APHC010333362008 IN THE HIGH COURT OF ANDHRA PRADESH FRIDAY ,THE FOURTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL Between: The National Insurance Company Ltd Mohamed Kalesha Anr and Others Counsel for the Appellant: 1. N RAMA KRISHNA Counsel for the Respondent(S): 1. O. UDAYA KUMAR The Court made the following: 1 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) FRIDAY ,THE FOURTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO: 848 OF 2008 The National Insurance Company Ltd AND Mohamed Kalesha Anr and Others ...RESPONDENT(S) Counsel for the Appellant: Counsel for the Respondent(S): The Court made the following: IN THE HIGH COURT OF ANDHRA PRADESH [3460] FRIDAY ,THE FOURTEENTH DAY OF FEBRUARY THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY 2008 ...APPELLANT ...RESPONDENT(S) 2 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.848 of 2008 JUDGMENT: 1. The present Civil Miscellaneous Appeal is filed against the Order dated 22.04.2008 in W.C.No.17 of 2005 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour at Tirupati. 2. The Appellant herein is the Opposite Party -II. 3. The facts leading to filing of the present appeal are as follows:- The respondent No.1 being the claimant, has made a claim for compensation contending that on 09.10.2004, the Opposite party-I with an intention to purchase an Auto at about 12.15 hours in the return journey to Venkatagiri, the Auto bearing No. AP 26 U 5944 met with an accident as the vehicle came in opposite direction in a rash and negligent manner colluded against the auto driving by the claimant. In the said accident, the claimant suffered injuries and he was admitted into hospital at Gudur and later shifted to SVRRGG Hospital, Tirupati and inserted a rod due to right thigh bone was broken. It is also pleaded that the claimant was operated and that he is not in a position to work as a driver of an Auto. Therefore, a claim was made as there is permanent disability as 100%. Further, a case in Crime No.133 of 2004, dated 10.10.2004 was registered by Manubolu Police Station, Nellore District. As the vehicle was insured with Opposite Party-II vide N. 550903/31/03/6304041, which was valid from 16.12.2003 to 15.12.2004. Therefore, the claimant made a claim for an amount of Rs. 3,41,208/-. 3 4. Opposite Party-I filed a counter contending inter alia that the claimant was a workman under him. 5. Opposite Party-II filed a counter disputing the claim. In the counter it was pleaded that there is no relationship of employee and employer by claimant and Opposite Party-I. The vehicle was insured in favour of one Mr. K. Abdul Khayyum and not in favour of Opposite Party-I. A reference was made in the FIR that he went to Nellore along with Opposite Party-I as a friend in an Auto. In that view, the Insurance Company sought for dismissal of the claim. 6. The Commissioner framed the following issues for consideration:- 1) Whether the applicant is a workman as per the provisions of the Workmen’s Compensation Act, 1923 and he met with accident arising out of and in the course of his employment resulting into disability and loss of earning capacity? 2. What was the age of the injured applicant at the time of accident? 3. What was the wages paid to the injured applicant at the time of accident? 4. What is the loss of earning capacity suffered and permanent disability percentage faced by the injured applicant? 5. What is the quantum of compensation payable to the applicant? 6. Who are liable to pay the compensation. 7. In the course of evidence, the Claimant himself examined as A.W.1 and no other person has been examined and got marked Exs.A.1 to A.6, i.e Attested copies of F.I.R in Crime No.133 of 2004, Charge Sheet filed in STC No.17 of 2005, Discharge Summary issued by SVRRG Hospital, Tirupati, Driving License, Insurance Policy and Medical Disability Certificate of injured. 4 On the other hand, the appellant is examined as RW-1 and there was no evidence on behalf of the Respondents. 8. The Commissioner, after taking into consideration of oral and documentary evidence, held that the loss and capacity of the claimant at the rate of 100%, after upholding the relationship of employer and employee. The compensation of Rs. 3,61,510/- was awarded and the Opposite Parties were jointly and severally held to be liable to pay the compensation. Hence, the Appeal has been filed. 9. Heard Mr. N. Ramakrishna, learned counsel for the appellant and Ms. K. Salini, learned counsel, representing Mr. O. Udaya Kumar, learned counsel for the respondent. 10. Learned counsel for the appellant contended that there is inconsistency in the evidence of the claimant as he had deposed before the police in the FIR that he was going in a vehicle as friend, but filed the application seeking compensation as workman. It was also contended that policy stands in the name of Mr. Abdul Khayyum and as he is not a party, no liability can be fastened on Insurance Company. The respondent counsel contended in support of the order of Commissioner and absence of policy holder as a party respondent is not material in the facts of this case. 11. Having heard the respective counsel, substantial issue for consideration is “whether any liability can be fastened against the appellant/ Insurance 5 Company in the absence of policy holder of the vehicle as party respondent to claimant/ petitioner?” 12. Admittedly, the Policy stands in the name of one Mr. Abdul Khayyum (Ex.B1) and in the absence of Khayyum as a party respondent, no liability can be fastened on the appellant/ Insurance Company. 13. In Oriental Insurance Co., Ltd., vs. Meena Variyal and Others1, the Hon’ble Apex Court, 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..” 14. In view of the above Judgment, no liability can be fastened on the insurance company, in the absence of the owner/driver. Therefore, the owner of the vehicle vicariously held liable for the act of the driver. Therefore, the 1 (2007) 5 SCC 428 6 order impugned in this Appeal needs to be modified with regard to term of liability. 15. Accordingly, the Civil Miscellaneous Appeal is allowed, setting aside the Order dated 22.04.2008 in W.C.No.17 of 2005 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour at Tirupati as against the appellant. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed. __________________ NYAPATHY VIJAY, J Date: 14.02.2025 KK 7 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO: 848 OF 2008 14-02-2025 KK