APHC010663722011 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: 418/2011 Between: Smt. Panthangi Padma & 2 Ors ...APPELLANT(S) AND Mr. R. Sivaji and Others ...RESPONDENT(S) Counsel for the Appellant(S): 1. V. PADMANABHA RAO Counsel for the Respondent(S): 1. . 2. P N A CHRISTIAN The Court made the following: 2 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.418 of 2011 JUDGMENT: 1. The present Civil Miscellaneous Appeal is filed against the Order dated 12.09.2001 in W.C.No.28 of 1999 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour-II at Guntur, Guntur District. 2. The Claimants are the Appellants herein. 3. The facts leading to filing of the present appeal are as follows:- The Claimants are wife and sons of late Nagulu (hereinafter referred to as “deceased”). The deceased was working as Driver of the lorry bearing No.AHJ 6611 owned by O.P.No.1 for a period of three years prior to the accident. On 01.06.1995 at about 1.30 p.m. while the deceased was coming from Karimnagar side to Hanumakonda, he met with an accident in collusion with another lorry bearing No.ATP 2412. As a result of which, he died on the spot during the course of employment under O.P.No.1. The deceased was having valid driving license at the time of accident. A case in Cr.No.79/1995 was registered by Hasanparthi Police Station, Warangal District. The deceased was aged about 38 years and he was being paid monthly wage of Rs.2,000/- and Rs.25/- per day as batta by O.P.No.1 at the time of accident and both the opposite parties are liable to pay compensation. Being the legal heirs of the deceased, the Claimants are eligible to receive the compensation. Hence, the claim application was filed. 3 4. O.P.No.1 i.e. owner filed counter admitting that he is the owner of the vehicle and the deceased died during the course of employment. He contended that the vehicle was insured with O.P.No.2 and the policy was in force at the time of accident. 5. O.P.No.2 i.e. Insurance Company filed counter denying the allegations made in the claim application. He denied the factum and manner of accident on 01.06.1995. 5. The Commissioner framed the following issues for consideration:- 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 i.e. the wife of the deceased herself was examined as A.W.1 and got marked Exs.A.1 to A.7 i.e. F.I.R, Charge Sheet, Death Certificate, Post-mortem Certificate, Inquest Report, M.V.I. Report and Copy of Driving License respectively to substantiate their claim. 7. No evidence let in on behalf of the Respondents. 8. The Commissioner taking into consideration the oral and documentary evidence awarded compensation of Rs.75,976/-. Hence, the present C.M.A is filed seeking for enhancement of the amount so awarded. 4 9. As the notice to Respondent No.1 i.e. owner of the vehicle was not served, this Court on 12.07.2016 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 weeks. Failing which, petition/appeal shall stand dismissed without reference to the Court as against respondent No.1.” 10. 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. 11. 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. 12. 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:- “.....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 1 (2007) 5 SCC 428 5 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..” 13. 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 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: 13.02.2025 IS 6 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.418 of 2011 Date: 13.02.2025 IS