IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTIETH DAY OF JULY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Miscellaneous Appeal No.2253 of 2001 Between: New India Assurance Company Limited, represented by its Divisional Manager, Nizamabad. .. Appellant AND Imtiaz Ahmad and another .. Respondents JUDGMENT: This appeal is directed against the award dated 30-12-1996 in W.C.No.1364 of 1995 on the file of the Commissioner for Workmen’s Compensation-cum-Assistant Commissioner of Labour, Nizamabad. The applicant before the Commissioner was the cleaner of Jeep No.APO 1430 owned by the 2nd respondent herein and insured with the appellant herein. He was stated to be aged 20 years and to be receiving a monthly salary of Rs.1800/- and a daily batta of Rs.30/- from the 2nd respondent herein. It was claimed that on 03-03-1995 when he was travelling on his duty, the jeep was involved in an accident with Bus No.AEZ-1267 resulting in multiple fractures to both hands and right leg of the applicant. The applicant claimed to have received treatment from the Government Hospital, Nirmal and then with private doctors with an expenditure of Rs.30,000/- and to have been permanently disabled. He made the claim for the injuries sustained during the course of his employment and the owner of the jeep remained ex parte before the Commissioner. The insurer denied the claim and the applicant and the doctor, who treated him, were examined as PWs.1 and 2 before the Commissioner and Exs.A.1 to A.5 were marked during the enquiry. The Commissioner rendered the impugned award referring to the evidence of the applicant and the doctor and in the absence of any rebuttal evidence, the Commissioner concluded that the accident occurred during the course of employment of the applicant with the 2nd respondent herein and the same resulted in permanent disability. The Commissioner, while accepting the medical evidence, considered the applicant to have sustained 40% permanent disability and the Commissioner fixed the monthly salary of the applicant at Rs.900/- as per the Minimum Wages Act. He assessed the compensation payable for the permanent disability of 40% in terms of the statute at Rs.40,320/-. The insurer challenged the said award in this appeal contending that the risk of the cleaner does not exist in case of a jeep and is not covered by the insurance policy or the Workmen’s Compensation Act. The insurer claimed that APSRTC is also a necessary party to determine their liability and the appropriate forum would have been under the Motor Vehicles Act. The insurer, therefore, desired the award to be reversed. The appeal was dismissed for default against the 2nd respondent, owner of the jeep, vide orders of this Court dated 28- 08-2009. While Sri Kota Subba Rao, learned counsel for the appellant is heard, none appeared for the 1st respondent/applicant on 19-07-2011 and today. The point for consideration is whether the insurer is absolved from liability to pay any compensation to the applicant? Though a formal counter has been filed by the insurer to the claim made by the applicant before the Commissioner, no evidence has been let in by the insurer before the Commissioner. The evidence of the applicant as PW.1 and the doctor as PW.2 before the Commissioner remained unrebutted and unchallenged. The evidence of the applicant was exactly in terms of the claim and during the course of cross-examination by the insurer the fact that the applicant was travelling in the jeep was not questioned, while suggesting that he was travelling as a passenger and not as a cleaner. The doctor was questioned only about his competence, but not about the factum of examining the applicant and finding the injuries and permanent disability spoken to by him. The First Information Report, the insurance receipt, the salary certificate and the disability certificate marked as Exs.A.1 to A.4 further strengthen the claims of the applicant. Though the insurer claimed that the liability of the cleaner is not covered by the insurance policy, more so, under the Workmen’s Compensation Act, the insurance policy itself has not been filed either before the Commissioner or this Court. The liability of the APSRTC being decided in the claim under the Workmen’s Compensation Act does not arise and the appellant cannot be compelled to take recourse to any other remedy for his claim against APSRTC, if he is otherwise entitled to the claim herein. Therefore, insofar as the applicant is concerned, the insurer cannot have any relief even in this appeal. However, if the claims of the insurer are true and the insurance policy does not cover the liability of the cleaner, it can still be given the option to pay the compensation awarded by the impugned award and recover the same from the owner of the jeep before the Commissioner for Workmen’s Compensation without the necessity of being referred to any separate suit if it is able to prove before the Commissioner that the insurance policy does not cover the risk of a cleaner of the jeep. Subject to such liberty to the insurer/appellant, the appeal should fail. Accordingly, the appeal is dismissed without costs. But, the appellant has the liberty to pay the amount awarded by the impugned award to the applicant and recover the same from the 2nd respondent herein before the Commissioner for Workmen’s Compensation without the necessity of being referred to any separate suit subject to proof of the insurance policy not covering the risk of the cleaner of the jeep before the Commissioner. _____________________ G. BHAVANI PRASAD, J Date: 20-07-2011 Ksn