IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 MFA.No. 168 of 2009() --------------------- WCC.342/2003 of Commissioner for Workmen's Compensation , THRISSUR .................... APPELLANT(S): -------------- ANTO C.A, S/O.ANTONY,CHITTILAPPILLY (H), KUNNATHANGADY P.O,VELUTHOOR,THRISSUR. BY ADV. SRI.P.V.CHANDRA MOHAN RESPONDENT(S): --------------- 1. JOHNY A.T, S/O.THOMAS,ARIMBUPARAMBIL HOUSE,LALOOR,ELTHURUTH P.O,THRISSUR DIST. 2. THE NEW INDIA ASSURANCE CO.LTD, THRISSUR BRANCH OFFICE,KOLLANNUR BUILDING, PALACE ROAD,THRISSUR- 680 020. ADV. SRI.KKM.SHERIF FOR R2 SRI.A.A.ZIYAD RAHMAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------- M.F.A. (W.C.C.) No.168 of 2009 ----------------------------------------------- Dated 12th October, 2011. J U D G M E N T K.M.Joseph, J. The appellant challenges the order passed by the Commissioner for Workmen's Compensation, rejecting the claim of the appellant. The claim of the appellant was briefly as follows : The appellant was a workman employed by the first opposite party as a driver of the vehicle KEE 8308 Ambassador Diesel car. He sustained bodily injuries on 23.1.2003, in an accident. The first opposite party was made ex parte. The second opposite party/insurer filed written statement inter alia denying the ownership of the vehicle by the first opposite party, the status of the applicant as a workman under first opposite party, employer-employee relationship, disability etc. It is also contended that the applicant had no valid driving licence at the time of the accident. According to them, the appellant was an auto-consultant and he was never employed by the first opposite party. The appellant filed proof affidavit. He was examined as AW1 and Exts.A1 to A4 were marked. He was also MFA 168/09 2 cross-examined by the second opposite party. 2. A medical practitioner was examined as AW2. The medical board petition was rejected. MW1 is the investigator and he produced M1 and M2. Thereafter, the Commissioner would find as follows : “The applicant produced four documents in support of his claim that Ext.A1 is discharge card, Ext.A2 Driving Licence, Ext.A3 is a copy of SSLC 3rd page and Ext.A1 is disability and loss of earning capacity certificate. AW1 applicant and AW2 doctor was only examined as a witness. The 2nd opposite party raised strong contention in their written statement that the applicant was an Auto consultant and accident caused to the applicant while riding his scooter KL-8/G 6249. The applicant failed to produce any independent witness to establish his claim. In the circumstance the case is dismissed.” 3. We heard learned counsel for the appellant and learned counsel for the second opposite party. Learned counsel for the appellant would contend that actually, there was no basis to reject the application. The first opposite party had remained ex parte. He would further point out that in the investigator's report, it is reported that when the employer was MFA 168/09 3 contacted, he indicated that the appellant was indeed employed as a driver. 4. We notice that what is stated by the Commissioner is that the insurer raised strong contention in their written statement that the appellant was an auto- consultant and accident was caused to the applicant while riding his scooter KL-8/G-6249. Thereafter, all what is stated is that the appellant failed to produce any independent evidence establishing his case. 5. We had in fact directed the learned Government Pleader to ascertain whether the vehicle bearing registration No. KL-8/G-6249 is a scooter, who is the registered owner of the scooter and as to whether the said vehicle was involved in any accident on 23.1.2003 and whether any crime was registered in connection with the said accident. Learned Government Pleader, when the matter came up today, submitted that the said vehicle bearing registration no. KL-8/G-6249 is actually a Goods Carrier and its registered owner is M.Aboobacker, who has transferred the vehicle to one Showkath B. It is also MFA 168/09 4 submitted that no crime has been registered in respect of that vehicle. 6. Having regard to all circumstances, this is a matter which should be remitted back and opportunity should be given for establishing the case. Accordingly, the impugned order is set aside and the matter is remitted back. The Commissioner will proceed to dispose of the matter within a period of six months from the date of production of a copy of the judgment. Parties are free to adduce any evidence. Sd/- K.M.JOSEPH, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (True copy) P.S. to Judge.