IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 MFA.No. 551 of 2003(A) --------------------------------- WCC.67/1995 of W.C.C.,ERNAKULAM .................... APPELLANT: 2ND OPPOSITE PARTY: -------------------------------------------------- THE ORIENTAL INSURANCE CO.LTD., MANNAM SATABDI MANDIRAM, ANAVATHIL, KOCHI-682 002, REPRESENTED BY THE DIVISIONAL MANAGER, DIVISIONAL OFFICE, DOOR NO.6/990-B,SHAN COMPLEX, I FLOOR, BAZAR ROAD, MATTANCHERRY, KOCHI-682 002. BY ADV. SRI.M.JACOB MURICKAN RESPONDENTS: APPLICANT AND 1ST OPPOSITE PARTY: ---------------------------------------------------------------------------- 1. PRADEEP, S/O. GOPI, THAYIL HOUSE, KOTAIMURI, THRIKKUNNAPUZHA P.O., ALAPPUZHA. 2. P.UNNIKRISHNAN, LAKSHMI, KARUVELIPADY, KOCHI-682 005. BY ADV. SRI.P.RAMAKRISHNAN SMT.T.C.KRISHNA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = M.F.A. NO. 551 OF 2003 = = = = = = = = = = = = = = = = = = = Dated this the 3rd day of January, 2008 J U D G M E N T -------------------- The second opposite party in W.C.C. No.67 of 1995 on the file of the Commissioner for Workmen's Compensation (Deputy Labour Commissioner), Ernakulam, is the appellant. Appeal is filed against the order passed by the Commissioner by which the appellant was directed to pay an amount of Rs.25,000/- with interest. 2. Short facts necessary for the disposal of the case are as follows: First respondent filed the petition claiming compensation for the personal injuries sustained by him in the accident took place on 20.3.1994. First respondent was a workman in a fishing boat by name 'Mr.Fish', owned by the second respondent. According to the first respondent on 20.3.1994 he sustained employment injury, bi-malleolus fracture of right ankle of both bones. He claimed a compensation of Rs.25,000/-. 3. Second respondent filed a written statement M.F.A. NO. 551 OF 2003 -: 2 :- admitting the status of the first respondent. It was admitted that due to the injuries caused, the first respondent was admitted in the Medical College Hospital, Alappuzha on 20.3.1994. It was further admitted that the wages of the first respondent was Rs.1,000/- per month. 4. Appellant filed objection raising a contention that it had issued a Marine Hull Policy in respect of the boat mentioned in the application in favour of the second respondent. It was also contended that the personal accident cover under the Marine Hull Policy does not cover the employer's liability under the Workmen's Compensation Act. It was further contended that the liability is enumerated in the Policy itself and the maximum liability of the Insurer is Rs.25,000/- per person. The averment that the first respondent was an employee of the second respondent was not admitted. The Commissioner found that the first respondent was an employee of the boat owned by the second respondent and first respondent sustained an employment injury on 20.3.1994. The Commissioner also found that the first respondent was entitled to a compensation of Rs.26,910/- M.F.A. NO. 551 OF 2003 -: 3 :- with 6% interest. The Commissioner rejected the contention of the appellant that the liability of the Insurer under the policy was not the one covered by the provisions of the Act. The Commissioner further held that the liability of the appellant was limited to Rs.25,000/-. The Commissioner passed an order allowing the first respondent to recover a sum of Rs.26,910/- with interest at the rate of 6%. The second respondent was directed to pay Rs.1,910/- with interest and the balance amount by the appellant. Challenging that order, this appeal is filed. The only question arising for consideration is whether the Commissioner was justified in fastening the liability on the appellant. 5. The Commissioner took a view that when there is a valid policy, the Commissioner is competent to decide and declare the liability of the Insurer. That view appears to be wrong on the face of it. Admittedly, the policy issued was a personal accident policy under the Marine Hull Policy. In paragraph 2 of the appeal memorandum the appellant has extracted the conditions under which the Insurer can be made liable. It covers the case of death or separation of two entire M.F.A. NO. 551 OF 2003 -: 4 :- hands or both eyes or two entire feet and the liability is Rs.25,000/-. If the loss is only one eye or one hand or one foot, the liability is 50% of Rs.25,000/-. If the workman is permanently, totally and absolutely disabled, the Insurer is liable to pay Rs.12,500/-. A reading of the policy conditions shows that it is not a policy issued under provisions of the Workmen's Compensation Act. The jurisdiction of the Commissioner is to deal with a policy which issued under the provisions of the Act only. It is true that if the driver of a vehicle sustain injuries in certain cases he can approach the Motor Accidents Claims Tribunal or the Workmen's Compensation Court. That is because of the peculiar policy conditions. Normally, in such cases the policy issued will be under the provisions of the Act also. But in this case it is for the employer to make a claim and he will have to satisfy that his employee sustained any one of the injuries enumerated in the policy. It is trite law that when an employee sustains an employment injury, he is entitled to claim compensation from the employer. But that is the statutory liability. The liability of the Insurer is a contractual liability and not a statutory M.F.A. NO. 551 OF 2003 -: 5 :- liability which arises under the provisions of the Act. So the Commissioner went wrong in directing the appellant to pay the amount awarded. That part of the order is to be vacated. The employee can recover the entire amount from the employer. 6. It is pointed out by the learned counsel for the appellant that in pursuance of the order passed by the Commissioner, the appellant had deposited the entire amount with 6% interest and in view of the interim order passed by this Court, the first respondent had withdrawn 50% of the same. I do not think it just and proper to allow the appellant to recover the amount already received by the first respondent from him. The appellant will have to work out its remedies against the employer. However, this order will not be a bar for the second respondent to make a claim from the appellant on the basis of the policy issued to him if the same permissible under law. 7. In the result, the appeal is allowed in part. The finding of the Commissioner that the appellant is liable to pay Rs.25,000/- to the first respondent is vacated. But it is made clear that if the first respondent had already withdrawn 50% M.F.A. NO. 551 OF 2003 -: 6 :- of the amount deposited, the appellant cannot recover the same from the first respondent. But the appellant can recover the same from the insured in accordance with law. It is also made clear that the first respondent can recover the balance amount, if any, from the second respondent. The appellant can withdraw the excess amount, if any, deposited by it. It is further made clear that this order will not be a bar for the second respondent to work out his remedies against the Insurer in accordance with law. Interlocutory Application No.173 of 2003 shall stand dismissed. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. NO.551 OF 2003 ===================== J U D G M E N T ------------------------------------------- 3RD JANUARY, 2008