IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 MACA.No. 973 of 2008() --------------------------------- OPMV.366/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT(S): 2ND RESPONDENT IN THE OP ------------------------- THE ORIENTAL INSURANCE CO. LTD. MUVATTUPUZHA, REPRESENTED BY THE AUTHORIZED SIGNATORY,THE ORIENTAL INSURANCE CO.LTD REGIONAL OFFICE, METRO PALACE, ERNAKULAM NORTH KOCHI-18 BY ADV. MR.A.R.GEORGE RESPONDENT(S): ------------------------- 1. HASSAN, S/O. SIGARAN LABBU, MUNDACKAL HOUSE, KEERIKODU KARA, KARIKODU VILLAGE THODUPUZHA TALUK. 2. PRASANTH VB, OLAYATHIL HOUSE, ARIKUZHA P.O., THODUPUZHA TALUK. R1 BY ADV.MR.T.V.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.1185/2008 IN MACA. NO.973/2008 DISMISSED 24/11/2009 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 973 OF 2008 = = = = = = = = = = = = = = = Dated this the 24th day of November, 2009. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)366/04. The claimant while riding a motorcycle sustained injuries when it collided with an auto rickshaw. The claimant had preferred to file a petition u/s 163A of the Motor Vehicles Act against the insurance company and the registered owner of the Motor cycle. The Tribunal on a consideration of the materials awarded him a compensation of Rs.53,000/- and it is against that decision the insurance company has come up in appeal. 2. Two questions that arise for consideration relates to the liability of the insurance company to pay the amount. If he is a rider who is not an employee under the owner then it has to be stated that with the permission of the owner he had taken the motorcycle and in the course of the same he had met with an accident. When it is so he will be stepping M.A.C.A. 429 OF 2009 -:2:- into the shoes of the owner and thereby he will be the owner for all practical purposes. 3. Then the next question is whether the policy issued in this case covers the risk of such a person. As per the policy conditions an additional premium of Rs.50/- is paid for the coverage of owner, driver. It is equally a personal accident coverage which comes under the terms and conditions of the policy. The difference between the personal accident coverage and the ordinary coverage is that in order to maintain a claim under the payment of premium for personal accident coverage the accident should have been resulted in the death of the person or should have resulted in loss of limbs or sight of two eyes or one limb or sight of one eye or permanent total disablement or injuries other than named above. Or in other words in an injury case there must be either loss of limbs or a permanent total disablement. Admittedly there is no case for the claimant herein that he has lost any of his limbs. M.A.C.A. 429 OF 2009 -:3:- 4. Then comes the question of a permanent total disablement. For the permanent total disablement since S.163A refers to Workmen's Compensation Act, as per the explanation, one can take the aid of the definition of permanent disablement used in the Workmen's Compensation Act. It has to be stated that the permanent total disablement shall be deemed to result from every injury specified under Part I of schedule I or from any combination of injuries specified in part II of the schedule where the aggregate percentage of loss of earning capacity as specified in the said Part II against those injuries imposing to 100% or more. So it has to be stated that this is a case where the injury as noted in schedules I and II does not apply and it has to come under the category of loss of earning capacity and in order to entitle a person to claim compensation for that permanent disablement the loss of earning capacity should be 100% or more but so far as our case is concerned it is only 15% and therefore by invoking the aid of Workmen's Compensation Act the injuries sustained does not M.A.C.A. 429 OF 2009 -:4:- amount to permanent total disablement. Total permanent disablement is a sine qua non under the conditions of the policy to entitle the claimant to get compensation under the personal accident coverage. In the absence of these things there cannot be any coverage and therefore the insurance company will not be liable to pay the amount. If the claimant is interested in executing against the owner of the vehicle it is left to his discretion and therefore the appeal is disposed of exonerating the insurance company from the liability. The amount which is in deposit shall be disbursed to the insurance company on proper application. M.N. KRISHNAN, JUDGE. ul/-