The insurer is liable to indemnify the employer for work-related injuries, regardless of the employer's failure to present a notice of indemnity, as the insured-insurer relationship is distinct from that of a contractor.

JUDGMENT

Dated this the 08^th day of January, 2025 This appeal is filed challenging the order dated 20.04.2012 in WCC No.54 of 2002 by the Commissioner for Workmen’s Compensation and Deputy Labour Commissioner, Kollam. Appellant was the 1^st opposite party and respondents 1 and 2 were the applicant and 2^nd opposite party respectively in the said proceedings. Parties are hereinafter referred to as per their status in the proceedings before the Commissioner.

2. Applicant was employed by the 1^st opposite party as a mahout to an elephant. On 15.10.2001, while he was engaged in loading a wooden log pulled by the elephant into a lorry, the log fell from the trunk of the elephant onto the right leg of the applicant thereby leading to injuries. The applicant was aged 40 years at the relevant time and was earning a monthly wage of Rs.4,500/-. The applicant preferred an application under Section 22 of the Employees Compensation Act, 1923 (hereinafter referred to as the “ ECA , 1923”) claiming compensation of Rs.1,00,000/- from the 1^st and 2^nd opposite parties viz., the employer and the insurer respectively.

3. The 1^st opposite party contended that the applicant was not employed under him and that an accident as alleged had not happened involving his elephant. He contended that the elephant was not engaged in wood logging on the relevant day. The 1^st opposite party claimed that he was a total stranger to the proceedings and refuted any liability to pay compensation. He did not however place any contention regarding the claim of indemnification. The 2^nd opposite party that is, the Insurance Company contended that the risk of the mahout under the policy issued by them covered only injuries inflicted by the elephant and did not apply to any other injury. The injury that is alleged to have occasioned to the applicant was not an employment injury covered under the policy. It was also contended that the 1^st opposite party never informed the insurer about the accident. The 2^nd opposite party also challenged the maintainability of the application and the amount of compensation claimed.

4. The Commissioner framed three issues for consideration and the parties proceeded to tender evidence. AW1 was examined from the applicant's side and Exts.A1 to A4 were marked. No evidence was tendered from the 1^st and 2^nd opposite parties. The Commissioner in the impugned order found that there existed an employer-employee relationship between the 1^st opposite party and the applicant. It was also found that the contention that loading workers alone are engaged in the work of loading logs onto the vehicles cannot be accepted as heavy logs are loaded into the vehicles with the help of elephants. The Commissioner also concluded that the 1^st opposite party had admitted that an incident in which the applicant got injured had indeed taken place. Taking note of Exts.A1 and A4, it was concluded that the applicant sustained injury in the accident arising out of and in the course of employment. As regards the liability of the 2^nd opposite party, it was noted that they had failed to produce the policy documents in support of their contentions. It was concluded by the Commissioner, based on evidence, that the accident occurred during the course of duty of the applicant as mahout and it can certainly be said to have been inflicted/caused by the elephant. As regards the alleged failure on the part of the 1^st opposite party to give information and details regarding the accident, it was concluded that such failure, if any, does not absolve the 2^nd opposite party as insured, from the liability under the policy. In spite of the same, the Commissioner arrived at a findin