IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 303 of 2009()
1. THE NEW INDIA ASSURANCE COMPANY
... Petitioner
Vs
1. SAVICHAN K.D., S/O.DEVASSIA,
... Respondent
2. FR.JOHN KUMMATHETH, CATHOLIC BISHOP'S
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SMT.CELINE JOSEPH
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :22/10/2010
O R D E R
M.N. KRISHNAN, J.
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M.F.A. NO. 303 OF 2009
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Dated this the 22nd day of October, 2010.
J U D G M E N T
This is an appeal preferred against the
order of the Workmen’s Compensation
Commissioner, Kannur in W.C.C. 24/03. The
applicant, claimed to be an employee under the
opposite party sustained injuries in a road
accident and he has been awarded a compensation
of Rs.98,850/-. The insurance company has
disputed the employer-employee relationship as
well as the coverage under the policy. The
substantial questions of law as allowed as per
the amendment application are as follows.
“i. Whether the Commissioner is
justified in holding that the
applicant who is employed as a
“Karysthan” in a Biship’s house
M.F.A.. 303 OF 2009
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of the insured who comes under the
proviso to Section 147 of the
M.V.Act.
ii. Whether a casual rider of a
motorcycle can be considered as a
driver employed by the insured who
come under the proviso to S.147 of
the M.V.Act and
iii. Whether the Commissioner is
justified in not considering the
Supreme Court decision which says
that the interest is payable only
from the date of adjudication.”
Points 1 to 3:
2. In order to entitle the claimant to
have compensation it is imperative to establish
the employer-employee relationship. Now the
sphere of controversy between the parties is
that the claimant is an employee in the Bishop’s
house and he is not an employee of the first
opposite party and therefore there is no
M.F.A.. 303 OF 2009
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employer-employee relationship and therefore the
claim will not lie. When it is a Bishop’s house
and a person is employed, there are
methodologies by which the parties can
successfully prove under whom the claimant is
working. If the claimant is able to establish
that he is working under the first opposite
party then he can be classified as an employee
for the reason that one need not be a full time
rider of a vehicle but in the discharge of the
duty and in the course of employment if he is
directed by the employer to ride a vehicle and
he meets with an accident the position will be
covered. But the fundamental question of
employer-employee relationship must be
established. When questions are put to him in
the cross-examination the claimant only gives
evasive answers and therefore the evidence is
M.F.A.. 303 OF 2009
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not properly adduced and the appreciation of the
same is not in accordance with law. Therefore
the matter requires reconsideration at the hands
of the Compensation Commissioner on employer-
employee relationship.
3. Then the learned counsel for the
insurance company again would contend that even
if it is found that the applicant is an employee
under the first opposite party, being not a paid
driver, the terms and conditions of the policy
excludes the coverage of such person and
therefore the insurance company shall not be
saddled with the liability. This matter also has
to be considered and the purport and impact of
S.147 of the M.V.Act also requires
reconsideration and that also can be looked
into. Therefore the award under challenge is
set aside and the matter is remitted back to the
M.F.A.. 303 OF 2009
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Compensation Commissioner for the following.
(1) The claimant has to adduce evidence to
satisfy that there is employer-employee
relationship between him and the first opposite
party and the insurance company can also tender
evidence in that regard so that the Court can
arrive at a reasonable conclusion.
(2) The contention of the insurance company
that even if the employer-employee relationship
is found whether by virtue of the terms and
conditions of the policy the present applicant
will be covered be also decided.
4. I do not propose to interfere with the
quantum awarded in this case and therefore the
scope of remand is only for these two limited
purposes.
5. The Commissioner is directed to fix a
date, send notice to the parties and give a date
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of hearing of the case. If any amount is lying
in deposit, let it remain there till a final
decision is taken. Since he had sustained
serious injuries the Compensation Commissioner
shall dispose of the matter within three months
from the date of first appearance before Court.
The M.F.A. is disposed of accordingly.
M.N. KRISHNAN, JUDGE.
ul/-