IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 157 of 2002()
1. ABDUL KHADER KUNJU MUHAMMED,
... Petitioner
Vs
1. THANKAMMA, MANALIPARAMBUYALIL,
... Respondent
2. BINOY GEORGE, MANALIPARAMBUYALIL,
3. BIJU GEORGE, MANALIPARAMBUYALIL,
4. THE MANAGER, NATIONAL INSURANCE COMPANY,
For Petitioner :SRI.T.P.VARGHESE
For Respondent :SRI.LAL GEORGE
The Hon'ble MR. Justice G.SIVARAJAN
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :12/06/2008
O R D E R
J.B. KOSHY & P.N. RAVINDRAN, JJ.
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M.F.A.NOS. 157 & 435 OF 2002
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Dated this the 12th day of June, 2008.
JUDGMENT
Koshy, J:
These two appeals are filed by the employer as well as the
insurance company against the same order of the Workmen’s
Compensation Commissioner. Sri. Lal George, Advocate, appears for
the insurance company and Sri.T.P. Varghese, Advocate, appears for
the employer. Sri. Mathew John, Advocate, who has filed vakalath for
the third respondent in M.F.A.No.157 of 2002 appears for the
claimants. The application was filed by the mother and brothers of
the deceased employee. According to them, while the deceased
was employed as a helper/porter in Bus No.KEK 446 on 14.10.1996,
the bus went into a pit and capsised and in that accident, 4
persons died, two were passengers and two were employees.
Exts.A3 F.I. Statement, A4 scene mahazar and A5 charge sheet were
produced to prove the same. But the employer filed a written
statement stating that his bus was not involved in the accident. He
further stated that the deceased was not employed by him. But
from the F.I. Statement, it can be seen that the deceased was an
MFA.NOS.157 & 435/02. .
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employee of Bus No.KEK 446. It is true that all employees are not
covered by the welfare fund scheme. Apart from driver and
conductor other workers are employed by the employer. But
usually for welfare fund scheme only driver and conductor are
covered. The Tribunal found that the deceased was employed by
the first opposite party. Considering the evidence adduced in the
case, we are of the view that it is a finding of fact based on
evidence and no interference is required. The contention of the
insurance company is that claim was filed under the Workmen’s
Compensation Act as the accident occurred in the course of
employment and it is arising out of the employment. Being an
employee, the deceased is not a third party or a passenger and
employees can be covered only if they are covered under the
Workmen’s Compensation Act. Ext.R1 policy shows that only
conductor and driver are covered, that too only to the extent of
workmen’s compensation liability. The deceased employee was
not covered by the policy. In this connection we refer to the Apex
Court decision in Ramashray Singh v. New India Assurance
Company Ltd. & others (AIR 2003 SC 2877=AIR SCW 3601).
Therefore the insurance company is liable to pay the amount
awarded. On the facts of the case, we are of the opinion that no
MFA.NOS.157 & 435/02. .
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grounds are made out to pay the penalty. The appellant in
M.F.A.No.157/2002 is not liable to pay the penalty amount. The
compensation awarded was Rs.2,16,910/=. The insurance company
deposited the amount with interest. An interim stay was granted for
disbursing the amount. On the facts of the case, out of the
deposit made, we direct the Commissioner to release Rs.50,000/=
to the 1st respondent/mother for the time being and that amount
can be recovered by the insurance company from the employer/1st
opposite party/the insured. The claimant can realise the balance
amount from the employer.
Both the appeals are disposed of as above.
J.B. KOSHY, JUDGE.
P.N. RAVINDRAN, JUDGE.
cl
MFA.NOS.157 & 435/02. .
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J.B. KOSHY &
P.N. RAVINDRAN, JJ.
M.F.A.NOS. 157 &
435 OF 2002
JUDGMENT
12th day of June, 2008.