IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 18 of 2007(B)
1. THE NEW INDIA ASSURANCE COMPANY LTD,
... Petitioner
Vs
1. BHASKARAN, S/O.PACHAN, THUDATHIL VEEDU,
... Respondent
2. M/S.GREAT INDIA HEALTH CARE MANAGEMENT
For Petitioner :SRI.KKM.SHERIF
For Respondent :SRI.PIRAPPANCODE V.S.SUDHIR
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :09/12/2008
O R D E R
M.N. KRISHNAN, J
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M.F.A.(W.C.C) No. 18 OF 2007
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Dated this the 9th day of December, 2008
JUDGMENT
This appeal is preferred against the order of the Workmen’s
Compensation Commissioner, Thiruvananthapuram in W.C.C.No.
60/2001. The workmen claims to be a worker under the 1st
opposite party before the said court and the Compensation
Commissioner fixed compensation at Rs. 32,734/- and passed an
award. It is against that decision the Insurance Company has come
up in appeal.
2. The learned counsel for the Insurance Company has made
available before me the relevant records for the determination of
this case. Heard the learned counsel for all. It has to be borne in
mind that the contention of the 1st respondent as per para 5 of the
written statement is to the effect that “No such person was
employed by the opposite party directly.” In a reply also it is
specifically contended that the claimant was working as an
employee under its Civil contractor Mr. Vijayan. So until and unless
it is proved that Vijayan is an employee under the 1st opposite
party, there cannot be a further employee employer relationship
M.F.A.NO. 18/2007
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between the 1st opposite party and the present claimant. When the
1st opposite party contends that they have entrusted the work
contract to Mr. Vijayan and that Vijayan had employed the present
applicant, we cannot call the present applicant as an employee of
the 1st opposite party. It is very specifically sated in a letter dated
23.9.2000 that “we would like to inform you that Mr. Bhaskaran,
casual labourer working under one Civil Contractor Mr. A. Vijayan
had an accident at Kings Hospital Construction site on 24.8.2000”.
So 1st opposite party has got a specific contention that Vijayan was
only a Civil Contractor under the said party and therefore
employment made by Vijayan of the applicant can be only a
employee under the contractor. The Insurance policy specifically
contains the exclusion clause to the effect that the workers of a
contractor are specifically excluded from the purview of the
coverage. Therefore the Insurance company cannot be saddled
with the liability in the light of the policy conditions. But that does
not mean that the claimant is not entitled to any relief. The
claimant can proceed against the 1st opposite party for the
realization of the amount.
Therefore the M.F.A. is allowed and the Insurance company is
M.F.A.NO. 18/2007
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exonerated from the liability and the claimant before the
Compensation Commissioner is permitted to realise the amount
awarded from first opposite party by Compensation Commissioner.
The amount deposited by the Insurance Company shall be
reimbursed when a proper application is made. If the first opposite
party has any claim against the immediate employer he may resort
to such proceedings as permitted by law.
M.N. KRISHNAN,JUDGE
vkm