IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 MFA.No. 199 of 2006() --------------------------------- WCC.210/2004 of COMMISSIONER WORKMEN'S COMPENSATION,THRISSUR .................... APPELLANT(S): 2ND OPP. PARTY ------------------------ NATIONAL INSURANCE COMPANY LTD., DIVISIONAL OFFICE, THRISSUR. BY ADV. MR.RAJAN P.KALIYATH RESPONDENT(S): APPLICANT AND OP-1 ------------------------ 1. K.N.RAMAKRISHNAN, S/O.NARAYANAN, KURUMBOOR HOUSE, THIPPILASSERY DESOM, PERUMBILAVU VILLAGE. 2. JOY, S/O.RAPPAI, ARACKAL HOUSE, CHITTATTUKARA, GURUVAYUR. R1 BY ADV. MR.DILIP J. AKKARA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.2148/2006 IN MFA. NO.199/2006 DISMISSED 21/12/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 199 OF 2006 = = = = = = = = = = = = = = = Dated this the 21st day of December, 2009. J U D G M E N T This is an appeal preferred against the award of the Workmen's Compensation Commissioner, Thrissur in WCC 210/04. The claimant a loading and unloading worker is alleged to have sustained serious injuries in a road accident and the Workmen's Compensation Commissioner has awarded him a compensation of Rs.18,503/-. Dissatisfied with the same and the correctness of the award the insurance company has come up in appeal. 2. Heard the learned counsel for the appellant as well as the claimant. Now the crux of the matter depends upon the following facts. First of all, the insurer should be the owner of the vehicle, secondly the insurer should be an employee under the insured so as to attract the definition of employee under the Workmen's Compensation Act. Thirdly, with respect to policy he must be a person accompanying the goods as a representative of the owner thereby the statutory M.F.A 199 OF 2006 -:2:- policy covers the risk of such persons. Lastly, regarding the nature of injuries and whether there is any loss of earning capacity and inadequacy of compensation. 3. Now a reading of the definition of Workmen's Compensation Act does not show that the claimant was an employee of the insurer. Only if it is established then the subsequent question arises for consideration. Therefore the whole matter has to be again looked into to render a finding on the question which I have referred to earlier. Since the loss of earning capacity is also challenged it is necessary that the person is to be referred to a Medical Board to ascertain the loss of earning capacity as envisaged under the decision reported in Vanajakshan v. Joseph (2003 (2) KLT 462 (FB). Therefore the award under challenge is set aside and the matter is remitted back with a direction to permit all the parties to produce documentary as well as oral evidence in support of their respective contentions and then dispose of M.F.A 199 OF 2006 -:3:- the matter in accordance with law. The Workmen's Compensation Commissioner is directed to issue notice to the parties fixing the date of appearance. The MFA is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-