IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 MACA.No. 851 of 2004 ------------------------------------ OPMV.421/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/2ND RESPONDENT: NATIONAL INSURANCE COMPANY LIMITED, THODUPUZHA NOW REP. BY ITS ASST.MANAGER, REGIONAL OFFICE, AJAY VIHAR, KOCHI-16. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENTS/PETITIONERS AND 1ST RESPONDENT: 1. JESSY, W/O. JOHNY, MADATHIKANDATHIL HOUSE, PERUMPILICHIRA KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA. 2. JINCY @ ANNA (MINOR), D/O. JOHNY, DO. DO. 3. JILS @ VARGHESE (MINOR), S/O DO. DO. 4. VARKEY, S/O. AYPE, -DO- -DO-. 5. ANNAKUTTY, W/O. VARKEY, -DO- -DO-. 6. ABDULKHALAM P.K., PALIYATHU HOUSE, KARIKODE, THODUPUZHA. (MINOR RESPONDENTS 2 AND 3 ARE REP. BY THEIR GUARDIAN AND MOTHER 1ST RESPONDENT). ADV. SRI.V.K.MOHAMMED YOUSUF FOR R6 SRI.T.J.MICHAEL FOR R1 TO 5 SRI.P.NOOR SEMIR FOR R1 TO 5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- M.A.C.A.No.851 of 2004 --------------------------------- JUDGMENT Koshy, J. A thirty one year old youngster sustained fatal injuries in a motor accident on 10.2.1999, while he was driving a scooter. The scooter was owned by the sixth respondent in the appeal and the deceased was employed as a driver-cum-salesman. As authorised by the owner he was driving the scooter. His dependents, i.e., his wife, two minor children aged 1 and 5 and aged parents claimed compensation under Section 163(A) of the Motor Vehicles Act. According to the claimants, while the deceased was driving a scooter, abruptly a cyclist crossed the road and the scooter hit against it and thereby he sustained injuries due to unavoidable accident and he succumbed to the injuries on 22.2.1999. The Tribunal has awarded a total compensation of Rs.2,01,500/- with 9% interest per annum from MACA 851/04 2 18.5.1999 till realisation against a claim of Rupees five lakhs. 2. Two contentions are raised by the Insurance Company. The first contention is that the accident occurred solely due to the negligence of the deceased himself. Hence, it is not possible to pay compensation under Section 163(A) of the Act. Secondly, it is contended that they have no liability to cover the driver, as the deceased was not employed as a driver. It has been held by a Full Bench of this Court in National Insurance Co. Ltd. v. Malathy C.Sailan (2003 (3) KLT 460) that the Insurance Company is liable to pay compensation to the legal heirs of the deceased without looking into the negligence as it is a statutory liability, not necessarily based on tortious claim. Strict liability principle has to be applied. In this connection, we also refer to the decision of the Apex Court in Bangalore Metropolitan Transport Corporation v. Sarojamma ((2008) 5 SCC 142). From MACA 851/04 3 the evidence adduced, it cannot be said that the accident occurred due to his fault. Even otherwise the deceased was employed as a driver cum-salesman by the first respondent (sixth respondent in the appeal). He was driving the scooter as authorised by the owner as his employee. The contention of the Insurance Company that “the deceased was not covered by it as he was not an employee of the insured” cannot be accepted. Here, he was an employee of the insured. He was employed as driver- cum-salesman. Therefore, at the time of fixing the liability under the Workmen's Compensation Act in the case of death contributory negligence cannot be looked into. Under the Workmen's Compensation Act, if compensation is calculated taking Rs.1,500/- as the monthly income, the compensation payable will be 1500 x 50/100 x 205.95 = 1,54,462.50, rounded to Rs.1,54,462/-. As per Section 4(4) of the Workmen's Compensation Act, Rs.2,500/- is payable for funeral expenses. So, the total amount payable under the MACA 851/04 4 Workmen's Compensation Act will be Rs.1,56,962/-. The above amount has to be deposited by the appellant with 12% interest per annum from the date of accident or at least from the date of death, considering the mandate of Section 4A of the Workmen's Compensation Act, i.e. from 22.2.1999. Considering 12% interest to be paid from the date of accident, there won't be much difference in the amount awarded by the Tribunal. In the circumstances, we are not interfering with the award. The appeal is dismissed. (J.B.Koshy, Judge) 22nd September, 2008 (K.P.Balachandran, Judge) tkv