IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 MFA.No. 98 of 2009(C) -------------------- WCC.83/2003 of W.C.C.,THRISSUR .................... APPELLANT(S): OPPOSITE PARTY NO.1 --------------------------------- POPULAR AUTOMOBILES, KUNNATHUMKARA, PARAVATTANI, THRISSUR. BY ADV. SRI.V.BINOY RAM RESPONDENT(S): APPLICANT/OPPOSITE PARTIES 2 AND 3 ------------------------------------------------- 1. SHINOJ.P.J.,S/O.JOSE, PUTHIYAPARAMBIL HOUSE, ASARIKKAD P.O.,ASARIKKAD, THRISSUR DISTRICT. 2. K.PREMA KUMARI,W/O.A.VIJAYAN, ASWATHY,KUNISSERY,ALATHUR, PALAKKAD DISTRICT. 3. THE UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE,IG TOWERS,2ND FLOOR, NEAR BUS STAND,MAIN ROAD,NENMMARA, PALAKKAD. ADV. SRI.T.C.SURESH MENON FOR R2 SRI.P.S.APPU FOR R1 SRI.A.R.NIMOD FOR R1 SMT.K.SHERIN MOHAN FOR R3 THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.F.A. 98 of 2009 ------------------------------------------------------ Dated: AUGUST 4, 2010 JUDGMENT Barkath Ali, J. This appeal under Sec.30 of the Workmen's Compensation Act by the 1st opposite party in WCC 83/2003 of Workmen's Compensation Commissioner Court, Thrissur, is directed against the order of the Commissioner dated July 31, 2008 awarding a compensation of Rs.72048/- to the applicant for the loss caused to him on account of the injuries sustained in a motor accident while the applicant was in the course of employment under the appellant/1st opposite party. 2. The applicant, aged 22, was a workman employed by the appellant/1st opposite party as a mechanic. On January 13, 2003 at about 11.45 a.m. the applicant has taken the Maruthi car bearing registration No.KL-12/6033 on trial run. While so, the car skidded and dashed against a tree on the side of the road. The applicant sustained fracture of shaft femur (left) and fracture of mandible left ankle. Claiming a compensation of Rs.5,31,288/-, he filed the petition under Sec.22 of the Workmen's Compensation Act before the Commissioner. 3. The appellant/1st opposite party denied the employer- MFA 98 of 2009 2 employee relationship between the 1st opposite party and the applicant. The 2nd opposite party to whom the car belonged also denied the liability. The 3rd opposite party/the insurer of the car admitted the policy, but denied the liability. 4. The applicant was examined as AW.1 and Exts.A1 to A5 were marked on his side. AW.2, the doctor who issued the disability certificate was examined on the side of the applicant. On the side of the 3rd opposite party, Ext.M1 was marked. On an appreciation of evidence the Commissioner found that the applicant was a workman under the 1st opposite party/appellant and that he sustained the injuries described in Ext.A2, the discharge summary issued from the hospital in an accident as alleged by the applicant and awarded a compensation of Rs.72048/- with interest at the rate of 12% per annum from 13.1.2003 till realisation against the 1st opposite party, the appellant. The appellant has come up in appeal challenging the said order of the Workmen's compensation Commissioner. 5. Heard the counsel for the appellant and the respondents. 6. The following points arise for consideration: 1. Whether the finding of the Commissioner that the applicant was a workmen under the appellant/1st opposite party as defined under Sec.2(1)(n) of the Act can be sustained? 2. Whether the compensation awarded is excessive? MFA 98 of 2009 3 Point No.1 7. The applicant was examined as AW.1 before the Tribunal. He testified regarding his employment under the first opposite party. Ext.A1 is the copy of the G.D.Entry of the Peechi Police Station dated January 15, 2003 which shows that the accident happened as alleged by the applicant. It also shows that he was a mechanic under the first opposite party. No document is produced by the first opposite party to show otherwise. Ext.A2 is the discharge summary issued from the Thrissur Heart Hospital showing that he was admitted therein on January 13, 2003 following a road traffic accident at 11.45 a.m. Therefore the Commissioner is perfectly justified in holding that the applicant was a workman under the first opposite party as defined under Sec.2(1)(n) of the Act and that he sustained the injuries described in Ext.A2 in an accident which arose out of and in the course of his employment. The finding of the Commissioner on this point is confirmed. Point No.2 8. The next question for consideration is whether the compensation awarded by the Commissioner is excessive. AW.2, the doctor, has issued Ext.A3 certificate of disability showing that the claimant has suffered a disability of 10% and his loss of earning MFA 98 of 2009 4 capacity is 22%. The Commissioner took the percentage of disability as 18%. Taking into consideration the nature of the disability suffered by the applicant, we feel that the percentage of disability assessed by the Commissioner is reasonable. The applicant was aged 22 at the time of the accident as revealed from Ext.A5 copy of the SSLC Book in which his date of birth is shown as November 4, 1980. The appellant/first opposite party did not produce any document to show the salary of the applicant. Therefore the Commissioner is perfectly justified in taking his salary as Rs.3000/- and awarding a compensation of Rs.72,048/- as provided under Sec.4 of the Act. Taking into consideration the nature of the injuries sustained, we feel that the compensation awarded by the Commissioner is just and reasonable. The Commissioner is also justified in exonerating the Insurance Company as the risk of the mechanic is not covered by the policy issued by the 3rd respondent. That being so, the appeal has to be dismissed. In the result the appeal is dismissed. No costs. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-