IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 MFA.No. 46 of 2006() ----------------------------- WCC.28/2003 of COMMISSIONER FOR WORKMENS COMPENSATION,THRISSUR .................... APPELLANT: 2ND OPPO.PARTY. ----------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, PALAKKAD, REPRESENTED BYITS ADMINISTRATIVE OFFICER REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI 18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): APPLICANTS. -------------------------- 1. VELLACHI, W/O.AYYAPPAN, PARAYAMPPOTTA, RAKKANTHI, PANNIYANKARA, VADAKKUMCHERRY, PALAKKAD. 2. BINDU, W/O.KUNJU, PARAYAPOTTA, RAKKANTHI, PANNIYANKARA, VADAKKUMCHERRY, PALAKKAD. 3. C.P.AVARACHAN, S/O.PHILIPOSE, CHIRAMBATT, PANDALAMPADAM, PANNIYANKARA PO, PALAKKAD. SRI.D.ANIL KUMAR FOR R2 SRI.BABU S. NAIR FOR R3 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/09/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.453/2006 IN MFA. NO.46/2006 DISMISSED 05.09.2008 SD/- J.B.KOSHY, JUDGE SD/- THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE tss J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------- M.F.A.NO.46 OF 2006 () ----------------------------------- Dated this the 5th day of September, 2008 J U D G M E N T KOSHY,J. Husband of the 2nd appellant, who is stated to be a loading and unloading worker employed in Neelippara Quarry while loading granite into the trailor attached to the tractor, fell down with the granite and he was immediately taken to the hospital and later he died in the hospital. His mother and wife filed application for compensation before the Commissioner for Workmen's Compensation claiming that the deceased was employed by the owner of the lorry and since he was engaged in loading the granite pieces into the trailer, they are entitled to compensation as the accident occurred during the course of employment. The owner of the tractor, 3rd respondent in this appeal though received notice did not MFA.46/06 2 respond to the notice and hence was declared ex parte. Wife of the deceased gave evidence to the effect that he was employed by the lorry owner. In the application, it was averred that he was a member of the local C.I.T.U. and the accident occurred during the course of employment while loading granite. Contention of the Insurance company is that it is not proved that he was employed by the lorry owner. In any event, quarry workers were not insured and as per the insurance policy, only driver and one worker were insured. Liability for compensation to the Insurance company in Motor vehicles cases is only when the accident occurred because of the use of the motor vehicle and for the death due to the heart attack caused to the workman employed in the quarry, dependents cannot claim compensation from the Insurance company and such risks are not covered by the policy. Whether the accident arose due to the use of the motor vehicle, whether deceased employee was covered under the policy etc. are to be decided while considering the liability for the Insurance company. On going through the evidence as well as the claim statement, we are of the opinion that there is no clear evidence regarding who employed the deceased, MFA.46/06 3 whether he was employed by the quarry owner or by the owner of the vehicle etc. The manner of the accident was also not proved. None of the co-employees were examined. The F.I.R shows that accident occurred on 29.10.2001 while he was loading granite into the tractor. From the F.I.R alone, it cannot be stated that he was employed by the lorry owner. Further, the owner of the quarry was also not made a party. In these circumstances, we are of the view that for deciding the matter, further evidence is necessary. We set aside the award and remand the matter. The owner of the lorry was declared ex parte before the Commissioner. But there is appearance for him before this Court. Therefore, if the owner of the lorry (3rd respondent in this appeal) pays a costs of Rs.5,000/- to the applicants (respondents 1 and 2 in this appeal) within two months from today, the ex parte order against him shall stand set aside and he will be free to file written statement and adduce evidence to prove his claim. Claimants are also allowed to implead the quarry owner. The Commissioner has to decide who was the real employer of the deceased and whether the insurance company can be made liable to pay compensation as per the conditions of the policy. MFA.46/06 4 If the accident arose during the course of employment, the actual employer is liable. Only if the employer has taken insurance policy and the terms of the policy shows workman's risk, insurance company will be liable. So, without expressing any opinion regarding the merits of the matter, we remand the matter. Since we are remanding the matter, the amount already paid shall be refunded to the Insurance company. The impugned order is set aside and the parties should appear before the Commissioner for Workmen's Compensation on 28.10.2008. All relevant issues in this case should be reconsidered by the tribunal. All parties are allowed to adduce further evidence. Appeal is allowed by way of remand. J.B.KOSHY, JUDGE THOMAS P. JOSEPH, JUDGE prp J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 5th September, 2008