IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 MFA.No. 27 of 2010() ----------------------------- WCC.239/2004 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY -------------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD. REGINAL OFFICE, METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STAITON ERNAKULAM, REPRESENTED BY ITS DULY AUTHORIZED OFFICER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): 1ST OPPOSITE PARTY AND APPLICANT ----------------------------------------------------------------------------------- 1. P.C.JOHN, PULLANKARAN HOUSE, CHAIPINKUZHY P.O., CHALAKUDY. 2. VARKEY, S/O. VARKEY, MANJAL HOUSE, VETTIKUZHY DESOM, KUTTICHIRA VILLAGE, CHAIPINKUZHY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. R2 BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.NO. 27/2010 ORDER ON I.A.307/2010 IN M.F.A.NO.27/2010 DISMISSED 9/11/2010 SD/- M.N.KRISHNAN,JUDGE /TRUE COPY/ sts P.A.TO.JUDGE M.N. KRISHNAN, J. ........................................... M.F.A.NO.27 OF 2010 ............................................. Dated this the 9th day of November, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Thrissur in W.C.C.No.239/2004. The claimant, a headload worker, sustained injuries in a road accident while he was waiting on the side of a road for his turn to get the work of unloading and at that time a lorry came in a rash and negligent manner and a stone fell on him resulting in injuries to him. The learned Workmen's Compensation Commissioner awarded him a compensation of Rs.50,819/= and directed the insurance company to pay the amount. It is against that decision the insurance company has come up in appeal. 2. The question of law which I formulated is whether in the light of the averment in the petition a petition under the Workmen's Compensation At is maintainable or not. 3. Heard the learned counsel for the appellant as well as the respondents/applicant. The learned counsel for the insurance company had made available before me a copy of : 2 : M.F.A.NO.27 OF 2010 the petition filed which would definitely show that he was injured not in the course of employment by anybody but while waiting for his turn to do the work. He is only a loading and unloading worker. He cannot be the employee of the owner of the lorry and the cause of accident is as follows: “The cause of injury was that on 8.12.2003 at about 3.15 p.m while the applicant was standing by the side of vehicle No. KL-8/L-1166, tempo goods vehicle owned by the opposite party awaiting his turn for engagement for unloading the goods at the premises of one Pauly at Vazhakkala, a stone piece struck at the left knee of the applicant while the vehicle KL-8/L-1166 was driven at a great speed to enter the said Pauly's residential premises”. 4. So admittedly he was only to unload the goods at the house of Pauly. He is a registered headload worker. Therefore by any stretch of imagination one cannot hold him as a worker under the owner of the lorry and therefore there is no employer employee relationship and so the injury sustained by him cannot be in the course of : 3 : M.F.A.NO.27 OF 2010 employment so as to attract the provisions of the Workmen's Compensation Act and therefore, I hold that the application filed before the Workmen's Compensation Commissioner is not maintainable in law but it can be stated that he had sustained injuries arising out of the use of a motor vehicle and according to him, in the petition it was while standing in the road. Therefore there will not be any inhibition in entertaining the application under the provisions of the Motor Vehicles Act. 5. So reserving the right of the claimant to move under the provisions of the Motor Vehicles Act, the order passed by the Workmen's Compensation Commissioner is set aside and the said application is dismissed. If any amount is deposited by the insurance company, let it be reimbursed to them on appropriate application. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 4 : M.F.A.NO.27 OF 2010 : 5 : M.F.A.NO.27 OF 2010 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 8th day of October, 2010. J U D G M E N T