IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 MFA.No. 930 of 2002(D) --------------------------------- WCC.166/1999 of COMMISSIONER FOR WORKMEN'S COMPENSATION,THRISSUR .................... APPELLANT: 2ND OPP. PARTY: ---------------------- NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL OFFICE, PDC BANK BUILDING, SULTHAN PET, PALAKKAD. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS: APPLICANT AND OPP.PARTY-1: ------------------------- 1. K.VIJAYAN, S/O. LATE KUNJAN, MELEKALATHIL HOUSE, KOXAZHY POST, CHELAKKARA. 2. C.K.SIVADASAN, 1/174, CHUNGATH HOSUE, PAZHAYANNUR, THRISSUR. BY ADV. SRI.P.V.CHANDRA MOHAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A NO. 930/2002 ORDER ON CMP. NO. 5580/2002 IN MFA. NO.930/2002 DISMISSED 17.06.2008 SD/- P.N.RAVINDRAN , JUDGE /TRUE COPY/ P.S. TO JUDGE tss J.B.Koshy & P.N.Ravindran, JJ. ===================== M.F.A.No.930 of 2002 ===================== Dated this the 17th day of June, 2008. JUDGMENT Koshy,J. The Insurance Company filed this appeal challenging the award of the Workmen's Compensation Commissioner. The first respondent in this appeal filed an application before the Commissioner claiming compensation contending that while he was driving vehicle No.KL-8/M-7130 TVS XL Super owned by the first opposite party, he sustained injuries on 13.4.1999 by accident due to skidding of the vehicle. According to him, he sustained fracture on his left patella and other bodily injuries. He was awarded a compensation of Rs.79,864/-. According to the appellant Insurance Company, the applicant is not entitled to the compensation at all as he was not employed as a driver as the vehicle involved is a Moped having registration No.KL-8/M 7130 and nobody will engage a driver for Moped. The appellant was impleaded as the insurer of the Moped. Under the policy taken MFA 930/02 -: 2 :- by two wheeler, the driver was not covered under the insurance policy and there is only a third party liability and workmen compensation liability for the driver. Admittedly the injured is not a third party. It is the contention of the claimant that he was employed by the owner of the vehicle and the accident caused during the course of employment. The liability of the employer towards the person driving ithe vehicle has to be reimbursed. The Insurance Company has got a further contention that the loss of earning capacity was not assessed by the Doctor as provided under the Workmen's Compensation Act. Even though the Commissioner has to assess the loss of earning capacity under Section 4(1)(i) on the basis of earning capacity as assessed by the medical practitioner, the loss of earning capacity can be assessed by the medical practitioner only in proportion to the loss of earning fixed as per the first Schedule as mandated by explanation to that section. Therefore, the fixation of loss of earning capacity as 32% is illegal. But this aspect was not considered by the Commissioner. 2. We remand the matter for fresh consideration. The Commissioner shall consider the following aspects: MFA 930/02 -: 3 :- (1) Whether the claimant was the workman and he was employed by the first opposite party at the relevant time. (2) Even if he was an employed driver, whether the accident occurred during the course of employment and it arises out of employment. (3) What is the loss of earning capacity suffered by the claimant as per the provisions of the Workmen's Compensation Act. (4) Even if all the contentions are accepted whether the policy issued by the appellant Insurance Company cover liability of the claimant and whether the Insurance Company can be made liable or whether the employer alone was liable. 3. The Commissioner shall post the case on 18.8.2008. The claimant and both opposite parties are allowed to adduce further evidence, if any. The Commissioner also can send the applicant for medical examination by the Medical Board for assessing the loss of earning capacity in accordance with the provisions of the Workmen's Compensation Act. Already Rs.10,000/- was allowed to be disbursed by the applicant. Till further orders are passed that should not be recovered. The excess amount deposited MFA 930/02 -: 4 :- can be withdrawn by the Insurance Company and if ultimately compensation is awarded to be paid by the Insurance Company, the Insurance Company can deposit the balance amount with proportionate interest. The appeal is allowed by way of remand. J.B.Koshy, Judge. P.N.Ravindran, Judge. ess 19/6