IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 MFA.No. 129 of 2009() -------------------------------- WCC.67/2003 of COMMISSIONER FOR WORKMEN'S COMPENSATION AND DEPUTY LABOUR COMMISSIONER, KANNUR .................... APPELLANT(S): 2ND OPPOSITE PARTY ------------------------- UNITED INDIA INSURANCE COMPANY LIMITED, KANNUR NOW REP.BY ITS MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI.11. BY MR.MATHEWS JACOB, SENIOR ADVOCATE BY ADV. MR.P.JACOB MATHEW RESPONDENT(S): APPLICANT AND IST OPPOSITE PARTY. -------------------------- 1. K.V.ASHOKAN, S/O. KUMARAN, DRISYA, NIVAS, CHEKKIKULAM P.O., KOODALI, KANNUR. 2. SREEDHARAN C., S/O. KUNHIRAMAN, CHANDRATHIL HOUSE, CHEKKIKULAM P.O., KOODALI , KANNUR. R1 & R2 BY ADV. MR.M.RAMESH CHANDER THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.1385/2009 IN MFA. NO.129/2009 DISMISSED 21/01/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A.TO JUDGE tss M.N. KRISHNAN, J. ........................................... M.F.A.No.129 OF 2009 ............................................. Dated this the 21st day of January, 2010. J U D G M E N T This is an appeal preferred against the order of the Workmen's Compensation Commissioner, Kannur in W.C.C.No.67/2003. The applicant sustained injuries while driving a vehicle and he claimed to be an employee of the first opposite party therein and the Workmen's Compensation Commissioner found it so and awarded a compensation of Rs.87,058/= with 12% interest. The insurance company was made liable to pay the amount. The insurance company on the contra would contend that the applicant is not an employee of the first opposite party and therefore, as there is no employer employee relationship between the applicant and the first opposite party, the question of coverage and liability of the insurance company does not arise for determination. But the Workmen's Compensation Commissioner did not accept that contention. While admitting, this Court has framed the following questions of law: : 2 : M.F.A.No.129 OF 2009 (1) “Whether the Commissioner is justified in finding that the applicant was employed by the 2nd respondent at the time of accident after ignoring the evidence given by RW2-the Welfare Fund Inspector. (2) Whether the Commissioner is justified in fixing 20% loss of earning capacity by accepting Exhibit X1 disability certificate without examining the Doctor who issued the same and (3) whether the Commissioner is justified in granting 12% interest on the compensation amount from the date of accident when the Supreme Court has held that the interest is payable not from the date of accident, but only from the date of adjudication of the claim”. 2. Point: It is the case of the applicant that while he was riding a jeep, it collided with a lorry resulting in injuries to him. He had sustained frictional disability and is claiming to be an employee under the first opposite party. The insurance company's definite contention is that the appellant is a salesman in a toddy shop and during the relevant period of accident, he was not an employee under the first opposite party and therefore, the question of indemnification does not arise. The first opposite party, according to the Toddy Welfare Inspector, was running a toddy shop only from : 3 : M.F.A.No.129 OF 2009 5.5.2002 to 31.3.2003 and it is further deposed by him on the basis of the document that from 5.5.2003 to 31.3.2004 it was one M.K. Madhusoodanan who was running the toddy shop. The accident in this case is on 24.5.2003 and therefore if the evidence of the Toddy Welfare Inspector is true and correct, the applicant cannot be an employee under the first opposite party on the relevant date of accident. There are conflicting evidence between PW1 and the first opposite party. PW1 would never say that he is an employee in any toddy shop. But the first opposite party would say that he was an employee of the toddy shop and he had also deposed that he was the driver of the jeep which was being used for the purpose of transporting toddy to the shop. So if that evidence is acceptable, then necessarily after 31.3.2004 this person who was not having any toddy shop cannot operate any jeep for the purpose of transporting the toddy which would indicate that the applicant cannot be an employee under him. But the applicant's counsel would submit before me that he will be able to prove before the court that he was an employee of the first opposite party. : 4 : M.F.A.No.129 OF 2009 Therefore I feel that an opportunity can be given to him to establish and I am certain that present materials are not sufficient to hold so. Therefore, the award under challenge is set aside and the matter is remitted back to the Workmen's Compensation Commissioner with a direction to consider the case afresh after affording opportunity to all concerned to produce documentary as well as oral evidence in support of their respective contentions and then dispose of the matter in accordance with law. The Workmen's Compensation Commissioner shall issue notice to the parties intimating the date of appearance. If the amount which is deposited is still in court deposit, let it not be disbursed to the applicant till a final decision is taken in the matter. Since the matter is going back, the quantum as well as disability and interest also can be reconsidered. M.N. KRISHNAN, JUDGE cl : 5 : M.F.A.No.129 OF 2009