APHC010598102008 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3460] WEDNESDAY, THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO: 517/2008 Between: Chittajallu Ananda Kumar ...APPELLANT AND Adapa Srinivasa Rao And Another and Others ...RESPONDENT(S) Counsel for the Appellant: 1. G SANJEEVA REDDY Counsel for the Respondent(S): 1. BATHULA RAJ KIRAN The Court made the following: 2 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.517 of 2008 JUDGMENT: 1. The present Civil Miscellaneous Appeal is filed against the Order dated 06.02.2004 in W.C.No.7 of 2003 passed by the Commissioner for Workmen’s Compensation, 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 Cleaner in the lorry bearing No.AEN 5051 of O.P.No.1 had received injuries in the course of employment on 05.10.2002. While he was coming from Mumbai to Vijayawada with a load of soaps, the accident occurred on 05.10.2002 in the outskirts of Dhound Village of Pune District of Maharashtra State. The Claimant suffered injuries and sought an amount of Rs.30,000/- towards compensation. A case was also registered by Dhound Police Station as Cr.No.155 of 2002. 4. O.P.No.1 i.e. employer filed counter admitting the employment of the Claimant as Cleaner and the accident that occurred on 05.10.2002. 5. O.P.No.2 i.e. insurance company filed their counter disputing the claim. 6. 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? 7. In the course of evidence, the Claimant examined himself as A.W.1 and also examined Dr.G. Vara Prasad 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. 8. The Commissioner taking into consideration the evidence on record awarded compensation of Rs.19,021/-. The present Appeal was filed seeking for enhancement of the amount so awarded. 9. Heard Sri G. Sanjeeva Reddy, learned counsel for the Appellant and Sri Bathula Raj Kiran, learned counsel appearing for the Respondents. 10. As the notice to Respondent No.1 i.e. owner of the vehicle was not served, this Court on 16.03.2016 passed the following order:- “Learned counsel for petitioner(s)/appellant(s) is permitted to take out personal notice as against respondent No.1 through Regd. 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.” 4 11. As the order was not complied with, the appeal against the owner/O.P.No.2 stood dismissed as per the endorsement made by the Registry. No application was filed seeking to set-aside the default order. 12. In the course of arguments, when this issue was brought to the notice of the counsel for the Appellant, a Judgment of this Court in Meka Chakra Rao vs. Yelubandi Babu Rao and others1 was cited to contend that the Appeal can still be maintained even if appeal stood dismissed against the owner/employer for default. 13. This Court after considering the submissions made by the counsel for Appellant is of the opinion that the Insurance policy is a contract of indemnity to cover the liability of the indemnitee i.e. policy holder. In this case, 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. 14. The Hon’ble Supreme Court in Oriental Insurance Co., Ltd., vs. Meena Variyal and Others2 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 1 2002 ACJ 828 2 (2007) 5 SCC 428 5 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..” 15. 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, there is no merit in the contention of the appellant and 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: 05.02.2025 IS 6 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANOUES APPEAL NO.517 of 2008 Date: 05.02.2025 IS