APHC010524592005 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] THURSDAY, THE THIRTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO: 1261/2005 Between: Chilumuri Ramesh ...APPELLANT AND T Ramachandra Rao & Others ...RESPONDENT(S) Counsel for the Appellant: 1. PEDDI VIJAYBHASKAR Counsel for the Respondent(S): 1. N RAMA KRISHNA 2. . The Court made the following: 2 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.1261 of 2005 JUDGMENT: 1. The present Civil Miscellaneous Appeal is filed against the Order dated 05.10.2005 in W.C.No.47 of 2003 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-I at Guntur, Guntur District. 2. The Claimant is the Appellant herein. 3. The facts leading to filing of the present appeal are as follows:- As per the claim, the Claimant while working as Driver of the lorry bearing No. AP 7T 5352 owned by O.P.No.1, had received grievous injuries in an accident in the course of employment at P.V. Palem Centre in Chandole Mandal. A case was registered as Cr.No.9 of 2003. The Claimant was aged 20 years and was getting monthly wage of Rs.3,500/- by the time of accident. 4. O.P.No.2 i.e. Insurance Company filed its counter while denying most of the averments made in the claim application such as age, wages, employment, treatment, insurance policy coverage at the time of accident and the amount of compensation claimed as highly excessive and without any basis. The vehicle-in-question was not insured by the time of accident with O.P.No.2 and prayed to dismiss the application. 5. The Commissioner framed the following issues for consideration:- 3 1) Whether the applicant was a workman as per the provisions of the Act and he received personal injuries in an accident arising out of and in the course of his employment? 2) Amount of compensation payable to the applicant? and 3) Who are liable to pay the compensation? 6. In the course of evidence, the Claimant examined himself as A.W.1 and also examined Dr. R. Kodandaramireddy as A.W.2 to substantiate his claim of disability and got marked Exs.A.1 to A.7. There was no evidence on behalf of the Respondents. 7. The Commissioner taking into consideration the evidence on record awarded compensation of Rs.1,33,064/-. The present Appeal was filed seeking for enhancement of the amount so awarded. 8. As the notice to Respondent No.1 i.e. owner of the vehicle was not served, this Court on 04.01.2012 passed the following order:- “Learned counsel for appellant(s) is permitted to take out notice returnable in three weeks to respondent No(s).1 or to take the steps indicated, as the case may be. It is directed that in case notice is sent to the same address that was furnished in the O.P., and if for any reason, it is not served, the Registry shall treat the same as served, once the proof as to taking out notice is filed. In default, the appeal shall stand dismissed/abated as the case may be.” 4 9. 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 made by the Registry. No application was filed seeking to set-aside the default order. As the appeal stood dismissed against Respondent No.1 i.e. owner/employer as stated supra and 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. 10. 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 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..” 1 (2007) 5 SCC 428 5 11. In view of the above Judgment, no liability can be fastened on the insurance company, in the absence of the owner/driver. Therefore, the appeal having been dismissed against the Respondent No.1, 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: 13.02.2025 IS 6 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.1261 of 2005 Date: 13.02.2025 IS