HON’BLE SRI JUSTICE C.V. RAMULU C.M.A.No. 2468 of 1999 DATE:26.03.2010 Between: The Branch Manager, United India Insurance Co.Ltd., Guntur. … Appellant and Mekala Srinivasarao and another … Respondents HON’BLE SRI JUSTICE C.V. RAMULU C.M.A.No. 2468 of 1999 JUDGMENT: This appeal, under Section 30 of the Workmen’s Compensation Act, is directed against the order, dated 24.06.1999, made in W.C.No.178 of 1995 on the file of the learned Commissioner for Workmen Compensation, Guntur, whereunder the claim of the applicant was allowed. 2. The appellant is the 2nd opposite party, the 1st respondent is the claimant and the 2nd respondent is the 1st opposite party in W.C.No.178 of 1995. 3. The parties are referred to as arrayed in W.C.No.178 of 1995. 4. The applicant filed the application claiming compensation of Rs.1,12,000/-. It is stated that the applicant was working as a cleaner on a lorry bearing No.ABG 1269 belonging to the 1st opposite party and during the course of employment, he met with an accident on 19.11.1994 within the limits of Ganeshgudi P.S., Karwar District, Karnataka State, resulting in injuries and fractures to his right leg and femur. Immediately, he was admitted to K.M.C. Hospital, Mumbai, and later, shifted to G.G.H., Guntur, on 25.11.1994, where he took treatment and an operation was conducted on the fracture of his right leg thigh. Because of the fractures sustained in the accident, he became permanently disabled and he is not in a position to work as cleaner on lorry. The applicant was paid wages of Rs.1,000/- p.m. and Rs.20/- per day as batta. He was aged 19 years at the time of the accident. Crime No.27 of 1994 was registered by the Ganeshgudi P.S., under Sections 279 and 337 IPC. 5. The 2nd opposite party-Insurance company filed a counter on 04.04.1996 denying the averments of the application and contending that the driver of the vehicle involved in the accident was not having a valid driving licence at the relevant point of time. Therefore, the Insurance company is absolved from its liability. 6. The 1st opposite party-owner of the vehicle also filed a counter on 02.07.1997 denying the averments of the application and the allegations of the counter filed by the 2nd opposite party. It is stated that the 2nd opposite party settled the claim of the 1st opposite party for the loss caused to his lorry. 7. On the above pleadings, the following issues were framed for decision: (i) 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 making him physically disabled? (ii) What was the age of the applicant at the time of the accident? (iii) What were the wages paid to the applicant at the time of the accident? (iv) What was the loss of earning capacity suffered by the applicant? (v) What was the amount of compensation payable? (vi) Who are liable to pay the compensation? 8. On behalf of the applicant, A.Ws.1 and 2 were examined and Exs.A.1 to A.5 were marked. On behalf of the opposite parties, R.Ws. 1 and 2 were examined and Exs.R.1 to R.7 were marked. 9. After a careful scrutiny of the entire evidence on record, the learned Commissioner for Workmen’s Compensation held that the applicant was a workman as per the provisions of the Act and he received personal injuries in the accident arising out of and during the course of his employment under the 1st opposite party and that the vehicle involved in the accident is having insurance coverage at the time of the accident and thus allowed the application awarding compensation of Rs.55,459/- to the applicant holding the opposite parties 1 and 2 jointly and severally liable to pay the same, by an order, dated 24.06.1999. The same is questioned in this appeal. 10. Learned counsel for the 2nd opposite party-Insurance company strenuously contended that absolutely, the Insurance company is not liable to pay any compensation as claimed by the applicant and the driver of the lorry was not holding a valid licence at the time of the accident. Further, the learned Commissioner erred in holding that the 1st opposite party and the 2nd opposite party were jointly and severally liable for payment of the compensation. In this regard, the learned counsel submitted that the general liability of Insurance Company, as is decided by the Supreme Court in various judgments that whenever there is no licence or a fake licence or an invalid licence held by a driver, the compensation be paid by the insurer and then recover the same from the insured, is not available under the Workmen’s Compensation Act. Such a law was declared by the Apex Court as to the liability of the Insurance Company to pay the compensation first and then recover from the insured, in view of the provision under section 149 of the Motor Vehicles Act. Since there is no such similar provision available in the Workmen’s Compensation Act, the Insurance Company is not liable to pay the compensation. 11. I am not inclined to accept the contentions raised by the learned counsel for the 2nd opposite party-Insurance Company. The reasons are that admittedly, the applicant was working as a cleaner on the lorry owned by the 1st opposite party, and therefore, the provisions of the Workmen’s Compensation Act attract to the case on hand, since the accident occurred during the course of his employment and the lorry had a valid insurance policy at the time of the accident. The only ground, on which the insurance company is relying to avoid its liability, is that the driver of the lorry was not holding a valid licence. On this ground alone, the Insurance Company cannot deny its liability of payment of compensation. Since its liability is joint and several along with the 1st opposite party-owner, the Insurance Company is liable to pay the compensation first and then recover the same from the 1st opposite party-owner of the vehicle, if it intends to do so. The appeal is devoid of merit and liable to be dismissed. 12. Accordingly, the C.M.A. is dismissed. There shall be no order as to costs. ________________ C.V. RAMULU, J 26th March, 2010. CBS HON’BLE SRI JUSTICE C.V. RAMULU C.M.A.No. 2468 of 1999 (Dismissed) 26th March, 2010 CBS