APHC010471802004 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] FRIDAY, THE TWENTY FIRST DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO: 3811/2004 Between: Mr. Basheer Miah & 3 Others ...APPELLANT(S) AND Mr. G. Narayana Reddy and Others ...RESPONDENT(S) Counsel for the Appellant(S): 1. KOPPULA GOPAL Counsel for the Respondent(S): 1. S M SUBHAN 2. . The Court made the following: 2 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.3811 of 2004 JUDGMENT: 1. The present C.M.A is filed under Section 30 of the Workmen’s Compensation Act, 1923 against the Order dated 23.12.2002 in W.C.No.96 of 1999 passed by the Commissioner for Workmen’s Compensation, Kurnool. 2. The Claimants are the Appellants herein. 3. The facts leading to filing of the present appeal are as follows:- The Claimants are father, sister and brothers of one late S. Khaja Basha @ Khaja Pasha (hereinafter referred to as “deceased”) respectively. The deceased was working as a Cleaner in the Lorry bearing No.A.T.Q.6171 owned by O.P.No.1. The vehicle was insured with O.P.No.2-Insurance Company vide policy bearing No.051100/31/ 021/16/103/29451/1997. On 19.06.1998 at about 10.30 a.m. during the course of employment, while the deceased was removing the ropes on the top of the lorry to unload the poultry feed at Chand Pasha Poultry Farm, near Sangala Village, Gadwal Mandal, the ropes suddenly lied on electric wires, which were passing above the lorry. Due to which, the deceased died due to burns and shock on the top of the lorry. The accident occurred in the course of employment. At the time of death, the deceased was aged 19 years. He was being paid monthly wages of Rs.2,500/- per month. The Claimants are the dependents of the deceased. Hence, claim application was filed seeking compensation of Rs.2,50,000/-. 3 4. O.P.No.1 i.e. owner did not file any counter and remained ex parte. 5. O.P.No.2-Insurance Company filed its counter denying the employment of the deceased under O.P.No.1, age and wages. 6. Based on the pleadings, the Commissioner framed the following issues for consideration:- 1) Whether the applicants are the dependents of the deceased Khaja Basha @ Khaja Pasha. 2) Whether there is employer – employee relationship between O.P.1 and deceased S. Khaja Basha. 3) Whether there was an accident out of and in the course of employment of the deceased resulting in his personal injuries leading to death of Khaja Basha. 4) The exact age and wages of the deceased at the time of accident, if accident occurred. 5) Whether the Opposite party Nos.1 and 2 are liable to pay any compensation to the applicants, if entitled what is the quantum of compensation? 7. In the course of evidence, the Claimant No.1 i.e. the father of the deceased himself was examined as A.W.1 apart from examining one G. Narayana Reddy, who is the owner and eye witness to the incident as A.W.2 and got marked Exs.A.1 to A.5 i.e. F.I.R, Inquest Report, Post- mortem Report, Case Disposal Report/Final Report and copy of Insurance policy respectively to substantiate their claim. 8. No evidence let in on behalf of the Respondents. 4 9. The Commissioner taking into consideration the oral and documentary evidence awarded compensation of Rs.1,42,748/-. Hence, the present C.M.A is filed seeking for enhancement of the amount so awarded. 10. As the notice to Respondent No.1 i.e. owner of the vehicle was not served, this Court on 16.03.2011 passed the following order:- “Issue notice/s to Respondent No.1 by Registered post with Acknowledgment Due or by Courier or through any mode of service on payment of batta by the petitioner/s. Counsel for the petitioner/s is also permitted to take out personal notice to the respondent No.1 by any mode of services, if he/they so choose/s within a period of six weeks.” 11. As the order of this Court was not complied with, the appeal against the owner/O.P.No.1 stood dismissed as per the endorsement by the Registry. No application was filed seeking to set-aside the default order. 12. As the appeal stood dismissed against Respondent No.1 i.e. owner/employer, as stated supra, no liability can be fastened in this appeal against him. In the absence of any liability against the owner/employer, the insurance company i.e. indemnitor cannot be made liable. 13. The Hon’ble Supreme Court in Oriental Insurance Co., Ltd., vs. 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 paragraph there under:- 1 (2007) 5 SCC 428 5 “.....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 O.P.No.2-insurance company, in the absence of the owner/employer. Therefore, the appeal having been dismissed against the Respondent No.1 i.e. owner, the C.M.A is dismissed. There shall be no order as to costs. As a sequel, pending applications, if any, shall stand closed. __________________ NYAPATHY VIJAY, J Date: 21.02.2025 IS 6 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.3811 of 2004 Date: 21.02.2025 IS