NEW INDIA ASSURANCE CO. LTD. Vs. PRAKASAN

JUDGEMENT

(1.) THIS appeal is filed by the third respondent in an application filed before the Workmen's Compensation Commissioner. We refer to the parties going by their status in the proceedings before the Commissioner. The appellant had provided insurance cover for a motor vehicle belonging to the first respondent Abhilash. The applicant suffered injuries in an accident. He pleaded in his application before the Commissioner that he was employed with the second opposite party, Rajesh, in the work of brick business and on the date of accident he was employed by the second opposite party and the accident occurred out of and in the course of such employment.

(2.) THE appellant/insurer pleaded that it had not provided any insurance cover for the second opposite party Rajesh and that the insurance cover was only for the first opposite party Abhilash. Though in his proof affidavit, the claimant gave the version that the business was jointly conducted by opposite parties 1 and 2, he had no such case in his application. We see the version in the proof affidavit of the applicant as merely an after -thought, in the backdrop of the situation that the insurer has pleaded that the insurance cover was only for the first opposite party. The appreciation of evidence in this regard is, in our view, egregiously erroneous in law in as much as the Commissioner could not have acted on any material contradiction or contradicting plea of the claimant in the application and, in the evidence. Since the claim petition proceeded on the sole basis that the claimant was employed with the second opposite party Rajesh, there was no room to mulct the appellant, who is the insurer of the first opposite party before the Commissioner, with any liability to indemnify. Hence, this appeal succeeds.