IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 5TH SEPTEMBER 2008 / 14TH BHADRA 1930 MACA.No. 137 of 2005() ---------------------- OPMV.98/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER: ----------------------------------------- JOSEPH, S/O. PAULOSE, AGED 45 YEARS, RESIDING AT MUNDEKUDIYIL HOUSE, ANICAD, MUVATTUPUZHA VILLAGE. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SMT.A.S.BEENU SRI.M.V.BIPIN RESPONDENT(S): RESPONDENTS: --------------------------- 1. V.H.SHAJI, S/O. HAMEEDU VARIPURATHUKUDY @ VARIPURATHU HOUSE, MUVATTUPUZHA. 2. THE ORIENTAL INSURANCE CO. LTD., MUVATTUPUZHA. 3. UNNIKRISHNAN, SREEKRISHNA BHAVAN, ARAKULAM P.O., MOOLAMATTOM. 4. P.K.MOHANAN, S/O. KRISHNAPILLAI, VADAKKEPARAMBIL, ARAKULAM P.O., MOOLAMATTOM. 5. NATIONAL INSURANCE CO. LTD., PULIMOOTTIL SHOPPING ARCADE, THODUPUZHA. ADV. SRI.RAJAN P.KALIYATH FOR R5 SRI.VPK.PANICKER FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 05/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & THOMAS P.JOSEPH, JJ. ------------------------------------------------------------ M.A.C.A.NO: 137 OF 2005 ----------------------------------------------------------- Dated this the 5th September,2008. JUDGMENT Koshy, J. Appellant in this case sustained injury while he was travelling in a heavy goods vehicle as a workman (loading and unloading workman). He claimed a total compensation of Rs.2,50,000/-. Tribunal awarded only Rs.31,300/- and directed the second respondent-insurance company to deposit the compensation. The vehicle was covered by a valid policy of insurance issued by the second respondent. Totally six persons/workers travelled in the vehicle were injured excluding the driver. Tribunal found that as per the insurance policy only three employees were covered. Policy portion was also extracted in the impugned award at paragraph 31. Three workmen including the driver were covered for the legal liability (risk under the Workmen's Compensation Act). Additional premium is also paid for such legal liability. Therefore the Tribunal directed that claim filed by three claimants who were employers/passengers should be discharged by the insurance company and in respect of others should be discharged by the first respondent- driver-cum-owner of the lorry as the accident occurred due to his negligent driving. As far as the petitioner is concerned Tribunal treated him as covered by the insurance policy and directed the insurance company to pay the compensation awarded. He is an employee of the MACA 137/05 2 insured. As per the provisions of the policy he is entitled to compensation as provided under the Workmen's Compensation Act and he cannot be paid compensation in general terms. It is contended that multiplier taken was low. Compensation granted for pain and suffering was low. No amount was awarded for permanent disability. He was a headload worker. According to the claimant he is entitled to Rs.1,00,000/- as compensation for permanent disability. As he lost 100% loss of earning capacity Ext.A12 wound certificate and X-ray shows that he had fracture of 11th and 12th thorasic spine and displaced fracture of left medial malleolus. Disability was certified by an Orthopaedic Surgeon by Ext.A14 as 20%. As per Section 4(1)(c) (ii) of the Workmen's Compensation Act, 1923, compensation has to be calculated for non- scheduled injury on the basis of the medical certificate issued. Here there is nothing to disbelieve Ext.A14 certificate and therefore, compensation has to be ordered for 20% loss of earning capacity. It is submitted by the claimant that in view of the serious injuries, he is unable to do headload work and there is 100% loss of earning capacity. But that cannot be accepted. He was aged 40. Relevant factor as per III schedule is 184.17. Being a headload worker he is getting Rs.300/- per day. The maximum monthly income can be taken at the time of award as per the provisions of the Act existing on the date of the accident was only Rs.2,000/-. Therefore compensation payable under the Workmen's Compensation Act is 2000 x 60/100 x 20/100 x184.17 = Rs.44,200.80, MACA 137/05 3 rounded to Rs. 44,200/-. Under Workmen's Compensation Act he is not entitled to reimbursement of other expenses. Total amount awarded by the Tribunal is Rs.31,300/- with interest at 9% per annum from the date of application. Therefore additional compensation amount will be Rs.10,900/-. Under Section 4A of the Workmen's Compensation Act interest is payable at the rate of 12% per annum from the date of accident. Hence the second respondent-insurance company should deposit Rs.44,200/- with 12% interest from the date of accident till its deposit after deducting the compensation already paid/deposited. On deposit the appellant is allowed the withdraw the amount. Appeal is disposed of accordingly. J.B.KOSHY Judge THOMAS P. JOSEPH Judge jj K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: