IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 MACA.No. 655 of 2008() -------------------------------- OPMV.1128/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR .................... APPELLANT/3RD RESPONDENT: --------------------------------------------- THE ORIENTAL INSURANCE CO. LTD. MANJERI, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE ERNAKULAM NORTH, KOCHI-18 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT/CLAIMANT-RESPONDENTS/RESPONDENTS 1 & 2: -------------------------------------------------------------------------------------------- 1. THAZHATHE PALLIYALIL HASSAN, S/O.MARAKKAR,THAZHEKODE HOUSE, P.O. ANDIYOORKUNNU,KATTAPPURAM,MUZHAGALLUR. 2. P.MOOSA, S/O.MAMMADEESA, NAVARIKUTH HOUSE,P.O.ANDIYEEKKUNNU,KOTTAPPURAM, VIA. PULIKKAL, MALAPPURAM. 3. RIYAS-PAIKKARATHODI, S/O.SAIDALAVI NAVARIKUTH HOUSE, P.O.ANDIYOORKUNNU, KOTTAPPURAM. ADV. SRI.P.CHANDRASEKHAR FOR R1 & R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== MACA No.655 OF 2008 ===================== Dated this the 10th day of December 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Tirur in O.P.(MV)No.1128 of 2005. It is the case of the claimant that while he was travelling in a lorry which belonged to the insured due to the negligent driving of the lorry driver, the vehicle capsized resulting in injuries to him. The insurance company contended that since he is claiming to be an employee under the insured, he will be only entitled to compensation under the Workmen's Compensation Act. The Tribunal considered this question in paragraph 14 of the award and also arrived at a decision that the name of the employer of the claimant is the insured himself and therefore held that he was a loading and unloading worker of the 2nd respondent, who is the insured. Then suddenly the Tribunal took a turn and held that since non-fare passengers are also covered under the policy the insurance company is bound to pay compensation under that category. I am afraid that a person cannot have two capacities while deciding a case of this nature. Either he must stick to the plea that he is the employee of the insured or that he is a non-fare passenger covered under Section 147 of the MACA 655/2008 -:2:- Motor Vehicles Act. Here, the specific contention is to the effect that he was an employee of the insured and therefore further discussion on non-fare passenger may not arise at all. So one of the real platform for the person is to move under the Workmen's Compensation Act. But in cases of road accident as provided under Section 167 of the Motor Vehicles Act he can choose the form but the limit of the insurance company has to be restricted only to the liability under the Workmen's Compensation Act. Therefore, the compensation has to be recalculated. It is true that the permanent disability of the person is fixed by the medical board only at 7% and therefore the learned counsel for the insurance company would contend that compensation has to be calculated at 7% only. Under the provisions of the Workmen's Compensation Act when compensation is calculated towards the loss of earning capacity it is the percentage of disability that has to be taken into account to award compensation. I am also equally conscious of the fact that it is for the medical authorities to fix the loss of earning capacity as well. It is also true that a Full Bench of this Court in Vanajakshan v. Joseph(2003(2) KLT 462) has held that loss of earning capacity has to be calculated not on the basis of the work which he was doing but on the basis of the whole work which he was capable of doing. So far as this case is concerned, admittedly the claimant is a head load MACA 655/2008 -:3:- worker. In order to be a head load worker or any manual labourer one requires a very strong hand. Here, the permanent disability certificate would clearly show that there is reduction in the movement of left wrist. Therefore I am inclined to fix the loss of earning capacity at 14%. The Full Bench of this Court has held that when there is evidence before the authority it can fix the disability in tune with the materials available. Here, there is reduction of the wrist of a head load worker and therefore I feel that it is never on the higher side to fix the loss of earning capacity at 14%. When it is calculated on that basis, taking the income at Rs.3,000/- as done by the Tribunal, it will be 3000 x 60/100 x 225.22 x 14/100 which would come to Rs.56,756/-. Therefore the award passed by the Tribunal has to be modified and the claimant is awarded a compensation of Rs.56,756/- with 9% interest on the said sum from the date of petition till realisation with the cost ordered. The 3rd respondent shall deposit the amount within 60 days from the date of receipt of a copy of this judgment. If any amount is already deposited that can be given credit to and the balance need be deposited. MACA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/- MACA 655/2008 -:4:-