IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 4TH JULY 2008 / 13TH ASHADHA 1930 MACA.No. 653 of 2004(C) ----------------------------------- OPMV.1474/1997 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/3RD RESPONDENT: -------------------------------------------- NATIONAL INSURANCE COMPANY LTD., MATTANCHERRY, COCHIN-2. BY ADV. SRI.RAJAN P.KALIYATH RESPONDENTS/CLAIMANT & R1 & 2 : ---------------------------------------------------- 1. R.P. SHAKKEER, S/O. PAREED, SAJANA RAMAPURATH HOUSE, ELAMAKKARA POST, COCHIN-26. 2. THE MANAGING PARTNER, ALAPPAD GENERAL STORES, D.H. ROAD, COCHI-16. 3. K.M. ZIAD, S/O. HYDROSE, PUTHENPURAPURAPARAMBIL HOUSE, EAST OF SASTHA TEMPLE, KALOOR, COCHIN-17. BY ADV. SRI.KALEESWARAM RAJ - R3 SRI.V.K.BALACHANDRAN - R2 SRI.S.SHYAM - R2 SRI.ANIL S.RAJ - R1 SMT.K.N.RAJANI - R1 SMT.MANJUSHA MOHANDAS - R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 653 of 2004(C) ORDER IN I.A.NOS.1602/04, 3046/04 & 3284/05 IN MACA.No. 653/2004 DISMISSED 04.07.2008 SD/-, M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 653 OF 2004 --------------------- Dated this the 4th day of July, 2008 JUDGMENT This appeal is preferred against the award passed by the Addl. Motor Accident Claims Tribunal, Ernakulam, in OP(MV) 1474/97. The claimant sustained injuries in an autorickshaw accident on account of which he had suffered fracture of the 2nd, 3rd, 4th and 5th meta carpel. The Tribunal awarded him a compensation of Rs.57,800/- with 9% interest and further directed the Insurance Company to pay the amount. The Insurance Company has challenged the award on two grounds. One namely the quantum and the other on the question of liability. 2. So far as quantum is concerned, when disability compensation is worked out as per the percentage there again one cannot grant fabulous amount as loss of amenities and enjoyment. Therefore, I reduce the loss of amenities and enjoyment compensation by Rs.5,000/-. It is seen that the Tribunal has granted Rs.15,000/- as compensation for pain and suffering, which also appears to be on the higher side when compared to the injuries sustained. Therefore, I reduce it by Rs.3,000-. Therefore the total MACA No.653/04 2 compensation is reduced by Rs.8,000/-. The most important question argued before me is regrading the liability of the Insurance Company. The claimant was a sales representative . According to him while he was travelling in the goods autorickshaw he sustained injuries. What is stated in the petition is that the claimant was travelling in the petti autorickshaw as sales representative under the contract of employment. There is noting stated in the claim petition under whose contract of employment and under whose insistence he was travelling. 3. Learned counsel for the Insurance Company would contend that there was no goods in the vehicle at all at the time of the accident. It is also submitted by him that it was a private auto which is not expected to be given for hire or reward. Further it is submitted that in a goods auto it cannot accommodate any other person. These matters had not been considered in the proper perceptive at all by the Tribunal. The Tribunal on a mere statement given by PW1 that he was proceeding in the auto as the representative of his company made it come to the conclusion that he was a representative of the owner of the goods covered by the Insurance policy. So far as position of law is concerned, there MACA No.653/04 3 cannot be any dispute. But it is the fact that has to be looked into to come to the conclusion. As stated by me earlier, (i) It was only a private auto (ii) There was no provision to carry any person in the goods auto (iii) It was a private auto which cannot be taken for hire or reward. When it is so, the finding of the Tribunal bringing it within the four corners of Asharani's case cannot be justified. Therefore it requires interference. Considering the prevailing interest, the interest is reduced from 9% to 7%. Thus the liability of the Insurance Company cast upon by the Tribunal has to be set aside. Therefore the MACA is disposed of as follows: The claimant is awarded a compensation of Rs.49,800/- with 7% interest on the said sum and respondents 1 and 2 in the claim petition are jointly and severally liable for the same. The Insurance Company is exonerated from the liability. M.N.KRISHNAN, JUDGE vps MACA No.653/04 4