IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 MFA.No. 178 of 2006 --------------------- WCC.355/2003 of W.C.C.,THRISSUR .................... APPELLANT: 2ND OPPO.PARTY --------------------------------- THE ORIENTAL INSURANCE CO,.LTD., THRISSUR, REPRESENTED BY ITS ADMINISTRATIVE OFFICER, REGIONAL OFFICE, ENRAKULAM NORTH,KOCHI 18 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS: APPLICANT. ------------------------------- P.K.VINOJ, S/O.KUMARAN, PALAKKAL HOUSE, PATTIKKAD P.O. THRISSUR. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K.P. BALACHANDRAN, JJ. -------------------------------------------------------------- M.F.A. No 178 of 2006 ------------------------------------------------------------- Dated this the 4th August 2008 JUDGMENT Koshy,J. The respondent-applicant filed an application for compensation before the Workmen's Compensation Commissioner, Thrissur contending that while employed as cleaner in a lorry he sustained injury during the course of employment as a result of which his left ulna got fractured. The lorry was owned by the first opposite party. Doctor who examined him assessed permanent disability at 9% and loss of earning capacity as cleaner at 27%. Commissioner awarded compensation for 25% loss of earning capacity and directed the second opposite party, the Insurance Company, to deposit the amount after rejecting the application for referring the claimant to Medical Board. The contention of the Insurance Company is that the Commissioner is not justified in dismissing the application to refer the applicant to Medical Board especially when the Commissioner himself reduced the loss of earning capacity assessed by the doctor. It is further contended that the applicant was not an employee of the insured and even if he was employed as a cleaner he is not covered by the insurance policy. MFA 178/06 2 Only if he is covered by the insurance, Insurance Company has got liability. It is to be noted that despite service of notice, first opposite party was absent. The burden is on the applicant to plead and prove that the applicant is an employee covered by the insurance. According to him, he was employed as cleaner in the tempo van, but there was no evidence to prove the same. Apart from that Ext M1 statement of the applicant before police at the time of accident shows that he was a goldsmith by profession and accident occurred when he was unloading firewood from a stationary vehicle for the people of his profession. Therefore, there is no employer-employee relationship. No evidence was adduced by the applicant to show that he was employed as cleaner apart from the oral testimony. Burden of the applicant was not discharged. Therefore we are unable to support the findings of the Commissioner. The Commissioner directed the insurance Company to deposit an amount of Rs 1,08,143/- with interest at 12% per annum from 15.06.2003 till date of deposit. At the time of granting stay we directed to release Rs 10,000/- to the applicant. In the above facts and circumstances of the case, the order passed by the Commissioner is set aside and the appeal is allowed as above. The sum of Rs 10,000/- which was MFA 178/06 3 directed to be released shall not be recovered from the applicant in the facts and circumstances of this case and the balance amount deposited by the Insurance Company should be returned to the appellant. Sd/- J.B. KOSHY Judge Sd/- K.P. BALACHANDRAN Judge 04/08/2008 en [true copy]