Dismissed

Oriental Insurance Co.Ltd v. Moly @ Philomina

Kerala HC16 Oct 2020MFA (ECC)/184/2009

Case brief

AI extract

What is this about?

In this workmen's compensation appeal filed by Oriental Insurance Co. Ltd., the Court dismissed the appeal against the Commissioner's award. Upholding the Commissioner's finding based on widow's testimony, the Court held that the deceased was an employee of the first respondent at the time of the fatal road accident.

What did the court decide?

Appeal dismissed; Commissioner's award of compensation remains intact.

Oriental Insurance Co.Ltd Vs Moly @ Philomina — Insurance | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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FRIDAY, THE 16TH DAY OF OCTOBER 2020 / 24TH ASWINA, 1942

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MFA.No.184 OF 2009

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AGAINST THE ORDER IN WCC 24/2006 DATED 22-05-2009 OF W.C.C.,ERNAKULAM

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APPELLANT/2ND OPPOSITE PARTY:

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THE ORIENTAL INSURANCE CO.LTD EDAPPALLY, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM, NORTH, KOCHI - 18.

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BY ADV. SRI.GEORGE CHERIAN (SR.)

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RESPONDENTS/APPLICANTS & 1ST OPPOSITE PARTY:

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1 MOLY @ PHILOMINA

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PANDARAPARAMBU, THEKKUMBHAGAM,, THRIPUNITHURA.

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2 SMT.INDU BABU.M.B. D/O. BADU PANDARAPARAMBU, THEKKUMBHAGAM,, THRIPUNITHURA

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3 SRI.SHIBU BABU S/O. BABU PANDARAPARABU, THEKKUMBHAGAM,, THRIPUNITHURA.

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4 SRI.SINESH KHANNA, KALARICKAL HOUSE, PONEKKARA, ELAMAKKARA P.O. (DELETED).

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R4 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 24.08.17 IN I.A.NO.3171/17 IN MFA 184/09.

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R1-3 BY ADV. SRI.ANIL S.RAJ R1-3 BY ADV. SMT.ANILA PETER R1-3 BY ADV. SMT.K.N.RAJANI R1-3 BY ADV. SRI.RADHIKA RAJASEKHARAN P.

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THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15-102020, THE COURT ON 16-10-2020 DELIVERED THE FOLLOWING:

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MFA.No.184 OF 2009

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JUDGMENT

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Dated this the 16th day of October 2020

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The appellant - Oriental Insurance Co.Ltd. is

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the 2^nd opposite party in W.C.C No.24/2006 before

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the Commissioner for workmen's Compensation, Ernakulam.

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The Commissioner awarded compensation

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fastening a liability on the appellant for a sum

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of Rs.3,45,040/- with interest.

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In this appeal, the contention of the appellant is that, the alleged employer and employee relationship as between the deceased

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Babu and the 1^st respondent in the proceedings was

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not established. The accident occurred on 21.06.2005 while Sri.Babu, the husband and father

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of the dependents, was traveling in a tempo van

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bearing registration No.KL.7F.1602 and hit

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against a lorry bearing registration No.KA-09-

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MFA.No.184 OF 2009

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As a result of the fatal injuries, Sri.Babu died. The 1^st respondent, the owner of the vehicle did not contest the proceedings. The appellant disputed its liability contending that, the insured had not employed the deceased for any work and since the accident did not arise during

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the course of the employment, the dependents were not entitled to compensation.

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evidence on record especially AW1, the widow of the deceased found that, employer and employee relationship existed between parties and passed the impugned award.

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appellant and respondent Nos. 1 to 3 (the claimants) in the appeal.

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The learned counsel for the appellant

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contended that, going by Ext.A1 FI statement as

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well as Ext.A3 inquest report, it could be seen

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MFA.No.184 OF 2009

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that, the deceased was traveling in the tempo van

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as a loading worker employed by Rajeswary Film Company and was carrying a film box in the

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vehicle.

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The learned counsel for the respondents

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strongly disputed this version and submitted that

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those documents cannot be attached any evidentiary value, since they were not proved in

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the manner known to law. The learned counsel for

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the respondents, on the other hand, relied on the testimony given by AW1, the widow of the deceased

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and submitted that there is clear evidence to show that Sri.Babu was engaged as cleaner of the Tempo Van by Sri.Pradeep, who was the driver of the 1^st respondent. Looking at the manner in which the evidence was appreciated by the Commissioner also, it could be seen that AW1's evidence was

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rightly believed. Only because the 1^st

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respondent's driver hired the service of a third

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MFA.No.184 OF 2009

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person, the owner cannot disown his liability

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contending that his employee was not

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authorised. AW1 testified that Sri.Pradeep used to engage Sri.Babu as cleaner regularly. There is

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no reason to disbelieve this version. If that be so, first respondent must have had knowledge of

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such arrangement of his own driver. AW1 however conceded that on the rare occasions, the deceased used to work in Film Distribution Company.

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Taking the whole evidence into account,

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it is clear that, on the date of accident the

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deceased was indisputably travelling in the tempo van. Going by AW1 evidence, Babu was employed as

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cleaner on the date of accident. The statement of

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1^st respondent in Ext.A3 inquest report was not proved by citing him as witness in the case. The first informant in Ext.A1 was also not summoned

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and examined in Court. In any view of the matter,

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the statement in Exts.A1 and A3 cannot have a

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MFA.No.184 OF 2009

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superior evidentiary value than that of the evidence of AW1, which was given on oath. This being the position, I do not find any reason to interfere with the finding of the Commissioner that the deceased was the employee of the first respondent on the date of accident. Moreover, there is no substantial question of law as involved in this appeal, since the existence of the employer and employee relationship is basically a question of fact to be proved by evidence.

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In the result, this appeal fails and it is dismissed.

Sd/-

T.V.ANILKUMAR

JUDGE

hmh

Oriental Insurance Co.Ltd v. Moly @ Philomina

Case brief

What is this about?

What did the court decide?

Oriental Insurance Co.Ltd v. Moly @ Philomina

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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