IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 MFA.No. 201 of 2007(A) ------------------------------ WCC.158/2001 of W.C.C.,THRISSUR .................... APPELLANT/3RD OPPOSITE PARTY : ------------------------------------------- NATIONAL INSURANCE CO.LTD., COIMBATORE, REP. BY THE MANAGER, KHO, PADMA JN, M.G.ROAD, ERNAKULAM COCHIN - 682 035. BY ADV. SRI.E.M.JOSEPH RESPONDENTS/APPLICANT & 2ND OPPOSITE PARTY : ------------------------------------------------------------------ 1. NABEESA, AGED 63, W/O.SRI.MOHAMMED, PULIKAL HOUSE, CHIMMINI DAM, THRISSUR. 2. COCHIN MALABAR ESTATE AND INDUSTRIES, CHIMMINI ESTATE, PALAPPILLY, THRISSUR. ADV. SRI.E.K.NANDAKUMAR - R2 SRI.A.K.JAYASANKAR NAMBIAR - R2 SRI.K.JOHN MATHAI - R2 SRI.P.BENNY THOMAS - R2 SRI.SHEJI P.ABRAHAM - R1 SRI.E.M.JOSEPH, SC (INS) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.No. 201 of 2007(A) ORDER ON I.A.NO.2776 OF 2007 IN M.F.A.NO.201 OF 2007 DISMISSED 25.09.2008 SD/- M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N.KRISHNAN, J. -------------------------- M.F.A. No. 201 OF 2007 --------------------- Dated this the 25th day of September, 2008 JUDGMENT This appeal is preferred against the award passed by the Workmen's Compensation Commissioner, Thrissur, in W.C.C. No.158/01. The applicant before that court was a workman employed by the Cochin Malabar Estate. It is submitted that while she was travelling in the vehicle, namely the tractor, the vehicle capsized and she sustained injuries. The factum of employment is not denied. Similarly the employer- employee relationship is also not denied by the 2nd opposite party. The Workmen's Compensation Commissioner, on consideration of the entire materials, arrived at a decision that the applicant is entitled to a sum of Rs.77,922/- with 12% interest from the date of accident. It also held that since the vehicle involved in the accident is validly insured with the 3rd opposite party, it is liable to indemnify the 2nd opposite party. It is against that decision, the Insurance Company has come up in appeal. 2. Learned counsel for the Insurance Company would strongly contends that the applicant was a gratuitous passenger in a tractor, which is not even a goods carriage, and the policy issued by the Insurance Company does not cover the risk of such passengers so as to indemnify the owner of the vehicle. It is a matter which requires consideration. Since MFA No.201/07 2 that point has not been dealt elaborately by the Workmen's Compensation Commissioner, it has to be reconsidered. Learned counsel for the employer would contend that there is a policy taken under the Workmen's Compensation Act to cover the risk of employees under the Act and it was current at the time of the accident and therefore under that policy also, the applicant is entitled to get compensation from the Insurance Company. Unfortunately this fact has not been considered by the Workmen's Compensation Commissioner. That also is to be considered by the Workmen's Compensation Commissioner. When such a consideration is necessary, it is argued by the learned counsel for the Insurance Company that under the Workmen's Compensation Act when the owner notifies certain acts as dangerous and warns the employer against the same and if an injury is sustained, it will not be liable to indemnify. It is also a matter that has to be considered. In other words, the questions that may arise for consideration are as follows: (i) Whether the policy issued with respect to the tractor will cover the risk of a person who was travelling in the said vehicle. (ii) Whether the accident policy taken by the employer would cover the risk of the applicant. (iii) Whether there is any breach of obligation by the employee in spite of notice by the employer to do so. MFA No.201/07 3 3. Learned counsel for the employer also contends about the entitlement of interest from the date of accident. It is also a matter that can be considered in the light of the latest binding decision on that point. Therefore, the award under challenge is set aside and the matter is remitted back to the Workmen's Compensation Commissioner for considering the above questions in accordance with law. Parties are permitted to have additional pleadings as well as production of additional documents with additional oral evidence necessary for proper determination of the case. The Workmen's Compensation Commissioner shall issue notice to the parties intimating the date of appearance. M.N.KRISHNAN, JUDGE vps M.N.KRISHNAN, JUDGE vps