IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 MFA.No. 228 of 2006(A) ---------------------- WCC.43/1997 of W.C.C.,THRISSUR .................... APPELLANT(S): 2ND OPPOSITE PARTY -------------------------------- THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE, METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS MANAGER. BY ADV. SRI.VPK.PANICKER RESPONDENT(S): IST OPPOSITE PARTY AND APPLICANTS 2 & 3 ------------------------------------------------------ 1. M/S.P.K.BALAN & CO., ABKARI CONTRACTORS, IRINJALAKUDA. 2. SREEDHARAN, S/O.KUTTAN, KIZHAKOODAN HOUSE, P.O.KODAKARA, THRISSUR. 3. PUSHPA, W/O.SREEDHARAN, KIZHAKOODAN HOUSE, P.O.KODAKARA, THRISSUR. ADV. SRI.V.CHITAMBARESH FOR R2 SRI.T.C.SURESH MENON FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. -------------------------------------------------------- MFA NO.228 OF 2006-A -------------------------------------------------------- Dated 8th June 2009 Judgment JOSEPH, J. The second opposite party in an application filed under S.22 of the Workmen's Compensation Act, 1923 (hereinafter referred to as the Act) is the appellant. Pending application, the petitioner applicant died. Thereafter, petitioners 2 and 3, who are the additional respondents herein came to prosecute the application. The original applicant suffered injuries as a result of the fall from the tree during the course of employment. The alleged employer accepted the status of the workman, but it was stated that the claimant was strictly warned not to climb trees after consuming liquor and the present fall was only due to intoxication. The appellant took the contention that the employer had paid Rs.10,938/- towards full and final settlement of the claim on 31.03.1997. It was the contention of the appellant that there was only a Group Personal Accident Policy. The Commissioner found inter alia under Issue No.1 that there was MFA 228/06 2 100% loss of earning capacity of the first applicant. Issue No.4 was as to which of the opposite parties is liable to pay the compensation. It is answered as follows : “In the written statement, the 2nd opposite party has no case that there is any limit of liability to the policy issued. The contention of 2nd opposite party is that an amount of Rs.10,938/- has been paid to the 1st opposite party in full and final settlement of the claim. The receipt for this payment is issued by the 1st opposite party and not by the applicant. There is no evidence adduced by the opposite parties to show that the workman in this case has received any compensation from the opposite parties. Hence I find that the 2nd opposite party is liable to indemnify the 1st opposite party for his liability to pay the compensation. In the result, the 2nd opposite party Oriental Insurance Co. Ltd. MFA 228/06 3 Kodungallur is directed to deposit with this authority an amount of Rs.94,957/- (Rupees Ninety Four Thousand Nine Hundred and Fifty Seven only) (deducted amount of Rs.10,938/- from 1,05,595/-).” 2. We heard the learned counsel for the appellant and respondents 2 and 3. There is no appearance for the first respondent. The learned counsel for the appellant would submit that while it may be established that the original applicant may be entitled to lay a claim under the Act against the employer, the Commissioner has entered a perverse finding in regard to Issue No.4. It is contended that the terms of the Group Personal Accident Policy which was the only policy by which the 1st respondent was covered, did not cover the claim of the original applicant in the application. Whatever was payable under the policy had been paid and it is after some time of receipt of the payment, the application is filed by the original applicant. MFA 228/06 4 He points out that though the employer had taken certain contentions after the appearance of the appellant, he did not prosecute the contentions. The Commissioner without even considering the terms of the policy and the contention of the appellant that there is no statutory policy, proceeded as if there was a statutory policy and mulcted the appellant with liability. He took us through the terms of the policy in this regard. He further contended that the terms of the policy do not contemplate payment of interest, but, in clear violation of the terms of the policy, the appellant has been called upon to pay interest also. Per contra, the learned counsel for respondents 2 and 3 would contend that a perusal of Clauses (d) and (f) would show that the order of the Commissioner is only to be supported. Clauses (d) and (f) read as follows : “d) If such injury shall, as a direct consequence thereof, immediately permanently totally and absolutely, disable the insured from engaging in MFA 228/06 5 being occupied with or giving attention to any employment or occupation of any description whatsoever, then a lump sum equal to hundred percent (100%) of the Capital Sum Insured stated in the Schedule hereto applicable to such Insured person. f) If such injury shall be the sole and direct cause of temporary total disablement, then so long as the Insured Person shall be totally disabled from engaging in any employment or occupation of any description whatsoever, a sum at the rate of one percent (1%) of the Capital Sum Insured stated in the Schedule/hereto per week, but in any case not exceeding Rs.3,000/- per week in all, under all Personal Accident policies, covering such Insured Person.” He would submit that the first applicant had come to be paralysed and what is more, he passed away as already noted. MFA 228/06 6 This is an appeal, which is maintainable only on substantial questions of law raised. We would notice that though the appellant denied the liability with reference to the terms of the policy which is produced as Ext.M1, finding of the Commissioner is made without any reference to the terms of the policy. Neither clause (d) nor clause (f), which the learned counsel for the respondents point out, in support of his contentions are referred. Apart from saying that, an amount of Rs.10,938/- was paid in full and final settlement and there is no evidence to show that the workmen has received any compensation from the opposite parties, there is absolutely no reasoning given. We would definitely think that this is a perverse finding. Likewise, there is no finding regarding the liability to pay interest also. We feel that this is a fit case where the matter has to be remanded so that the Commissioner can examine this issue and render appropriate finding with reference to the relevant clauses and with opportunity to the parties to adduce evidence. Accordingly, the impugned order is set aside to the extent it renders the appellant liable. We, however, make it clear that the direction MFA 228/06 7 against the 1st respondent to deposit the amount is not being interfered with. Till the matter is reconsidered pursuant to the remand, the amount deposited by the appellant will remain in deposit. But, we make it clear that we have not vacated any of the other findings and the remand is only to be limited to the consideration of Issue No.4 as also the question relating to the liability to pay interest. The Commissioner, while taking up the matter, dispose of the same in view of the long pendency of the matter from the year 1997 and take a decision within three months from 06.07.2009. The parties will appear before the Commissioner on 06.07.2009. The MFA is disposed of as above. K.M.JOSEPH, JUDGE M.L.JOSEPH FRANCIS, JUDGE sta MFA 228/06 8 MFA 228/06 9