IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH:: HYDERABAD WEDNESDAY, THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.60 OF 2009 Between: United India Insurance Company Limited, Rep. by its Divisional Manager, Divisional Office, Anantapur. …Appellant A n d D.Mamataj and others ..Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.60 of 2009 JUDGMENT: This appeal is directed against the order dated 01.08.2008 in W.C.Case No.43/2004, on the file of the Commissioner for Workmen’s Compensation, Anantapur, wherein the said claim application filed by respondents 1 to 4 herein was allowed, awarding compensation of Rs.2,66,598/-. 2. Heard the leaned counsel for the appellant and the learned counsel for the respondents. Perused the record. 3. Respondents 1 to 4 herein filed claim application before the learned Commissioner under the provisions of the Workmen’s Compensation Act seeking compensation of Rs.4,20,000/- for the death of the deceased Anwar who died in a motor vehicle accident that occurred on the night of 20.03.2003. The 1st claimant is the wife, claimants 2 and 3 are the children and the 4th claimant is the mother of the deceased. According to the claimants, the deceased was working as a driver in a jeep bearing No.AP 02 D 9598 belonging to the 5th respondent herein and the death occurred during the course of employment. They further pleaded that the deceased was aged 34 years and was earning Rs.4,000/- per month. 4. The 5th respondent herein, owner of the vehicle, remained ex parte. The appellant-insurer filed counter before the learned Commissioner opposing the claim and denying their liability to pay the compensation. 5. The Tribunal framed the following issues; i. Whether the deceased was a workman or not and whether he met with an accident during the course of and out of his employment resulting in his death or not? ii. What is the amount of compensation payable? iii. Who are liable to pay compensation? 6. The first applicant was examined as A.W.1 and Exs.A-1 to A-9 were marked on behalf of the applicants. The appellant-insurer examined R.W.2 and Exs.B-1 to B- 6 were marked on its behalf. 7. On a consideration of the evidence available on record, the learned Commissioner held that the deceased was a workman and he died in the accident which occurred during the course of his employment as driver. Regarding the quantum of compensation, the Tribunal assessed the same at Rs.2,66,598/- and passed the award for the said amount. Aggrieved by the same, the insurer filed the present appeal. 8. The main contention of the learned counsel for the appellant is that the deceased was not working under the 5th respondent but was travelling in the vehicle as a passenger along with the owner of another jeep and, therefore, there was no relationship of employer and employee between the deceased and 5th respondent. He would further contend that at the time of accident one Chinna Obaiah who purchased the vehicle from the 5th respondent was actually driving the vehicle and the risk of additional driver is not covered by the policy Ex.B-1. 9. The evidence on record, particularly the testimony of P.W.1, coupled with F.I.R Ex.A-1, inquest report Ex.A-3, and charge sheet Ex.A-4 established the fact that the deceased was employed with the 5th respondent as driver in the crime vehicle. The claimants issued a notice Ex.A-5 to the 5th respondent and insurer and they were served under acknowledgements Exs.A-6 and A-7 and the 5th respondent owner of the vehicle issued a reply Ex.A-8 wherein he admitted that the deceased was under his employment as on the date of accident. Ex.A-3, the certified copy of the inquest report, particularly showed that the deceased was driver of the vehicle. In support of their contention that the 5th respondent has sold away the vehicle to Chinna Obaiah and he was driving the vehicle as on the date of accident, the appellant-insurer examined R.W.1 investigator who filed Ex.B-5 statement said to have been recorded from R.W.2, the owner of the vehicle. Ex.B-5 was marked subject to objection, but the same was not duly proved, as the signatory of the said statement has not been examined. Even the attestors of Ex.B-5 also were not examined. Further, in the counter filed by them, the appellant has not taken the plea that the owner has sold away the vehicle by the date of accident. The learned Commissioner has, therefore, rightly rejected the evidence of R.W.2. The further finding of the learned Commissioner that the insurer has failed to establish that the vehicle was sold to China Obaiah even before the accident, does not also call for any interference. In view of the evidence available on record, the learned Commissioner has rightly held that the deceased was working as driver under the 5th respondent and the death occurred in the course of such employment. 10. The next question which then arises for consideration is whether the risk of the deceased is covered by the policy. As per Ex.B-1 policy, the premium is collected to cover the risk of one employee. According to the appellant, Chinna Obaiah who was driving the vehicle at the time of accident filed claim application in O.P.No.388 of 2004 before the Motor Accidents Claims Tribunal, Anantapur and, therefore, the claim of the respondents herein in respect of the deceased who was additional driver is not covered by the policy. Admittedly, O.P.No.388 of 2004 was dismissed. The appellant-insurer has not placed any record to show that the claim for compensation by Chinna Obaiah was allowed or that the appellant- insurer has discharged their liability in that regard. In the absence of any liability arising under the policy in respect of one employee i.e., the driver Chinna Obaiah, it must be held that the appellant-insurer is liable to satisfy the claim of the respondents regarding the death of the deceased Anwar, who was the additional driver of the vehicle. The quantum of compensation as awarded by the Tribunal is not seriously disputed. 11. In the circumstances, the impugned award passed by the learned Commissioner, awarding Rs.2,66,598/-, holding the 5th respondent herein and also the appellant herein jointly and severally liable to pay the same does not, therefore, call for any interference by this Court. 12. In the result, the civil miscellaneous appeal is dismissed. There shall be no order as to costs. ____________________ G.V.SEETHAPATHY, J 17th August, 2011 Lrkm.