IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 MACA.No.134 of 2003 -------------------------- OPMV.2250/1995 of ADDL.MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM .................... APPELLANT/PETITIONER: ------------------------------ MURALI, S/O. ACHUTHAN, PARAPPURATHU VEEDU, KALAKODE POST, POOTHAKKULAM, PARAVOOR, KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR RESPONDENTS: RESPONDENTS: ------------------------------------- 1. C.ARAVINDAKSHAN ASAN, S/O. CHELLAPPAN PILLAI, THOTTATHIL VEEDU, KOTTAPPURAM, PARAVOOR, KOLLAM. 2. K.SURENDRAN, CHARUVILA VEEDU, KURUMANDAL, PARAVOOR, KOLLAM. 3. NEW INDIA ASSURANCE COMPANY LIMITED, BRANCH OFFICE, HOSPITAL ROAD, KOLLAM. ADV. SRI.K.SUBASH CHANDRA BOSE FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 21/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ M. A. C. A. No.134 of 2003 ------------------------------------------------ Dated this the 21st day of October, 2008 JUDGMENT Koshy, J Appellant filed an application for compensation before Motor Accidents Claims Tribunal, Kollam contending that he was a Panthal worker and while he was travelling in a mini lorry bearing registration No.KEV-7498 which was transporting the panthal construction materials along with other loading workers on 21/04/95, the second respondent/driver of the mini lorry in which he was travelling rashly turned towards right and due to the sudden turning of the vehicle, the material loaded for the construction of panthal fell on the appellant/petitioner and he sustained injuries to tibia and patella of his left leg and also multiple abrasion on his left leg. He was M. A. C. A. No.134 of 2003 -2- taken to District Hospital, Kollam and treated there as an inpatient for 21 days. According to him, his monthly income was Rs.3,000/-. Disability certificate was not produced. A total compensation of Rs.1,50,000/- was claimed. The Tribunal found that the accident occurred not due to the negligence of the second respondent/Driver but because of the fact that the panthal materials were not properly tied. It was also found that he was travelling in a mini lorry along with other loading and unloading workers. That is violation of policy condition. He is not allowed to travel in a goods vehicle along with other loading and unloading workers. He was not travelling in the cabin even if he was travelling with the materials as agent of the owner. There was violation of the policy conditions and hence, even if compensation is payable liability is on the owner and driver M. A. C. A. No.134 of 2003 -3- of the vehicle. Hence, the Insurance Company was exonerated. We agree with the views of the Tribunal that the liability cannot be fixed on the Insurance Company for a passenger in a goods vehicle travelling against the permit conditions and policy conditions. 2. Several headload workers were travelling in the mini lorry along with the goods for Panthal construction. Then the question is whether the second respondent was negligent. Owner and driver though accepted notice remained ex parte before the Tribunal. No defence evidence was adduced. Allegations were not contradicted. Apart from the above, even if the Tribunal found that the accident occurred not due to the negligence of the driver in driving the vehicle, but only because the construction materials were not properly tied, we are of the opinion that the second respondent cannot be exonerated. While M. A. C. A. No.134 of 2003 -4- driving the mini lorry it is his duty to ensure that the materials loaded in the lorry are properly tied and stored so as to prevent accident to the public as well as to the passengers, if any. He also shall not allow passengers to be carried in the platform of the lorry. In the Wound Certificate issued on the very date of the accident itself, it is stated that the accident occurred while the Panthal materials (Adaykkamaram) fell on the leg of the appellant while travelling in a tempo. The second respondent ought not have allowed people to travel in the tempo outside the cabin portion. Therefore, the second respondent/Driver is negligent. Consequently, vicariously the first respondent is also liable. Therefore, the first and second respondents are jointly and severally liable to pay compensation. M. A. C. A. No.134 of 2003 -5- 3. Next question is what is the quantum of compensation. Since there was fracture of two legs, we are of the view that Rs.7,500/- can be awarded for pain and suffering. No disability certificate was produced. There is no evidence to show that there is permanent disability. However, for loss of amenities and consequence of disability, we award Rs.5,000/-. There is no evidence regarding the appellant's monthly income. Even if he gets Rs.100/- per day, for 25 days' work he would get Rs.2,500/- per month. Because of the accident and fracture of two legs, he will not be able to work for four months. Therefore, he will be entitled to four months' wages as actual loss of earnings i.e. Rs.10,000/- (Rs.2,500/- x 4). For hospital bills, bystander's expenses and all other claims, we award another Rs.5,000/-. Thus, the total amount payable is Rs.27,500/-. The above Rs.27,500/- M. A. C. A. No.134 of 2003 -6- should be deposited by the first respondent/ owner and second respondent/driver with 7.5% interest from the date of application till its deposit. On deposit of the above amount, the appellant is allowed to withdraw the same after deducting the court fee payable. 4. This appeal is thus, allowed in part. Award is modified accordingly. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-