IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA.No. 274 of 2009()
1. THE ORIENTAL INSURANCE COMPANY LIMITED
... Petitioner
Vs
1. V.RAJKUMAR, S/O. VELAYUDHAN,
... Respondent
2. KRISHNADASAN, S/O. APPUKKUTTAN NAIR
3. P.RAMAKRISHNAN, S/O. KORAN,
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.P.V.CHANDRA MOHAN
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :02/03/2010
O R D E R
M.N. KRISHNAN, J.
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M.F.A. NO. 274 OF 2009
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Dated this the 2nd day of March, 2010.
J U D G M E N T
This is an appeal preferred against the order of the
Workmen’s Compensation Commissioner, Thrissur in
W.C.C.167/03. The applicant in the case has sustained some
injuries on account of an accident while he was driving an
auto rickshaw. The case projected by the claimant is that he
was an employee under the first respondent in the case and
the 2nd respondent was the previous owner and R3 is the
insurance company. So the case of the claimant itself is that
he is an employee under the first respondent in the case.
The finding of the Compensation Commissioner is that there
is a relationship of an employee-employer between the 2nd
respondent and the claimant. It is fundamentally wrong. It
cuts at the root of the case. Therefore that requires
reconsideration.
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2. The learned counsel for the respondent would
contend before me that the vehicle was transferred by the 2nd
respondent in favour of the first respondent and the
registration was also changed but before the change of
insurance the accident took place and therefore by virtue of
the deeming provisions u/s 157(1) of the M.V.Act it has to be
considered as a valid policy. If factually it is correct then
certainly the insurance company will have the obligation to
pay the amount. But if the policy is taken in the name of the
previous owner after the change of registration in the name
of the first opposite party then so many defences may be
available to the insurance company which cannot be shut
out. Therefore on that point the award is liable to be
interfered with.
3. Secondly the question of disability or in other
words loss of earning capacity. Loss of earning capacity is to
be assessed as per the full Bench ruling of this Court
reported in Vanajakshan v. Joseph (2003 (2) KLT 462
(FB) which says that loss of earning capacity is to be
M.F.A.. 274 OF 2009
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assessed taking into consideration the inability to do all the
work which one is capable of doing and not in relation to a
particular work which a person was doing. It is in that angle
the disability has to be assessed and compensation has to be
worked out. If the materials are available that also may be
considered or otherwise loss of earning capacity in the light
of the Full Bench decision may be obtained and the matter be
decided.
4. Thirdly on the question of interest. Since the
matter is going back let that question be reconsidered in the
light of the available decisions on the date of decision of the
case. I say so because at present this Court had taken the
view that in the light of the Constitution Bench ruling
reported in Pratap Narain Singh Deo v. Shrinivas
Sabata (AIR 1976 SC 222) which holds that interest is due
from the date of accident. So the award under challenge is
set aside and the matter is remitted back to the Court for
fresh consideration and all concerned are permitted to
produce documentary as well as oral evidence in support of
M.F.A.. 274 OF 2009
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their respective contentions and let the matter be disposed of
in accordance with law. The Compensation Commissioner
shall fix a date of appearance and issue notice to the parties
for further proceeding in the matter. Let there be an
expeditious disposal of the case.
M.N. KRISHNAN, JUDGE.
ul/-