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 3RD AUGUST 2011 / 12TH SRAVANA 1933 MFA.No. 222 of 2006() --------------------- WCC.490/2002 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPOSITE PARTY -------------------------------- THE NATIONAL INSURANCE CO. LTD., IRINJALAKUDA, REP. BY ITS MANAGER, MOTOR T.P.DEPARTMENT, M.G.ROAD, COCHIN-16. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: APPLICANT AND IST OPPOSITE PARTY ----------------------------------------------- 1. TONY, S/O.THOMAS, ACHANGADAN HOUSE, IRINJALAKUDA, THRISSUR. 2. M.P.GIGI, MCP AGROTECHNOLOGY PVT. LTD., P.B.NO.501, IRINJALAKUDA. SRI.P.V.BABY(B/O) FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A. No.222 of 2006 E - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of August, 2011 JUDGMENT K.M. Joseph J., The appeal is filed against the order passed by the Commissioner for Workmens' Compensation allowing a claim filed by the first respondent and directing a payment of Rs.81,079/- with interest. The 2nd respondent is the appellant herein. 2. We heard learned counsel for the appellant and learned counsel for the respondents. 3. The main question of law, which is projected before us is that first respondent is an employee cannot be sustained at all. Learned counsel for the appellant would point out that this is a case where the applicant was actually a pedestrian hit by the vehicle. Learned counsel for the appellant submits that there is no evidence. This is a case where the Commissioner should not have allowed the application. Learned counsel for the first respondent submits that on the basis of F.I.R statement, it is stated that the applicant was a M.F.A. No.222 of 2006 E :2: pedestrian. Now he points out that, in the claim petition he has stated that he was an employee. 4. In these circumstances, we feel that there is merit in the appeal on the basis of the finding that the applicant is an employee is totally unsustainable . 5. In such circumstances, we allow the appeal and the order of the Workmen's Compensation Commissioner will stand set aside. Learned counsel for the respondent submits that he may be permitted to approach MACT. We make it clear that this will be without prejudice to the right of the first respondent to approach MACT, if he is so advised. We do not intend to express the merits and maintainability of the appeal. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/