IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 MACA.No. 491 of 2006(D) ----------------------------------- [O.P(MV).NO.1312/2000 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI] .................... APPELLANT/3RD RESPONDENT IN THE O.P: ---------------------------------------------------------------- UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, ARAFA BUILDINGS, COURT ROAD, MANJERI, REPRESENTED BY THE ADMINISTRATIVE OFFICER UNITED INDIA INSURANCE CO. LTD., REGIONAL OFFICE, ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI-11. BY ADV. SRI.A.R.GEORGE. RESPONDENTS/CLAIMANT/RESPONDENTS AND RESPONDENTS 1 & 2 IN THE O.P: ----------------------------------------------------------------------------------------------------------------------- 1. KAMPALAVAN UMMER, S/O.KAMPALAVAN ABOOBACKER, KAMBALAVAN HOUSE, KAKKOD, VAKKALOOR, P.O. KAVANUR, MALAPPURAM DISTRICT. 2. T.HAMZA, S/O.ABDULLA MUSALYAR, THIRUTHIL HOUSE, MANHAPATTA P.O., TRIKKALANGOD, MALAPPURAM DISTRICT. * 3. KRISHNANUNNI, S/O.SANKARAN NAIR, KIZHAKKETHANIKKAD HOUSE, ALUNGAL, P.O.ELAMKUR, MALAPPURAM DISTRICT. *THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DT. 16/07/08 ON I.A. 1701/08. R1 BY ADV. SRI.T.K.AJITH KUMAR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011, ALONG WITH M.A.C.A. NO.210 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q.BARKATH ALI, JJ. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= M.A..C.A. Nos. 491/2006 & 210/2007 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 5th January, 2011 JUDGMENT Barkath Ali, J. Both these appeals arise out of the same judgment and award of the Motor Accidents Claims Tribunal, Manjeri in O.P. (MV) No.1312 of 2000 dated April 26,2005 awarding a compensation of Rs.1,13,763/- for the loss caused to the claimant on account of the injuries sustained by him in a motor accident. 2. On January 30, 1999 at about 9 a.m. while the claimant was travelling in a lorry bearing registration No.KRD 7263 from Vakkaloor to Edavanna driven by the 2nd respondent, the left front door of the lorry opened and the claimant was thrown out of the vehicle. He sustained the following injuries in the accident:- 1) Maemorrhagic contusion in the basi frontal lobes anteriorly. 2) Tiny focal haemorrhages in both temporal lobes. MACA 491/2006 & con. case 2 3) Mild intraventricular bleed. 4) Mild cerebral oedema. 5) Fracture nasal bone. 6) Lost eye sight of one eye. 7) Other injury all over the body. Alleging negligence against the 2nd respondent, the claimant filed the O.P. before the tribunal under section 166 of the Motor Vehicles Act claiming a compensation of Rs.2,25,000/- 3. Respondents 1 and 2, the owner and driver of the offending lorry, remained absent before the Tribunal. The 3rd respondent insurer of the offending vehicle filed a written statement admitting the policy of the offending lorry. 4. Heard the learned counsel for the claimant as well as the learned counsel for the Insurance Company. 5. The claimant was examined as PW1 and EXts.A1to A5 and Ext.X1 were marked on the side of the claimant. No evidence was adduced by the respondents in the O.P. On an MACA 491/2006 & con. case 3 appreciation of the evidence, the Tribunal found that the accident occurred due to the negligence of the 2nd respondent and awarded a compensation of Rs.1,13,763 with interest @ 6% per annum from the date of petition till realization and a cost of Rs.2,000/-. 6. M.A.C.A.No.491 of 2006 is filed by the 3rd respondent Insurance Company contending that the policy is an Act only policy and the risk of the claimant is not covered under the same. M.A.C.A.No.210 of 2007 is filed by the claimant claiming enhancement of the compensation awarded by the Tribunal. 7. The following points arise for consideration:- 1) Whether the claimant was a gratuitous passenger in a goods carriage and if so whether his risk is covered by the insurance policy of the offending vehicle. 2) Whether the percentage of the disability of the claimant assessed by the Tribunal is correct. 3) Whether the claimant is entitled to any enhanced compensation. 8. The Tribunal awarded total compensation of MACA 491/2006 & con. case 4 Rs.1,13,763/-. Break up of the compensation awarded is this:- Transport to hospital : Rs. 500 Extra nourishment and : Rs. 6,800 bystander's expenses. Medical expenses : Rs. 14,963 Pain and suffering : Rs. 15,000 Disability : Rs.76,500 ------------------ Total : Rs.1,13,763 ======= 9. The specific case of the insurance company was that the claimant was a gratuitous passenger in a goods vehicle and that therefore his risk is not covered by the insurance policy issued in respect of the offending vehicle. The learned counsel for the claimant would argue that the claimant was a loading and unloading worker and for that purpose he has travelled in the goods vehicle and that therefore his risk is covered by the relevant insurance policy. The Tribunal has not considered the said question, though the 3rd respondent Insurance Company raised such a contention in the O.P. MACA 491/2006 & con. case 5 10. Therefore we feel that the matter has to be remanded to the Tribunal to consider whether the claimant was a loading and unloading worker and if so, whether his risk is also covered by the insurance policy issued in respect of the offending vehicle. 11. The next question for consideration is whether the claimant is entitled to any enhanced compensation. The Tribunal, took the disability of the claimant as 30%, adopted the multiplier of 17, took his annual income as Rs.15,000/- and awarded Rs.76,500/- for the disability caused. The main contention raised by the Insurance Company was that in Ext.X1 report of the Medical Board it was certified that the claimant suffered disability of 6% and that 17% disability taken by the Tribunal is not correct. The claimant lost vision of one eye for which under Workmen's Compensation Act the disability prescribed is 30% But as we are remanding the matter for fresh disposal to the Tribunal, the Tribunal is also directed to consider the above aspect. The annual income adopted by the Tribunal as Rs.15,000/- appears to MACA 491/2006 & con. case 6 be very low. 12. For all these reasons, we allow both these appeals and set aside the impugned award. The matter is remanded to the Tribunal for fresh consideration in accordance with law. Both the parties can adduce further evidence if any to prove their case. The Tribunal shall dispose of the case as early as possible, but not later than two months from the date of receipt of a copy of this judgment. The parties shall appear before the Tribunal on March 31, 2011. Send the records to the Tribunal forthwith. A.K.BASHEER, JUDGE P.Q.BARKATH ALI, JUDGE mn.