Court emphasizes proper legal assessment of liability under the Motor Vehicles Act, necessitating reevaluation of facts by the Commissioner.

JUDGMENT

Appellant is the 2^nd opposite party in W.C.C.No.57 of

2007 on the file of the Commissioner for Employees Compensation, Ernakulam.

2. Respondents 1 to 4 are the dependants of the deceased Younus, who sustained injuries while loading timber on 19.09.2007 in the lorry bearing registration No.KL-07 U 1148 which was insured with the appellant at the relevant point of time. The 3^rd respondent is now no more. The 4^th respondent has been recorded as his legal heir.

3. The appellant company does not dispute the accident. The substantial questions of law raised in this appeal are as under:

i) Whether in the facts and circumstances of the case, Commissioner went wrong in making the appellant liable when Ext.A1 FIR and the evidence tendered by AW2 co-worker would show that the deceased was not an employee of the insured?

ii) Has not the Commissioner erred in holding the appellant liable in view of the proviso to Section 147 (1)(b) of Motor Vehicles Act , 1988?

iii) Has not the Commissioner went wrong in making the appellant liable when there was no motor accident arising out of the use of the motor vehicle and loading of timber logs does not lead to motor accident.

4. Though service is complete, none appeared for the respondents. Heard the learned Senior counsel for the appellant and perused the records.

5. The learned Senior counsel for the appellant submitted that the appellant company had issued a policy to the 1^st opposite party, the registered owner of the vehicle. However, the said policy would cover the liability arising under the Employees Compensation Act , 1923 only in respect of the death or bodily injury to any employee engaged in driving the vehicle or being carried in the vehicle. He submitted that the vehicle involved is a goods carrier. He referred to Section 147 of the Motor Vehicles Act , 1988. He submitted that in view of the proviso to , unless there was a contract specifically covering liabilities arising under the Workmen’s Compensation Act, apart from the categories of employees mentioned under the proviso, no liability can be fastened on the insurer. In the case on hand, the employee who met with the accident was not an employee of the owner of the vehicle, the insured. The learned Senior Counsel referred to the evidence of AW2, a co-worker of the deceased. The said witness has categorically stated he along with the deceased were engaged in loading of timber. They used to work according to requirements in various places. In view of the evidence on record, it cannot be said that the deceased was an employee of the insured. The crucial question ought to have been considered by the Employees Compensation Commissioner was as to whether the appellant, the insurer, was liable to pay compensation.

6. I have carefully perused the impugned order. The learned Commissioner has framed an issue as to whether there was an employee-employer relationship. Without much discussion on the relevant aspects, the Commissioner concluded that there was an employee- employer relationship. No proper analysis has been done by the Commissioner while arriving at the said conclusion.

7. At the same time, I notice that in the written statement filed by the appellant before the Commissioner, there was no specific averment with regard to the provisions of Section 147 of the Motor Vehicles Act and also regarding the non-applicability of insurance coverage with respect to employees other than those who have been specifically mentioned in the proviso to . There was also no specific averment as to whether the person who was engaged for the purpose of loading timber can be considered as an employee of the owner of the vehicle. The learned Senior Counsel submitted that the contention raised, relying on the proviso to is p