IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 MFA.No. 162 of 2005() --------------------- WCC.249/2002 of W.C.C.,THRISSUR .................... APPELLANT: -------------- THE ORIENTAL INSURANCE CO.LTD., CHALAKUDY, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT/APPLICANT/1ST OPPO. PARTY: ------------------------------------------------- 1. TENNY, S/O.JACOB, PADIKKALA HOUSE, RESIDING AT RANDUKAI DESOM, KUTTICHIRA VILLAGE, CHAIPINKUZHY P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. K.O.LANAPPAN, S/O.OUSEPH, KANNOOKKADAN HOUSE, MARAMCODE, CHETTIKULAM P.O. ADV. SRI. P.V.BABY (CAVETOR) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A.NO.3207/2005 IN MFA.NO.162/2005-A DISMISSED SD/= J.B. KOSHY, JUDGE. 4.9.2008 SD/= THOMAS P. JOSEPH, JUDGE. /TRUE COPY/ cl J.B. KOSHY & THOMAS P. JOSEPH,JJ. ------------------------------------------- M.F.A.NO.162 OF 2005 ------------------------------------------ Dated this the 4th day of September, 2008. JUDGMENT Koshy, J: The contention of the insurance company is that the first respondent in this appeal was conducting an automobile workshop. While repairing dianamo of the vehicle of the second respondent, the first respondent sustained injuries. He claimed compensation before the Workmen's Compensation Commissioner contending that during the course of the employment, he sustained injuries. The Tribunal found the contention of the first respondent/claimant was correct and awarded compensation and directed the insurance company of the vehicle to deposit the compensation. Even accepting the averments of the claimant in the petition filed, it can be seen that the vehicle was entrusted for repairing and while repairing the vehicle, the accident occurred. According to the insurance company, he was not an employee of the insured, the first opposite party (second respondent in the appeal). But the first opposite party in the written statement filed has admitted the ownership of the said vehicle, the occurrence of the accident to MFA.NO.162/2005 . 2 the applicant and the applicant was a permanent electric Mechanic of his vehicle. In any event, in the policy of the insurance, there is no coverage for such employees. He is neither a driver nor a cleaner of the lorry covered under the terms of the policy. In the absence of policy conditions, the insurance company cannot be made liable to pay compensation. He has no case that he is a third party. If he is a third party, the Commissioner cannot award compensation. His remedy is to file an application before the Motor Accident Claims Tribunal. Therefore, the insurance company cannot be fastened with the liability. We accept the contention of the insurance company. The amount deposited shall be refunded to the insurance company. Since the first opposite party (second respondent in this appeal) has admitted that the claimant (first respondent in this appeal) is his worker and the accident occurred during the course of employment, compensation ordered can be recovered from the second respondent in this appeal. The award is modified accordingly and the appeal is allowed. J.B. KOSHY, JUDGE. THOMAS P. JOSEPH, JUDGE. MFA.NO.162/2005 . 3 cl