IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 MACA.No. 1910 of 2006() ----------------------- OPMV.764/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA .................... APPELLANT/2ND RESPONDENT IN OP(MV): ---------------------------------------------------------------- BABU, S/O. KURIAKOSE, AGED 47 YEARS, PALLATHUKUDIYIL (H), ADIMALI KARA, MANNAMKANDOM VILLAGE. BY ADV. SRI.THOMAS M.JACOB RESPONDENTS: CLAIMANT/1ST RESPONDENT IN OP(MV): ---------------------------------------------------------------------------------------- 1. T.A. BHASKARAN, AGED NOT KNOWN, S/O. KUNJANANDAN, THEKKALAKKATTIL (H), AMBALAKUNNU BHAGOM, MUKKUDAM KARA, KONNATHADY VILLAGE. 2. RAJAN, AGED NOT KNOWN, S/O. ITTY, AMBATTUPADICKAL (H), 200 ACRE, MANNAMKANDOM VILLAGE. ADV. SRI.A.J.JOSE(AEDAIODI) FOR R2 SRI.C.M.TOMY SRI.MATHEW SKARIA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.2114/2006 IN M.A.C.A.NO.1910/2006 DISMISSED 4/08/2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.N.KRISHNAN, J ===================== MACA No.1910 OF 2006 ===================== Dated this the 4th day of August 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Thodupuzha in O.P.(MV)No.764/2003. The claimant, an agriculturist by profession, sustained serious injuries in a road accident, as a result of which there is amputation of the big toe of the right foot. He had a crush injury with loss of skin and he was treated in the hospital as an inpatient and there was also doubt about the blood circulation. The Tribunal awarded him a total compensation of Rs.94,340/- and directed the 2nd respondent to pay the amount. It is against that decision the 2nd respondent has come up in appeal. 2. He has challenged the question on 3 grounds:(1) that the owner of the vehicle is M/s.Tata Finance Ltd and they were under an obligation to pay the premium and they must be liable to pay the amount.(2) The Tribunal, after finding that the driver was negligent and it cast upon the liability only on the owner which is incorrect in law and 3rdly regarding the quantum of compensation. MACA 1910/2006 -:2:- 3. So far as the first point is concerned, Section 2(30) of the Motor Vehicles Act deals with the definition of 'owner' means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase, agreement or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement. So by this definition when a person is in possession of the vehicle though there is a hire purchase agreement, the person in possession is considered to be the owner for the purpose of the Motor Vehicles Act. Therefore the junction of the hire purchaser is not necessary in such proceedings, but, if there there is a contract between the hire purchaser and the owner in possession it is for him to work it out under the said contract in appropriate forum about which I do not express any opinion. Therefore, the non-junction of the hire purchaser is not fatal to this case. 4. Turning to the next point, i.e quantum. The Tribunal has fixed the income at Rs.2,500/- and taken the disability at 20% and calculated the compensation. The Tribunal has fixed the disability at 20%, but when a reference is made to the Workmen's Compensation Act, when there is an amputation through metatarso-phalangeal joint the disability is only 14%. It is also submitted that there is nothing to show that there has been complete MACA 1910/2006 -:3:- amputation. Unless there is a specific evidence to show that there is loss of toe, it cannot be granted. Further, even where there is loss of all toes of one foot through metatarso-phalangeal joint, the disability is taken as 20% under the Workmen's Compensation Act Schedule I part II 24. There is no amputation of all the toes. We may take into consideration Schedule I Part II B 39, which would amount to 14%. The income taken is also Rs.2,500/-. One cannot hold that an agriculturist will loose the entire income when one of his toe is amputated. I fix his income at Rs.2,250/-. When it is fixed at Rs.2,250/-, the annual income would come to Rs.27,000/- and when 14% disability is calculated, the annual loss would come to Rs.3,780/- and when the appropriate multiplier of 8 is used, it would come to Rs.30,240/-. The Tribunal has awarded Rs.48,000/-. Therefore there is an excess compensation of Rs.17,760/- under that head. Similarly, the compensation granted under the head pain and suffering is also on the higher side. I reduce it to Rs.3,000/-. Therefore the total deduction will be Rs.20.760/-. When it is deducted, the claimant will be entitled to Rs.73,580/-. 5.Lastly, the learned counsel would contend regarding the driver's liability. It is fundamental that the owner is only vicariously liable for the act of his servant. So the liability is only joint and several. Therefore the Tribunal went wrong in exonerating the first respondent from the liability. I MACA 1910/2006 -:4:- find respondents 1 and 2 in the claim petition are jointly and severally liable. In the result, the MACA is partly allowed and the claimant is awarded a compensation of Rs,73,580/- with 6% interest on the said sum from the date of petition till realisation from respondents 1 and 2 jointly and severally. If there is an independent right on account of any breach of contract between the hire purchaser and the appellant, the appellant can pursue the remedies, if available, under civil law. Respondents are directed to deposit the amount within 3 months from the date of receipt of a copy of this judgment. If any amount is already deposited, that amount be given credit to and the Tribunal is at liberty to disburse the amount to the claimant. M.N.KRISHNAN, JUDGE Cdp/-