The claimant, as a loading and unloading worker, is covered under the amended definition of 'third party' in the Motor Vehicles Act, making the insurance company liable for compensation.

JUDGMENT:-

The present Civil Miscellaneous Appeal is filed against the order dated 16.04.2008 in W.C.No.159 of 2005 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Kadapa.

2. The facts leading to filing of the present Appeal are as under:-

The claimant was working as loading and unloading labour/Coolie on Tractor-Trailer bearing No.AP 04-C-5763 and 5764 respectively owned by O.P.1. On 01.07.2004 at about 10.00 a.m. the claimant and other coolies were proceeding on the Tractor-Trailer for loading and unloading mud in the land of O.P.1 and reached near Gajji Banda Botto of Bakkannagaripalli Village, the driver drove the Tractor in a rash and negligent manner with high speed and lost control over the vehicle due to which the Tractor-Trailer turned turtle. As a result, the claimant and other coolies received grievous injuries and were shifted to Government Hospital, Vempalli. The claimant sustained dislocation of right upper knee and left knee. The claimant was referred to Government Hospital, Kadapa and from there to S.V.R.R.Hospital, Tirupati where doctors found that the claimant’s left rami of pelvis and right rami of pelvis fractured and urine bladder also was damaged and a pipe was inserted in his penis and even now the claimant is passing urine through pipe. It was also stated that he incurred Rs.30,000/- towards medical expenses.

3. It is also the case of the claimant that at the time of accident, he was earning Rs.4,000/- per month and he was aged 25 years. As the claimant was unable to drive any vehicle and lost his livelihood, he filed claim application seeking compensation of Rs.3,00,000/-. It was pleaded that an amount of Rs.30,000/- was spent towards medical expenses, hospital charges, transportation etc. It was also pleaded that the Auto was insured with O.P.No.2 vide policy No.611200/31/05/01904 valid from 25.11.2005 to 24.11.2006.

4. Opposite Party No.1/owner remained ex parte.

5. Opposite Party No.2/the insurance company filed its counter disputing the claim, the nature of injuries and the liability to pay compensation. It is also contended that as per F.I.R., the Tractor-Trailer was hired by one G.Sreenivasulu Reddy to one Sri Ram Naik who in turn engaged 8 coolies. Thus, there is a clear violation of terms and conditions of policy and hence, insurance company cannot be liable to indemnify the liability of the O.P.No.1.

6. On the basis of the pleadings, the Commissioner framed following issues:

“1. Whether the applicant is a workman as per the provisions of the Workmen’s Compensation Act, 1923 and he met with accident and received grievous fracture injures arising out of and in the course of his employment ?

2.What is the age of the applicant at the time of accident?

3. What are the wages paid to the applicant at the time of accident?

4. What is the quantum of compensation payable to the applicant?

5. Who are liable to pay the compensation to the applicant and to what relief?

7. In the course of evidence, claimant himself was examined as A.W.1 and Dr. B.Narendra Dev was examined as A.W.2 and marked Exs.A.1 to A.5 in support of his claim. On behalf of the Respondents, Administrative Officer of O.P.2 examined as R.W.1 and Ex.B.1 policy was marked.

8. The Commissioner, after taking into consideration the evidence let in and by taking the age of the claimant as 30 years and percentage of loss of earning capacity as 40% by fixing monthly wages @ Rs.2568.75/- per month, awarded an amount of Rs.1,28,220/- besides stamp duties of Rs.500/- to be paid by Opposite Parties 1 and 2 jointly and severally. Hence, the present appeal is filed by the insurance company.

9. Heard Sri Kanaka Sundar Ganta, learned counsel for the Appellant and Sri L.J. Veera Reddy, learned counsel for the Respondents.

10. As the notice to Respondent No.2 i.e. owner of the vehicle was not served in the Appeal, this Court on 19.09.2011 passed the following order:-

“The counsel for appellant/s is/are permitted to take out fr