IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 4TH OCTOBER 2011 / 12TH ASWINA 1933 MFA.No. 35 of 2006() -------------------- W.C.C.28/2002 of Commissioner for Workmen's Compensation , KANNUR. APPELLANT(S): 2ND OPPOSITE PARTY: ------------------------------------------------------ THE MANAGER, NATIONAL INSURANCE COMPANY LIMITED, MOODBIDRI NOW REPRESENTED BY ITS DEPUTY MANAGER, KOCHI REGIONAL OFFICE, AJAY VIHAR, M.G.ROAD, KOCHI-16. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE RESPONDENT(S): APPLICANTS AND 1ST OPPOSITE PARTY: ------------------------------------------------- 1. YASHODA S.SHETTY, W/O. LATE SREEDHARA SHETTY, MUTTA RAILWAY GATE, MANGALPADY P.O., VIA. UPPALA, KASARAGOD. 2. SREYA, D/O. LATE SREEDHARA SHETTY, -DO- -DO-. 3. YAMUNA, W/O. LATE THYAMPANNA SHETTY, -DO- -DO-. 4. MISS SHEFALI BELLAL, D/O. K. RAJAVARMA BELLAL, SWAYARIJITH, KUNTHIKAN BEJAI, MANGALORE. ADV. SRI.T.SETHUMADHAVAN FOR R1,2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A.(W.C.C.) No.35 of 2006 ----------------------------------------------- Dated 4th October, 2011. J U D G M E N T K.M.Joseph, J. The appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act. The Commissioner has ordered payment of Rs.4,07,700/- as compensation with 12% interest. The only substantial question of law pressed in the appeal reads as follows : “Whether the opposite party II is liable to indemnify the liability of the opposite party I ?” 2. We heard learned senior counsel for the appellant and the learned counsel appearing for the claimant. The finding entered by the Commissioner with regard to this question is as follows : “Issue No.5 : The opposite party II has denied its liability to indemnify the liability of the opposite party I to pay compensation to the applicants on the ground that the opposite party I had not paid premium to cover the risk of the cleaner. The opposite party II produced Ext.R1 (certified true copy of the policy) only to substantiate the contention. On verification of the R1 document it is seen that the opposite party II had collected premium to cover MFA 35/06 2 employees also. Cleaner is also an employee. Therefore the contention of the opposite party II that the opposite party I had not paid premium to cover the risk of the cleaner is not acceptable. The opposite party II has cited the ruling in Case No.71, reported in KLT.2003(3) short notes, in support of their contention. In that case it was held that a cleaner would not come under the description of “any person” or “passengers”. Here in this case premium is collected to cover “employees”. Therefore, the ruling in the cited case is not relevant in this case. The opposite party II has contended that the cleaner was not supposed to travel in the tourist bus. The owner of the tourist bus is the best person to decide the categories of employees who should travel in his vehicle. The opposite party I has not contested the claim of the applicants. The opposite party II has admitted that the vehicle of the opposite party I was insured with the opposite party II at the time of accident. I, therefore, hold that the opposite party II is liable to indemnify the liability of the opposite party I to pay compensation to the applicants.” 3. Learned senior counsel also brought to our notice the insurance policy. We perused it. Learned senior counsel for the appellant would in fact submit that the receipt of Rs.30/- as premium was only intended to enlarge the liability of the MFA 35/06 3 insurer with regard to the compensation payable to the employees who are otherwise covered under Section 147 of the Motor Vehicles Act (for short, 'the Act') with regard to a claim under the Workmen's Compensation Act. In other words, even though compensation, when it is claimed by the employees indicated in the proviso to Section 147 may be unlimited, if a claim is raised under the Act it would have been the claim payable under the Workmen's Compensation Act. But, it is this liability which is enlarged by the receipt of Rs.30/- he contends. He fairly does not dispute that the receipt of basic premium of Rs.5,523/- and Rs.110/- is intended to cover the employees indicated in the proviso to Section 147 of the Act. Per contra, learned counsel for the respondent would submit that receipt of Rs.30/- as premium would cover a cleaner. It is found that the cleaner is an employee. 4. We are of the view that the view taken by the Commissioner does not appear to be incorrect or illegal. As far as the employees falling within the purview of the proviso to Section 147 of the Act is concerned, admittedly, separate premium has been collected. It is not indicated in the contract MFA 35/06 4 of insurance that Rs.30/- is collected by way of increasing the liability of the insurer in regard to the employees who are already covered by the proviso to Section 147 of the Act. We are dealing with the case of a cleaner working in a tourist bus. It is true, as pointed out by the learned senior counsel that the employer was ex parte. There is no material also as such brought on record otherwise to indicate that the receipt of Rs.30/- as premium relates to the employees covered by Section 147. Even though the learned senior counsel would pray that the matter may be remitted back, we do not think it necessary to allow such a request. In such circumstances, we confirm the order and dismiss the appeal. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.