IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 2ND MARCH 2010 / 11TH PHALGUNA 1931 MFA.No. 274 of 2009(G) --------------------- WCC.167/2003 of W.C.C.,THRISSUR .................... APPELLANT(S)/ 3RD OPPOSITE PARTY: --------------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED PATTAMBI NOW REPRESENTED BY ITS ASSISTANT MANAGER REGIONAL OFFICE , METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW RESPONDENT(S)/ APPLICANT & OPPOSITE PARTIES 1 AND 2: ------------------------------------------------------------------------- 1. V.RAJKUMAR, S/O. VELAYUDHAN, KAKARAKUNNU HOUSE, VADAKKETHARA, PAZHAYANNUR ,THRISSUR DISTRICT. 2. KRISHNADASAN, S/O. APPUKKUTTAN NAIR T/33, KOOTTALA PATHIRIPALAM, MANNUR PO,PALAKKAD. 3. P.RAMAKRISHNAN, S/O. KORAN, PADINJAREPATTUTHODY HOUSE, AMBEDKAR COLONY NELLAYA PO, PALAKKAD. ADV. SRI.P.V.CHANDRA MOHAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 274 OF 2009 = = = = = = = = = = = = = = = Dated this the 2nd day of March, 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.167/03. The applicant in the case has sustained some injuries on account of an accident while he was driving an auto rickshaw. The case projected by the claimant is that he was an employee under the first respondent in the case and the 2nd respondent was the previous owner and R3 is the insurance company. So the case of the claimant itself is that he is an employee under the first respondent in the case. The finding of the Compensation Commissioner is that there is a relationship of an employee-employer between the 2nd respondent and the claimant. It is fundamentally wrong. It cuts at the root of the case. Therefore that requires reconsideration. M.F.A.. 274 OF 2009 -:2:- 2. The learned counsel for the respondent would contend before me that the vehicle was transferred by the 2nd respondent in favour of the first respondent and the registration was also changed but before the change of insurance the accident took place and therefore by virtue of the deeming provisions u/s 157(1) of the M.V.Act it has to be considered as a valid policy. If factually it is correct then certainly the insurance company will have the obligation to pay the amount. But if the policy is taken in the name of the previous owner after the change of registration in the name of the first opposite party then so many defences may be available to the insurance company which cannot be shut out. Therefore on that point the award is liable to be interfered with. 3. Secondly the question of disability or in other words loss of earning capacity. Loss of earning capacity is to be assessed as per the full Bench ruling of this Court reported in Vanajakshan v. Joseph (2003 (2) KLT 462 (FB) which says that loss of earning capacity is to be M.F.A.. 274 OF 2009 -:3:- assessed taking into consideration the inability to do all the work which one is capable of doing and not in relation to a particular work which a person was doing. It is in that angle the disability has to be assessed and compensation has to be worked out. If the materials are available that also may be considered or otherwise loss of earning capacity in the light of the Full Bench decision may be obtained and the matter be decided. 4. Thirdly on the question of interest. Since the matter is going back let that question be reconsidered in the light of the available decisions on the date of decision of the case. I say so because at present this Court had taken the view that in the light of the Constitution Bench ruling reported in Pratap Narain Singh Deo v. Shrinivas Sabata (AIR 1976 SC 222) which holds that interest is due from the date of accident. So the award under challenge is set aside and the matter is remitted back to the Court for fresh consideration and all concerned are permitted to produce documentary as well as oral evidence in support of M.F.A.. 274 OF 2009 -:4:- their respective contentions and let the matter be disposed of in accordance with law. The Compensation Commissioner shall fix a date of appearance and issue notice to the parties for further proceeding in the matter. Let there be an expeditious disposal of the case. M.N. KRISHNAN, JUDGE. ul/-