owned by Opposite Party No.1 on a monthly salary of Rs.4,500/- and batta of Rs.50 per day. When they are proceeding to Nellore from Chimakurthy with a load of gravell, on 04.10.2008 at about 4.30 a.m. near Kavali Police Station a tipper was passing near by had lost control over and ran over two passengers and turned turtle resulting in receiving multiple injuries. He was admitted in Government General Hospital, Kavali and from there shifted to Mytri Super Speciality Hospital, Ongole for better treatment. As the claimant was unable to perform any work and lost his 3 livelihood, he filed claim application seeking compensation of Rs.2,00,000/-. 3. Opposite Party No.1/owner of the vehicle remained ex parte. Opposite Party No.2/the insurance company filed its counter disputing the claim, the nature of injuries and the liability to pay compensation. 4. On the basis of the pleadings, the Commissioner framed following issues: “1. Whether the applicant is a workman under the definition of the Act and met with accident arising out of and in the course of his employment? 2. If so, what is the extent of disability caused to the applicant? 3. What is the age and wage of the applicant? 4. To what relief the applicant is entitled? 5. What is the extent of liability of payment of compensation to the applicant lies on the opposite parties? 5. In the course of evidence, the claimant himself was examined as A.W.1, one Dr.G.Partha Sarathi Raju was examined as A.W.2 and one Ungarala Ramarao is examined as A.W.3 and marked Exs.A.1 to A.4 in support of his claim. On behalf of the Respondents, Ex.R.1 copy of the policy was marked. 4 6. The Commissioner, after taking into consideration the evidence let in, dismissed the claim application stating that the claimant has failed to establish the permanent partial disability caused to him was due to the accident and was during the course of employment. Hence, the present appeal is filed. 7. As the notice to Respondent No.1 i.e. owner of the vehicle was not served in the Appeal, this Court on 08.07.2016 passed the following order:- “Learned counsel for petitioner(s)/appellant(s) is permitted to take out personal notice to respondent No.1 through Registered Post with acknowledgment due and file proof of service within four (04) weeks. Failing which, petition/appeal shall stand dismissed without reference to the Court as against respondent No.1.” 8. As the order was not complied with, the appeal against the owner/O.P.No.1/Respondent No.1 stood dismissed as per the endorsement made by the Registry. No application was filed seeking to set-aside the default order. 9. Once the appeal against employer/owner is dismissed, no liability can be fastened on the indemnitor i.e. Insurance company. 5 10. The Hon’ble Supreme Court in Oriental Insurance Co., Ltd., v. Meena Variyal and Others1 lucidly explained as to how the liability is to be fastened on the insurance company in compensation cases. Though the said case arises under motor vehicle accident, it would be appropriate to refer to the relevant paragraphs there under:- “.....Ordinarily, a contract of insurance is a contract of indemnity. When a car belonging to an owner is insured with the insurance company and it is being driven by a driver employed by the insured, when it meets with an accident, the primary liability under law for payment of compensation is that of the driver. Once the driver is liable, the owner of the vehicle becomes vicariously liable to payment of compensation. It is this vicarious liability of the owner that is indemnified by the insurance company. A third party for whose benefit the insurance is taken, is therefore entitled to show, when he moves under Section 166 of the Motor Vehicles Act, that the driver was negligent in driving the vehicle resulting in the accident; that the owner was vicariously liable and that the insurance company was bound to indemnify the owner and consequently, satisfy the award made..” 11. In view of the above Judgment, no liability can be fastened on the insurance company, in the absence of the 1 (2007) 5 SCC 428 6 owner/driver. Therefore, the appeal having been dismissed against the Respondent No.1, the present Appeal is dismissed. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed. __________________ NYAPATHY VIJAY, J Date: 17.02.2025 KLP