IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TENTH (10TH) DAY OF AUGUST, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1177 of 2008 Between: The National Insurance Company Ltd., rep. by its Branch Manager, Ponnur, Guntur district … Appellant And: Kadari Sankar & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.M.A.No.1177 of 2008 JUDGMENT: This appeal is directed against the order dated 24.09.2007 in W.C.No.2 of 2008 on the file of the Commissioner, Workmen’s Compensation Act and Assistant Commissioner of Labour, Circle-II, Warangal, wherein, the claim of the first respondent herein, was allowed awarding compensation of Rs.1,44,330/- together with stamp of Rs.288/- and Advocate fee of Rs.1,000/-, totaling Rs.1,45,618/-. 2. Heard the learned counsel for the appellant and the learned counsel for the first respondent. Perused the record. 3. The first respondent herein filed claim application seeking compensation of Rs.3,00,000/- on account of the injuries sustained by him in the motor vehicle accident that occurred on 03.10.2004. According to the applicant, he was employed as labourer by the 2nd respondent herein (first opposite party) on his tractor and trailer bearing No.AP 36 T 1724 and on that day, while he was attending to his work on the tractor loading earth at Akeruvagu and transporting the same to Warangal, the accident occurred when the driver suddenly moved the engine while the applicant was attaching the hook of the trailer to the engine, as a result of which the chassis of the trailer fell on the applicant’s right foot, causing fracture injury. A case in Cr.No.146 of 2004 was registered by Wardhannapet Police. It is further pleaded by the applicant that he was aged 18 years, earning Rs.150/- per day, besides batta of Rs.20/- per day. It is further pleaded that after the accident, he was admitted in MGM Hospital, Warangal, where an operation was conducted on 3.10.2004 and the injury has resulted permanent partial disability, causing loss of earning capacity. 4. The 2nd respondent-first opposite party, who is the owner of the vehicle, filed a statement admitting the employment of the application on the tractor but denied the liability to pay the compensation. The appellant herein/opposite party No.3 opposed the claim and denied their liability. 5. During enquiry, the applicant was examined as PW.1 and Dr. P.Kali Prasad Rao, Orthopedic Surgeon was examined as PW.2 and Exs.A.1 to A.5 were marked on behalf of the applicant. No oral evidence was adduced by the opposite parties, but Ex.B.1 policy copy was marked on their behalf. 6. On a consideration of the evidence available on record, the learned Commissioner held that the accident occurred in the course of the employment of the applicant as a labourer on the tractor of first opposite party. The learned Commissioner further held that the applicant is entitled for compensation of Rs.1,44,330/- and passed the award against the owner of the vehicle and also insurer, fastening the joint and several liability. Aggrieved by the same, the insurer preferred the present appeal. 7. Learned counsel for the appellant-insurer would contend that the owner of the vehicle has violated the terms and conditions of the policy by putting the vehicle to commercial use, though the vehicle was supposed to be put to agricultural use only as per the conditions of the policy. 8. The employment of the applicant as a labourer on the tractor bearing No.AP 36 T 1724 is not disputed by the employer, who is the owner of the tractor. It is also not disputed that the accident occurred during the course of the said employment. The applicant sustained fracture injury on the right leg when the driver suddenly moved the vehicle, while the applicant was in the process of fixing the hook of the trailer to the tractor. Ex.A.1 CC of FIR and Ex.A.4 CC of charge sheet would show that the accident occurred due to the negligence of the driver of the tractor. When once it is shown that the applicant is an employee and the accident occurred in the course of the employment, he is certainly entitled to seek compensation under the provisions of the Workmen Compensation Act. 9. In support of his claim, the applicant examined PW.2 Orthopedic Surgeon, who treated the applicant at MGM Hospital, Warangal and he issued disability certificate Ex.A.5 estimating the extent of the disability of the applicant as 30%. The medical evidence on record shows that the applicant was admitted as inpatient in the MGM Hospital and a surgery was also conducted for the fracture injury sustained by him and the injury has led to a partial permanent disability to the extent of 30%. In view of the medical evidence available on record as to the nature and extent of the permanent disability, the learned Commissioner has rightly taken the same for consideration while estimating the compensation. The learned Commissioner has taken the age of the applicant as 18 years and the minimum wages of the labourer at Rs.3,542/- per month as per the G.O.Ms.No.81 dated 02.12.2000 and applied the suitable multiplier of 226.38 estimating the compensation at Rs.1,44,330/-. 10. The evidence on record shows that at the time of the accident, the tractor was engaged for the purpose of transporting the earth from Akeruvagu to Warangal. The employer, who is also the owner of the tractor, is a resident of Katriyal village of Wardhannapet Mandal. When that is so, the contention of the applicant that the earth was being transported from Aleruguvagu to the fields of the employer in that village cannot be expected. The transportation of earth from Aleruguvagu to Warangal city cannot be considered to be an agricultural purpose. Admittedly, the policy conditions specify that the vehicle ought to be used only for agricultural purpose if the risk is to be covered. As it is not shown that at the time of the accident, the vehicle was being put to agricultural use, it certainly amounts to violation of the terms and conditions of the policy. However, the appellant-insurer cannot escape from their liability to pay the compensation to the applicant, simply because he has chosen the forum under the Workmen Compensation Act. The appellant-insurer is, therefore, directed to pay the compensation amount with a liberty to recover the same from the owner of the vehicle in view of the violation of terms and conditions of the policy on the part of the owner of the vehicle. It is open to the appellant-insured to recover the amount from the insured by enforcing this order in terms of the decision of the Apex Court in “Oriental Insurance Co.Ltd. V. Nanjappan and others[1]’, wherein at para 8 it was held, as follows: “Therefore, while setting aside the judgment of the High Court we direct in terms of what has been stated in Baljit Kaur’s case that the insurer shall pay the quantum of compensation fixed by the Tribunal, about which there was no dispute raised, to the respondents-claimants within three months from today. For the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the insured, owner of the vehicle shall be issued a notice and he shall be required to furnish security for the entire amount, which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing court shall take assistance of the concerned regional Transport authority. The executing court shall pass appropriate orders in accordance with law as to the manner in which the insured, owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle, the insured.” 11. In the circumstances and for the reasons stated above, it is held that the award passed by the learned Commissioner does not call for any interference by this Court, except to the extent stated above i.e., with a liberty to the appellant-insurer to recover the amount from the owner of the vehicle. 12. In the result, the appeal is disposed of accordingly. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 10.08.2010 bss [1] 2004 ACJ 721 (SC)