IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE EIGHTH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.888 of 2002 Between: The Oriental Insurance Co. Ltd., Begumpet, Hyderabad ..... APPELLANT(S) AND Smt K.Sharada and others .....RESPONDENT(S) THE HON'BLE SRI JUSTICE GHULAM MOHAMMED C.M.A.No.888 of 2002 ORDER: This is an appeal by the insurance company assailing the legality and correctness of the order of the Commissioner for Workmen’s Compensation & Assistant Commissioner of Labour, Hyderabad-II (for short – ‘the Tribunal’), in W.C.No.18 of 2000 dated 07.06.2001. The facts, in brief, of the case are that the respondent Nos.1 to 5, who are wife and children of K.Chandramouli (hereinafter referred to as – ‘the deceased’), have filed the above claim petition alleging that the deceased was under the employment of 6th respondent as a driver on the lorry bearing No.AHJ-7475; that on 06.06.1997 while the deceased was driving the said lorry towards Shadnagar and reached near Annapoorna Dal Mill in the limits of Mailardevpally, the lorry turned turtle and the deceased died on the spot. The 6th respondent in his counter filed in the Tribunal admitted the employment, age and wage of the deceased, and the incidence of accident; but pleaded that, since the offending vehicle was insured with the appellant, the liability, if any, to pay the compensation is on the appellant. The appellant in its counter filed in the Tribunal contended that there was no employer-employee relationship and the deceased was driving the vehicle unauthorisedly and the alleged accident did not take place during the course of employment and so it is not liable to pay any compensation. After considering the oral and documentary evidence on record, the Tribunal granted a compensation of Rs.2,16,000/- to the claimants making the 6th respondent and the appellant jointly and severally liable to pay the same. The learned counsel for the appellant vehemently contended that the Tribunal grossly failed in not considering the evidence of the cleaner of the offending vehicle to the effect that after the lorry reached Hayathnagar, they engaged a local lorry driver from Raghavendra Lorry Service and en route to Shadnagar, the accident occurred and the driver died and so, there was no employer-employee relationship between the 6th respondent and the deceased; that as per Ex.P.1, FIR, the deceased was not under the employment of the owner of the offending vehicle but was engaged by Raghavendra Lorry Service and as such the deceased was driving the offending vehicle unauthorisedly without any instructions from the 6th respondent; that the Tribunal was in error in considering a part of the FIR and rejecting the other part. He placed reliance on a judgment of the Apex Court in the case of ORIENTAL INSURANCE CO. LTD. vs. PREMLATA SHUKLA AND OTHERS[1] wherein it was held that once a part of FIR is relied upon by both parties, Tribunal cannot be said to have committed any illegality in relying upon other part, irrespective of contents of document have been proved or not. The learned counsel appearing for the claimants contended that since the deceased falls within the definition of ‘workman’ under Section 2(n) of the Workmen’s Compensation Act, 1923, and since the employer himself has admitted that the deceased was working under him, the vicarious liability of the 6th respondent as well as the appellant cannot be ruled out and hence the order of the Tribunal cannot be found fault with. Now the point that arises for consideration is whether the appellant is not liable to pay the compensation to the claimants. There is no dispute that the 6th respondent was owner of the offending lorry. There is also no dispute that the offending lorry was brought from Vijayawada to Raghavendra Lorry Service at Hayathnagar by the driver of the 6th respondent. Here it is pertinent to note that the deceased was engaged by the said Raghavendra Lorry Service for delivery of the goods in the city and as such, it is clear that the deceased was under the employment of the said Raghavendra Lorry Service. The accident occurred en route to Shadnagar where the goods are to be delivered and the deceased was driving the offending lorry. Admittedly, the insurance coverage is only to the driver of the 6th respondent. Since there was no proof to show that the deceased was employed by the 6th respondent and since the said Raghavendra Lorry Service engaged the deceased for driving the lorry and since the 6th respondent failed to prove that the deceased is covered by the insurance, the appellant is not liable to pay any compensation to the claimants for the death of the deceased. This Court, while admitting the appeal, as it was represented that the entire amount is already deposited, by order dated 28.03.2002 in CMP No.6467 of 2002, granted stay of operation of the order under appeal on condition of the respondents-claimants being permitted to withdraw half of the amount deposited without furnishing any security. It is stated that the respondents-claimants already withdrew half of the amount as per the orders of this Court. Accordingly, the appeal is allowed to the extent of the liability of the appellant only. Since it is stated that the respondents-claimants have already withdrew half of the amount deposited by the appellant, the appellant is permitted to withdraw the remaining half of the amount lying with the Tribunal. The appellant is also at liberty to proceed against the 6th respondent for recovery of the amount already withdrawn by the respondents- claimants. Parties do bear their own costs in this appeal. ___________________________ GHULAM MOHAMMED, J. 8th July 2010 CVRK [1] 2007 (4) ALD 85 (SC)