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 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 MFA.No. 81 of 2010() -------------------- WCC.2/2006 of W.C.C.,ERNAKULAM .................... APPELLANT: APPLICANT: --------------------------------------- CHANDRABOSE, S/O.KESAVAN THADATHIL HOUSE KALAMASSERY SOUTH, K.D.PLOT P.O., ERNAKULAM. BY ADV. SMT.ANEY PAUL SRI.PHILIP J.VETTICKATTU RESPONDENTS: OPPOSITE PARTIES -------------------------------------------------- 1. THOMAS GEORGE, MANAGING DIRECTOR, MATHSTRAMAM MANUFACTURING & TRADE (PVT.)LTD., NEELAMPILLIL HOUSE, VADAVATHOOR P.O.,KOTTAYAM DISTRICT. 2. THE UNITED INDIA INSURANCE CO.LTD., PONKUNNAM P.O. ADV. SRI.GEORGE CHERIAN (THIRUVALLA) FOR R2 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - M.F.A.(W.C.Act) No. 81 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th September, 2011 JUDGMENT K.M. Joseph J., The appellant is the claimant in proceedings under Section 22 of the Workman's Compensation Act. The claim was dismissed finding that the applicant failed to substantiate that he was a workman as defined under Section 2(1)(n) of the Act. 2. The case of the applicant was that he was a driver of a lorry and while he was driving the vehicle some unidentified persons pelted stones against the vehicle and thereby he sustained injuries. We note from the order that the first opposite party, namely the employer admitted the fact that the applicant was the driver of employer's lorry. M.F.A.No. 81 of 2010 :2: Two issues before the Commissioner and the findings of the Commissioner are as follows: “(i) Whether the applicant, Chandrabose was a workman as defined under the Act and whether he was employed under the first opposite party? (i) Whether the personal injuries sustained to the applicant was by an accident arising out of an in the course of his employment? Findings: The above two issues are taken together for the sake of convenience. The applicant in his proof affidavit stated that he was a driver under the employment of the first opposite party. While driving KL.5E.5045 owned by the first opposite party from Kannur to Kozhikode on 4.7.2005 at about 10.35 p.m. two unidentified persons pelted stones against the lorry. The front glass of the lorry broken and the applicant sustained injuries on fracture (R) Zygoma and medial at inferior displacement, depressed fracture (R) maxillary region, loss of vision of ® eye. Immediately he was hospitalized at Medical College Hospital at Calicut. In order to substantiate his contentions the applicant produced Ext.A1 FIR and M.F.A.No. 81 of 2010 :3: medical records Ext.A3, A4 and A5. In the cross examination by the second opposite party, the applicant assured before this Court that copy of driving license will be submitted before this Court. But the applicant failed to produce the copy of driving license. The plea of the second opposite party is that driving license is the primary document to show that the claimant was the employee of the first opposite party. As the applicant failed to produce copy of driving license, he could not prove that he was the driver of the vehicle KL.5E.5045. In the circumstances, I find that the applicant failed to substantiate that he was a workman as defined under Sec.2(1)(n) of the Act. Hence other issues are not considered at present. The claim stands dismissed.” 3. We heard learned counsel for the appellant and learned counsel for the 2nd opposite party/insurer. 4. Learned counsel for the appellant submits that actually the appellant was a driver and he was having a license. The license was given for renewal and hence he could not produce the license before the Commissioner. Learned counsel for the appellant submits that M.F.A.No. 81 of 2010 :4: original of the license will be produced before the Commissioner, if the matter is remitted back. In such circumstances, we feel that an opportunity should be given to the applicant. 5. Accordingly the order of the Workman's Commissioner is set aside and the matter is remitted back to the Commissioner. We direct that the Commissioner shall dispose of the matter within six months from the date of production of a copy of this judgment before the Commissioner. The MFA is disposed of as above. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/