IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B. KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 12TH JUNE 2008 / 22ND JYAISHTA 1930 MFA.No. 157 of 2002() --------------------- WCC.20/1998 of W.C.C.,KOTTAYAM .................... APPELLANT: 1ST OPPOSITE PARTY: ------------------------------ ABDUL KHADER KUNJU MUHAMMED, S/O.ABDUL KHADER, PAZHAYAPURAYIL HOUSE, THAZHATHANGADY P.O., KOTTAYAM. BY ADV. SRI.T.P.VARGHESE SRI.THOMAS T.VARGHESE RESPONDENTS: APPLICANTS & 2ND OPPOSITE PARTY: --------------------------------------------- 1. THANKAMMA, MANALIPARAMBUYALIL, PARAPPADAM KARA, VELOOR VILLAGE, KOTTAYAM. 2. BINOY GEORGE, MANALIPARAMBUYALIL, PARAPPADAM KARA, VELOOR VILLAGE, KOTTAYAM. 3. BIJU GEORGE, MANALIPARAMBUYALIL, PARAPPADAM KARA, VELOOR VILLAGE, KOTTAYAM. 4. THE MANAGER, NATIONAL INSURANCE COMPANY, KOTTAYAM BRANCH. BY ADV.SRI.MATHEW JOHN FOR R3 BY ADV. SRI.LAL GEORGE FOR R4 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/06/2008 ALONG WITH MFA NO.435/2002, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.809/2002 IN MFA.NO.157/2002 DISMISSED SD/= J.B. KOSHY, JUDGE. 12.6.2008. SD/= P.N. RAVINDRAN, JUDGE. /TRUE COPY/ cl J.B. KOSHY & P.N. RAVINDRAN, JJ. ---------------------------------------------------- M.F.A.NOS. 157 & 435 OF 2002 ---------------------------------------------------- Dated this the 12th day of June, 2008. JUDGMENT Koshy, J: These two appeals are filed by the employer as well as the insurance company against the same order of the Workmen's Compensation Commissioner. Sri. Lal George, Advocate, appears for the insurance company and Sri.T.P. Varghese, Advocate, appears for the employer. Sri. Mathew John, Advocate, who has filed vakalath for the third respondent in M.F.A.No.157 of 2002 appears for the claimants. The application was filed by the mother and brothers of the deceased employee. According to them, while the deceased was employed as a helper/porter in Bus No.KEK 446 on 14.10.1996, the bus went into a pit and capsised and in that accident, 4 persons died, two were passengers and two were employees. Exts.A3 F.I. Statement, A4 scene mahazar and A5 charge sheet were produced to prove the same. But the employer filed a written statement stating that his bus was not involved in the accident. He further stated that the deceased was not employed by him. But from the F.I. Statement, it can be seen that the deceased was an MFA.NOS.157 & 435/02. . 2 employee of Bus No.KEK 446. It is true that all employees are not covered by the welfare fund scheme. Apart from driver and conductor other workers are employed by the employer. But usually for welfare fund scheme only driver and conductor are covered. The Tribunal found that the deceased was employed by the first opposite party. Considering the evidence adduced in the case, we are of the view that it is a finding of fact based on evidence and no interference is required. The contention of the insurance company is that claim was filed under the Workmen's Compensation Act as the accident occurred in the course of employment and it is arising out of the employment. Being an employee, the deceased is not a third party or a passenger and employees can be covered only if they are covered under the Workmen's Compensation Act. Ext.R1 policy shows that only conductor and driver are covered, that too only to the extent of workmen's compensation liability. The deceased employee was not covered by the policy. In this connection we refer to the Apex Court decision in Ramashray Singh v. New India Assurance Company Ltd . & others (AIR 2003 SC 2877=AIR SCW 3601). Therefore the insurance company is liable to pay the amount awarded. On the facts of the case, we are of the opinion that no MFA.NOS.157 & 435/02. . 3 grounds are made out to pay the penalty. The appellant in M.F.A.No.157/2002 is not liable to pay the penalty amount. The compensation awarded was Rs.2,16,910/=. The insurance company deposited the amount with interest. An interim stay was granted for disbursing the amount. On the facts of the case, out of the deposit made, we direct the Commissioner to release Rs.50,000/= to the 1st respondent/mother for the time being and that amount can be recovered by the insurance company from the employer/1st opposite party/the insured. The claimant can realise the balance amount from the employer. Both the appeals are disposed of as above. J.B. KOSHY, JUDGE. P.N. RAVINDRAN, JUDGE. cl MFA.NOS.157 & 435/02. . 4 J.B. KOSHY & P.N. RAVINDRAN, JJ. M.F.A.NOS. 157 & 435 OF 2002 JUDGMENT 12th day of June, 2008.