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Kerala High Court · body

2010 DIGILAW 820 (KER)

New India Assurance Company v. Savichan K. D.

2010-10-22

M.N.KRISHNAN

body2010
Judgment : 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 can be considered as an employee 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 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 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. When questions are put to him in the cross-examination the claimant only gives evasive answers and therefore the evidence is 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 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 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.