IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 MFA.No. 58 of 2008() -------------------- WCC.27/2003 of Commissioner for Workmen's Compensation , ERNAKULAM .................... APPELLANT(S): -------------- THE NEW INDIA ASSURANCE COM.LTD., REP. BY ITS DY. MANAGER, REGIONAL OFFICE, M.G.ROAD, KOCHI-11 BY ADV. SRI.RAJAN P.KALIYATH RESPONDENT(S): --------------- 1. RAJESH, S/O.LONAPPAN, PANIKULANGARA HOUSE, KORATTY NORTH GATE, ERNAKULAM. 2. M/S.KARICODE CONSTRUCTIONS, PURAPPADATHIL, MULANTHURUTHY, ERNAKULAM DIST.PIN.682 301. SRI.A.N.SANTHOSH (AMICUS CURIAE) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A.(W.C.C.) No.58 of 2008 ----------------------------------------------- Dated 3rd November, 2011. J U D G M E N T K.M.Joseph, J. The appellant is the second opposite party/insurer in a proceeding under Section 22 of the Workmen's Compensation Act. The first respondent was the applicant before the Commissioner. Briefly put the case of the applicant is as follows: The applicant was employed by the first opposite party as a worker in a tar mixing plant, which is a special type of vehicle. While the applicant was working in the work site, the motor of the bitumen tank of the tar mixing plant blasted and he sustained severe injuries on 6.3.2003. The Commissioner found that the applicant is an employee and he sustained injuries and hence directed payment of Rs.4,03,046/- with 12% interest. Hence, the appeal. 2. We heard the learned counsel for the appellant. We also heard Sri.A.N.Santhosh, whom we had appointed as Amicus Curiae. The learned Amicus Curiae has filed a very detailed and exhaustive argument note and we record our sense of deep appreciation for the work he has done. MFA 58/08 2 3. According to the learned counsel for the appellant, the appellant/insurer should not have been made liable to pay compensation. It is his case that the policy of insurance does not cover the case of the first respondent/applicant. He would contend that under the policy of insurance in question, if the applicant is to come under the proviso to Section 147 of the Motor Vehicles Act, he must have been a driver. There is no case even for the applicant that he is a driver, it is pointed out. It is also pointed out that it is to be remembered that the vehicle in question is a special purpose vehicle and it is not a goods carriage, having regard to the definition of the word “goods carriage”. Therefore, he would submit that the amount should not have been directed to be paid by the insurer. There is no extra premium paid, it is submitted. 4. Per contra, Sri.A.N.Santhosh, learned Amicus Curiae would point out that the applicant must be treated as a driver. He would also point out that even without payment of any extra premium, having regard to the fact that the applicant MFA 58/08 3 was a driver of the vehicle, he would come under Section 147 (1)(a) of the Motor Vehicles Act. Further more, he would point out the clause in the contract, which reads as follows : “Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured against sums including claimant's cost and expenses which the insured shall become legally liable to pay in respect of (i) Death or bodily injury to any person caused by or arising out of the use (including the loading and/or unloading) of the Motor Vehicle. (ii) damage to property caused by the use (including the loading and/or unloading) of the Motor Vehicle.” In so far as the applicant was doing loading and unloading, he must be treated as covered, he submits. Learned counsel for the appellant invited our attention to the decision of the Apex Court in Ramashray Singh v. New India Assurance Co. Ltd. and others [(2003) 10 Supreme Court Cases 664)], which no doubt, deals with the coverage under Section 147(1)(b) of the Motor Vehicles Act. It was held therein that the insurance policy covers only the person or classes of persons specified in the policy. Learned counsel for the appellant would point out that as far as loading and unloading works are concerned, if it MFA 58/08 4 was a goods vehicle alone, there would be coverage. Further more, he would point out that under the schedule, which is referred to in the policy, the insurer would not be liable. 5. It is common case that the entire amount which has been deposited by the appellant/insurer has been withdrawn by the applicant. No doubt, learned counsel for the appellant would contend that having regard to the position obtaining in law and the facts of this case, the appellant may be permitted to recover the amount from the owner of the vehicle. 6. We must first of all note the facts. Admittedly, the case of the applicant/first respondent was that he was a worker in a tar mixing plant. There is no specific case as to whether the applicant was a driver. There is also no case as to whether he was engaged in loading and unloading. We scanned the evidence tendered by the applicant. There is no evidence to the effect that he was a driver or that he was engaged in loading and unloading. The exact nature of the employment is not thus clearly established. In the circumstances of this case, we feel that the matter may have to be remanded with MFA 58/08 5 opportunity to the parties to adduce evidence. Accordingly, we allow the appeal and remit the matter back, so that parties can adduce evidence. It is also open to the appellant to contend before the Commissioner, if it is found that the appellant is not liable that he is entitled to recover the amount from the employer. The matter will be disposed of by the Commissioner within a period of six months from the date on which the judgment is produced before the Commissioner. Fresh notice must be issued by the Commissioner to the parties. Registry will return back the records to the court below immediately. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.