Sankaran, J.

In this appeal filed by the Oriental Insurance Co.Ltd., the appellant challenges the jurisdiction of the Commissioner for Workmen's Compensation to pass an order allowing recovery from the appellant, the compensation awarded to the workman, the first respondent.

2. The first respondent herein, applicant before the Commissioner, was working as a mahout of the elephant by name "Dhananjaya" owned by the second respondent herein. On 28.3.1998, while the applicant was engaged in his work as a mahout at a festival of Maniyoor Temple, he fell down while he was getting down from the top of the elephant as he was kicked by the elephant. The applicant sustained injuries. He was treated as an inpatient in the Medical College Hospital, Kozhikode from 28.3.1998 to 25.4.1998. He had to undergo a surgery, as he sustained fracture of his right femur. The Assistant Professor of Surgeon, Medical College Hospital, Kozhikode certified that the applicant sustained disablement and it was assessed at 30%. A sum of Rs.2 lakhs was claimed by the applicant as compensation. The employer, who is the owner of the elephant, as well as the insurance company were made opposite parties before the Commissioner. The Commissioner found, on evidence, that the applicant is entitled to compensation of Rs.45,494.40.

3. The insurance company was arraigned as one of the opposite parties on the ground that Ext.R2 insurance policy was available to cover the accident. The insurance company contended in the written statement that since no policy was issued indemnifying the employer under the Workmen's Compensation Act, the insurance company is not liable to pay compensation. The Commissioner found that Ext.R2 policy covers the claim for compensation by the mahout under the Workmen's Compensation Act and, therefore, held that the insurance company is liable to pay the amount of compensation.

4. Learned counsel for the appellant contended that the Commissioner has no jurisdiction to fix the liability on the insurance company. Ext.R2 policy is not a policy under the Workmen's Compensation Act. The policy was intended for the protection of the elephant and to compensate its owner. The policy does not cover the claim for compensation for the injury sustained by the employee during the course of employment. The counsel submitted that in respect of the policies issued to cover claims under the Workmen's Compensation Act, it would be so specified and the policy available in this case is not such a policy. He also submitted that in the case of policy issued to cover workmen's compensation, there would be no mention of any sum assured as the compensation is to be fixed by the Commissioner under the Workmen's Compensation Act, whereas in Ext.R2 policy the sum assured is mentioned, which indicates that Ext.R2 is not a policy which can be availed of by the workman in respect of the accident. The counsel also contended that the

insured has not approached the insurer and, therefore, the mahout is not entitled to file an application before the Commissioner. He contends that the remedy, if any, of the mahout is to approach the civil court.

5. Learned counsel for the first respondent-applicant contended that there is no difference between Ext.R2 policy and any other policy. There can be no dispute that the employer is liable. If so, the insurer is liable to indemnify the employer. The counsel also relied on the decisions in New India Assurance Co. Ltd. V. R.Shridhara and another (1991 ACJ 204) and United India Insurance Co. Ltd. V. Vasudevan (1989(1) KLT 366(F.B.)).

6. Ext.R2 policy shows that the certificate of insurance is issued "for the insurance of elephant for the members of All Kerala Elephant Owners' Association". As against the column "Name of the insured", it is mentioned as "All Kerala Elephant Owner's Association" and "K. Govindan Chettiar". The period of insurance is from 19.6.1997 to 18.6.1998. Name of the elephant and the description of the

elephant are sho