APHC010254862012 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3460]

(Special Original Jurisdiction)

WEDNESDAY ,THE FIFTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY CIVIL MISCELLANEOUS APPEAL NO: 655/2012 Between:

The National Insurance Co Ltd ...APPELLANT AND Tella Lakshmaiah 3 Ors and Others ...RESPONDENT(S)

Counsel for the Appellant:

1. S AGASTYA SHARMA Counsel for the Respondent(S):

1. V R AVULA

2. NIMMAGADDA REVATHI The Court made the following:

HON’BLE SRI JUSTICE NYAPATHY VIJAY C.M.A.NO.655 of 2012

JUDGMENT:

1. The present Civil Miscellaneous Appeal is filed against the order dated 06.08.2010 in W.C.No.41 of 2006 passed by the Commissioner for Workmen’s Compensation and Assistant Commissioner of Labour, Guntur, Guntur District.

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

As per the claim application, the Claimant was working as Cleaner under Opposite Party No.1 in the Mini Lorry bearing No.AP 07X 9613 which was insured with Opposite Party No.2. On 29.09.2005 the deceased Tella Koteswara Rao @ Kotaiah died in an accident due to collusion with another lorry. A case in Cr.269 of 2005 was registered by the Guntur Rural P.S. As the deceased was aged 20 years and was getting wages of Rs.2,500/- per month besides batha, claim application was filed claiming compensation of Rs.4,00,000/-.

3. O.P.No.1 i.e. employer filed counter admitting the employment of the Claimant as Cleaner and the accident that occurred on

29.09.2005.

4. O.P.No.2 i.e. insurance company filed its counter denying the coverage of insurance as no extra premium was paid by the opposite party No.2 to cover the risk of the cleaner.

5. The Commissioner framed the following issues for consideration:-

1) Whether the deceased was a workman as per the provisions of the Act and he died due to personal injuries he received in an accident arising out of and in the course of his employment? Or not?

2) Amount of compensation payable to the applicant? And

3) Who are liable to pay the compensation?

6. In the course of evidence, the Claimant No.2/Mother of the deceased was examined as A.W.1 and also examined one Bulla Jakraiah/Driver of the lorry as A.W.2 to substantiate their claim and got marked Exs.A.1 to A.9. One Sri Kiran Pushparaju was examined as R.W.1 and Ex.B.1 Insurance policy was marked.

7. The Commissioner taking into consideration the evidence on record awarded compensation of Rs.2,73,093/- making the Opposite parties 1 and 2 jointly and severally liable. Hence, the present Appeal by the Insurance Company.

8. As the notice to Respondent No.4 i.e. owner of the vehicle was not served in the Appeal, this Court on 20.07.2016 passed the following order:-

“Learned counsel for petitioner(s)/appellant(s) is permitted to take out personal notice as against respondent No.4 through Registered Post with acknowledgment due and file proof of service within four (04) weeks. Failing which, petition/appeal shall stand dismissed without reference to the Court as against respondent No.4.”

9. As the order was not complied with, the appeal against the owner/O.P.No.1 stood dismissed as per the endorsement made by the Registry. No application was filed seeking to set-aside the default order.

10. As the appeal against the owner/O.P.No.1 stood dismissed for non-compliance of the above quoted peremptory order, the order of the Commissioner making owner/O.P.No.1 jointly and severally liable to pay the compensation had attained finality vis-à-vis the owner/O.P.No.1/Respondent No.4. Once the “joint and several liability” of appellant stood crystallised in view of dismissal of the appeal against Respondent No.1/owner, the present appeal cannot be entertained any further as no favourable order can be passed in favour of appellant as that would lead to inconsistent orders.

11. Therefore, the Appeal having been dismissed against the Respondent No.4, there is no merit in the contention of the Appellant and the Appeal is dismissed. There sha