APHC010044882005 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: 440/2005 Between: National Insurance Company , ...APPELLANT AND Valasa Penchalaiah and Others ...RESPONDENT(S) Counsel for the Appellant: 1. S A V RATNAM Counsel for the Respondent(S): 1. M RAJAMALLA REDDY 2. D KODANDARAMI REDDY The Court made the following: 2 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO.440 of 2005 JUDGMENT: 1. The present Civil Miscellaneous Appeal is filed against the Order dated 31.01.2005 in W.C.No.108 of 2003 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Cuddapah, Cuddapah District. 2. The insurance company is the Appellant. 3. The facts leading to filing of the present appeal are as follows:- The Claimant was working as a Coolie under O.P.No.1/Respondent No.2 herein in lorry bearing No.AP 16 X 8474, which was insured with O.P.No.2/Appellant herein. On 04.10.2003, the Claimant along with some other Coolies went to the fields at Pulampeta Village for cutting and loading Papaya fruits in the lorry. After loading the fruits in the lorry, while they were going back and had to Koduru, when the vehicle reached Gurukulapatasala at about 7.30 p.m., the driver of the lorry could not control the vehicle due to high speed and collided against a tipper lorry bearing No.AP 9X 1737. 4. In the said accident, the Claimant sustained grievous injuries and his right leg and hand were fractured. The Claimant was also operated and was shifted to S.V.R.R.G.H. Hospital, Tirupathi for treatment. The Obullavaripalli Police Station had registered a case in Cr.No.64/2003 for the offence punishable under Sections 337 and 338 of IPC against the driver of the lorry in which the Claimant was travelling. As the vehicle was insured with O.P.No.2/Appellant herein vide policy No.501600/31/03/6307194 valid from 15.06.2003 to 14.06.2004, an application was filed before the Authority seeking compensation of Rs.1,80,000/-. 3 5. O.P.No.1 i.e. owner of the lorry filed counter admitting the employment of the Claimant as Coolie in his lorry on the date of accident and that the Claimant was being paid Rs.180/- per day. It was also stated that the policy covers the risk of Coolies and Labourers and therefore the insurance company is bound to pay the compensation. The insurance company also filed their usual formatted counter denying all the allegations. 6. On the basis thereof, the Authority framed the following issues for consideration:- 1) Whether the applicant is 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 support of the claim, the Claimant apart from examining himself as A.W.1 and examined Dr.G. Venkata Subbaiah as A.W.2, who had assessed the permanent disability at 40% and got marked Exs.A.1 to A.5. On behalf of the Respondents, O.P.No.2 was examined as R.W.1 and got marked Ex.B.1 insurance policy. 4 8. Taking into consideration the claim, the evidence and the respective contentions, the Commissioner granted compensation of Rs.1,27,668/- to the Claimant and O.P.Nos.1 & 2 were jointly and severally liable for the said amount. Questioning the same, the present C.M.A is filed. 9. Heard Smt.S.A.V. Ratnam, learned counsel for the Appellant- insurance company and Sri D.Kodandarami Reddy and Sri M. Rajamalla Reddy, learned counsel appearing for the Respondents. 10. This Court on 02.01.2012 directed the Petitioner to take out personal notice to the Respondent No.2 and file proof of service in the Registry within three weeks. In the event, the Petitioner failed to file proof of service, the Appeal would stand dismissed for default against the Respondent No.2 i.e. the owner. The order dated 02.01.2012 is extracted below:- “Learned counsel for the appellant(s) is permitted to take out notice returnable in three weeks to respondent No(s).2 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.” 11. As the appellant did not comply with the above extracted direction, the Registry gave effect to the order dated 02.01.2012 and the appeal stood dismissed against the Respondent No.2. 12. In view of the dismissal of the appeal against the Respondent No.2, the joint and several liability as well as the quantum of compensation awarded under the impugned order attained finality. 5 13. Notwithstanding the above, the only ground urged by the counsel for the Appellant was that the policy does not cover the Coolies. In the opinion of this Court, the loading and unloading Coolies cannot be said to be gratuitous passengers and they are to be held as employees of O.P.No.1. It is not in dispute that the policy covers third party and in view of the amendment to the definition of “Third Party” vide Motor Vehicles (Amendment) Act 2019, all persons other than the owner come under the amended definition of ‘third party’. The Section 145 (i) reads as under: 145 (i) “third party” includes the Government, the driver and any other co- worker on a transport vehicle. 14. This Court in National Insurance Co. Ltd. v. Savidi Anjaneyulu1 has held that the amendment to the definition of Section 145 (i) of the Motor Vehicles (Amendment) Act, 2019 is clarificatory and therefore it is applicable retrospectively covering the risk of the driver or any other co-worker as ‘third-party’. Therefore, even on this ground, the claim of the Appellant cannot be sustained. 15. Accordingly, the C.M.A is dismissed. The State Legal Services Authority shall ensure that the compensation is paid to the Claimant directly into his Aadhar linked bank account at the earliest. 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 1 SCC OnLine AP 4840 6 THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANOUES APPEAL NO.440 of 2005 Date: 05.02.2025 IS