IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 10TH JULY 2008 / 19TH ASHADHA 1930 MFA.No. 629 of 2003(A) --------------------------------- WCC.22/1999 of W.C.C.,ERNAKULAM .................... APPELLANT: OPPOSITE PARTY NO.2: ------------------------------------------------- NATIONAL INSURANCE CO.LTD., REGIONAL OFFICE, MUTHOOT TOWERS, M.G. ROAD, KOCHI-35, REPRESENTED BY THE ASSISTANT MANAGER THIRD PARTY CLAIMS CELL, NATIONAL INSURANCE CO.LTD., AJAY VIHAR, M.G. ROAD, ERNAKULAM. BY ADV. SRI.M.A.GEORGE RESPONDENTS: PETITIONER & OPPOSITE PARTY NO.1: -------------------------------------------------------------------------- 1. K.J. SANTHOSH, S/O. K.S. JACOB, KUTTAMPARAMBIL HOUSE, 20/981, VELLIYATHUPARAMBU, KACHERIPADY (WEST), PALLURUTHY, KOCHI-6. 2. K.J. JOSE, KAVUNGAL HOUSE, AROOR P.O., CHERTHALA. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO. 517 OF 2004 IN MFA NO. 629 OF 2003 DISMISSED 10.7.2008 ID/- M.N. KRISHNAN, JUDGE. vsv M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 629 OF 2003 = = = = = = = = = = = = = = = Dated this the 10th day of July, 2008. J U D G M E N T This appeal is preferred against the judgment of the Workmen's Compensation Commissioner, Ernakulam in W.C.C.22/99. It is the case of the petitioner that he was employed by the first opposite party in the petition as a cleaner of the tractor trailor. According to him while he was on duty on 9.3.98 and was giving signal to the driver by standing near the Kalappurakkal Company Gate at Eda Kochi the trailor suddenly swerved and the left hand of the petitioner was crushed in between the trailor and the gate, he sustained serious injuries. The Workmen's Compensation Court awarded him a sum of Rs.28,377/-. It is against that decision, the insurance company has come up in appeal. 2. Learned counsel would contend before me that the insurance company had raised a contention regarding the employer-employee relationship and as provided under Rule 28 of the Workmen Compensation Rules it is mandatory on M..F.A. 629 OF 2003 -:2:- the part of the Court to frame an issue and record a finding which has not been done by the Commissioner. It is true. Whether it has resulted in substantial injustice to any of the parties can be considered. Here, the claimant was examined as AW1 and he had clearly deposed in terms of the petition and further he had been cross-examined. No question is put to him in cross-examination regarding the employer- employee relationship. Whereas in the chief examination he has specifically stated, “ Only the generic question is put towards the end whether the accident had not taken place on account of the usage of such vehicle which he denies. So really there is plea to the effect regarding the denial of employer-employee relationship. When it has come to the stage of evidence there has been no challenge against the said question. When it is so, though there is irregularity in not framing an issue it has to be stated the Workmen's Compensation Court was right in holding that he is entitled to compensation. Thereafter it had calculated the compensation only as per the Workmen's M..F.A. 629 OF 2003 -:3:- compensation table and there is nothing to interfere. Therefore I do not find that really there is any substantial question of law available for entertaining this appeal and on that ground as well the appeal stands dismissed. M.N. KRISHNAN, JUDGE. ul/-