IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 MFA.No. 202 of 2006 (A) -------------------------------------- WCC.80/2001 of W.C.C.,KOZHIKODE .................... APPELLANTS: --------------------- THE ORIENTAL INSURANCE CO.LTD., CALICUT, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: ------------------------- 1. SUNEER SINGH, S/O.SEATAN SINGH, LAILA MUHAMMED APARTMENT, NEAR KALLAI APARTMENTS DUTT SAW MILL ROAD, P.O. KALLAI, KOZHIKODE. 2. PRAYAG SINGH BHATI, SAGRATI TEXTILES, D-14, 4TH FLOOR, CENTRY COMPLEX, NEAR NEW BUS STAND, CALICUT. ADV. SRI.VINOD VALLIKAPPAN FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 05/04/2010, ALONG WITH MFA NO.229 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.Nos.202 & 229 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 5th day of April 2010 JUDGMENT Basheer, J. Since both these appeals arise from an order passed by the Commissioner for Workmen's Compensation on a claim petition filed by a workman, they are being disposed of by this common judgment. 2. While MFA 202/06 has been filed by the insurer of the vehicle involved in the accident, the other appeal viz. MFA 229/06 is at the instance of the workman. The parties herein are being referred as they were arrayed in the claim petition. 3. The Commissioner, after considering the oral and documentary evidence on record, found that the claimant/workman was under the employment of respondent No.1 at the time of the accident and awarded a sum of Rs.1,27,074/- towards compensation with interest at the rate of 12% per annum from the date of the accident. The Commissioner further held that since the vehicle was covered under a valid insurance policy, respondent No.1/owner of the vehicle was liable to be indemnified by the insurer. 4. Insurance company impugns the above order in its appeal contending interalia that respondent No.1 had, in his declaration admitted that the claimant was not a paid driver but only his friend, and therefore no liability ought to have been fastened on it. M.F.A.Nos.202 & 229 OF 2006 :: 2 :: 5. The workman in his appeal challenges the inadequacy of the amount of compensation awarded to him. It is contended by him that going by the seriousness of the injuries sustained by him and the resultant disability caused in the accident, the amount awarded is too low. 6. We have heard learned counsel for the parties in the two appeals. The owner/respondent No.1 has not entered appearance either in person or through counsel. It is brought to our notice that respondent No.1 was absent before the Commissioner also. We have perused the records in the case. 7. As mentioned earlier, the only contention raised by the Insurance company in its appeal is that it is not liable to indemnify the owner of the vehicle/employer in as much as he had, in Ext.R1 declaration given by him shortly after the accident, tacitly admitted that the vehicle in question was being driven by a relative of his at the time of the accident. It is seen from the records that the said document is stated to be a Motor Claim Form which allegedly bears the signature of the insured/owner of the vehicle. It is true that in column No.4 which relates to details with regard to the person driving the vehicle at the time of the accident, the insured had answered that the driver was his relative. The answer to the query in the particular column reads thus: “owner's relative/friend - yes”. 8. We have carefully perused the above document which has been marked in the case as Ext.R1. It is true that the said document bears a signature which is stated to be that of the employer/insured. Significantly, the M.F.A.Nos.202 & 229 OF 2006 :: 3 :: insured did not either appear or get himself examined in the case. There is no other document to show that the signature shown in Ext.R1 is that of the insured/owner himself. We do not propose to make any further comment on the signature as such, in the absence of any other document containing his authentic signature. We may stop by saying that we are not fully satisfied with the above document to persuade us to come to the conclusion that this so called Motor Claim Form was submitted by the insured himself. Though learned counsel for the appellant/insurance company would vehemently contend that the said document was submitted by the insured after the accident, we are not persuaded to place reliance on the said document and reject the claim of the workman in the absence of any corroborative evidence in support of the same. 9. The Commissioner had dealt with the above aspect in the impugned order. The Commissioner found that Ext.R1 form was not properly filled up and the explanation offered by the officer of the insurance company, who was examined as RW1, was not convincing enough to show that the applicant was not a paid driver. More importantly, the workman, who was examined as PW1, had asserted that he was a paid driver under respondent No.1 at the time of the accident. No contra evidence was adduced either by the employer/respondent No.1 or the insurance company. 10. As indicated by us earlier, we are not in a position to place any reliance on Ext.R1 Claim Form in the absence of the insured himself stepping M.F.A.Nos.202 & 229 OF 2006 :: 4 :: into the box and asserting that the claimant was not his paid driver. In that view of the matter, the challenge raised by the insurance company is liable to be repelled. We do so. 11. However, since opposite party No.1/the owner has failed to appear and contest the case, we are of the view that the insurance company can be given liberty to pay off the liability and recover the same from him. We are persuaded to take the above view, especially, for the reason that the entire burden was on respondent No.1 to establish that there was no employer- employee relationship between him and the claimant/workman. Since respondent No.1 has not discharged the said burden, he has to bear the responsibility of making payment to the victim. However, the primary liability is fastened on the insurance company which shall pay the compensation and recover the same from respondent No.1. 12. As regards the appeal filed by the claimant/workman, we have carefully perused the entire materials available on record. The Commissioner has taken the monthly salary of the claimant as Rs.2,000/- in the absence of any documentary evidence. 13. The only contention raised by the appellant is that the doctor (AW2), who had examined him, had assessed his disability as 72%. Appellant contends that the Commissioner was not justified to reduce it to 50%. It is contented by the learned counsel that going by the nature of the injuries, the disability caused by the accident would disable the claimant from performing his duties M.F.A.Nos.202 & 229 OF 2006 :: 5 :: as a driver. The doctor had assessed his disability keeping in view his capacity to drive; and therefore the percentage of disability as assessed by the doctor ought to have been accepted. But as rightly noticed by the Commissioner, the doctor had not assessed the loss of earning capacity. The Commissioner had also kept in view the injury suffered by the claimant (fracture of shaft of femur (right), partial ankylosis of right elbow with flextion extension motion limited to arc from 1800 to 900, flexion and partial ankulosis of both ankles). 14. Having perused the entire materials available on record, we do not find any reason to interfere with the conclusion made by the Commissioner in this regard. Therefore, the appeal filed by the claimant fails. It is accordingly dismissed. MFA 202/06 is disposed of making it clear that the appellant shall be entitled to recover the amount of compensation awarded by the Commissioner to the workman from respondent No.1 in this proceedings. MFA 229/06 is dismissed. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE jes