THE HON’BLE SRI JUSTICE K.S.APPA RAO CIVIL MISCELLANEOUS APPEAL No.1122 of 2008 JUDGMENT: Having been aggrieved by the order passed in W.C.No.37 of 2005 dated 28.06.2007 on the file of the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Khammam District, the present civil miscellaneous appeal is filed. 2. The appellant is the opposite party No.2 in W.C.No.37 of 2005. The claimants are the parents of the deceased Shaik Jani. The Tribunal below while evaluating the evidence of P.W-1 and R.W-1, documents Exs.A-1 to A-3 and Ex.B-1, fastened the liability against the opposite party i.e. the Insurance Company. Aggrieved by the said finding, the present civil miscellaneous appeal is filed. 3. Now the point for consideration is whether the order of the Tribunal below is sustainable? P O I N T:- 4. The applicants filed the application under the provisions of Workmen’s Compensation Act, 1923 alleging that on 22.06.2005 the driver of the auto bearing registration No.AP 20 V 8965 namely Mohammed Janimiya S/o Yakub Ali, R/o Seethampeta and the deceased went to Mahabubabad on the said auto to bring cement sheets of one Bhukya Ramdas and after loading the sheets on the auto, while the driver and the deceased were proceeding to Kasnathanda and on the way when the auto reached ZPSS School of Seethampeta Village, the driver of the auto drove the same in a rash and negligent manner at high speed and lost control over the same. As a result, the auto turned turtle and the cement sheets fell on the deceased and due to impact of the same, the deceased (Shaik Jani) died on the spot. A case in crime No.59 of 2005 under Section 304-A of Indian Penal Code (for short ‘I.P.C’) was registered by the P.S.Garla against the driver of the auto bearing No.AP 20V 8965. The respondent No.1 i.e. owner of the auto filed his counter in which he clearly stated that deceased was working as a worker/cleaner on his auto and he was on duty on 22.06.2005. 5. In order to claim the compensation, the father of the deceased was examined as P.W.1. As per his evidence, his deceased son Shaik Jani while working as worker/cleaner with opposite party No.1 on the auto bearing No. AP 20V 8965 was earning Rs.80 per day and Rs.20/- as batha, thus, totalling to Rs.3000/- per month towards salary. Ex.A-1 – A-3 were marked on behalf of the petitioners. To report the evidence of P.W.1, the respondent-R.W.1, Ch. Kanta Rao, A.O of the Insurance Company was examined. According to him, they have issued the policy in question on the offending vehicle and they have collected premium, which covers the risk for the owner and the driver and not for the cleaner and insurance company is not liable to pay the compensation on account of the death of the deceased of the auto. He asserted to the cross-examination that no premium was collected for the cleaner as the offending auto had no provision to accommodate the cleaner in the auto and therefore they are not liable to pay the compensation. The factum of accident is not in dispute beyond the policy related to the offending vehicle in question. 6. Ch. Kanta Rao, A.O of New India Insurance Company Limited was examined as R.W-1. He stated that they had issued policy bearing No.620701/31/05/01700 valid from 13.05.2005 to 12.05.2006 and they have collected the premium for the owner and driver and not for the cleaner of the offending auto. The deceased is not a driver of the auto in question. 7. The learned counsel appearing for the appellant placed reliance in the decision reported in the case of VACHALA Vs R. KUMAR[1] and urged that absence of insurance coverage for the risk of the cleaner, the insurance company is not liable to pay any compensation. 8. As seen from the aforesaid judgment that when the seating capacity of a vehicle is only for the driver alone, the driver alone can travel in the vehicle and therefore the question of anybody else, either it be the owner of the goods, or his authorised representative, allowed to travel therein, cannot arise in view of Rule 252 (5) of Andhra Pradesh Motor Vehicles Rules, 1989, made in pursuance of the power given under the Act. The aforesaid decision squarely, applicable to the facts and circumstances of the case on hand. 9. Admittedly, under Ex.B-1, the insurance company collected premium only for the risk of the driver but not the cleaner as stated by R.W.1. No tangible evidence was adduced on behalf of the owner of the offending auto that he paid any premium covering the risk of the cleaner. Therefore, when there is no premium collected covering the risk of the cleaner, insurance company is not liable to indemnify the compensation on account of death of the cleaner i.e. the deceased in this case as there is a violation of the policy conditions under Ex.B-1. 10. Therefore, the finding of the Tribunal fastening the liability on the insurance company is erroneous. Hence the respondent-3 should pay the compensation to the petitioners for the death of the deceased as respondent admitted that the deceased was in his employment as on the date of the accident. 11. Hence, the civil miscellaneous appeal is allowed setting aside the orders of the Tribunal below. There shall be no order as to costs. ____________________ K.S.APPA RAO, J March 30th, 2011 SP THE HON’BLE SRI JUSTICE K.S.APPA RAO CIVIL MISCELLANEOUS APPEAL No.1122 OF 2008 March 30th, 2011 SP [1] 2004 ALT-5-460