IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 MACA.No. 1511 of 2007(A) ------------------------------------- [O.P(MV).NO.192/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI] .................... APPELLANT/PETITIONER: ------------------------------------- ABOOBACKER,S/O. MOHAMMED,. 26 YEARS, APPAMKANDATHIL HOUSE,MUKKATTA P.O, MALAPPURAM DISTRICT. BY ADV. SRI.K.P.MUJEEB. RESPONDENTS: ------------------------ 1. RAJU,S/O. PYLI, PAMBAKOTIL HOUSE,MALACHI DESOM, EDAKKARA VILLAGE,(DRIVER). 2. KABEER HUSSAIN,S/O.MOHAMMED, SALIM NIVAS,CHAKKIPARAMBU HOUSE, CHANDAKUNNU, NILAMBUR (OWNER) 3. THE UNITED INDIA INSURANCE CO. LTD., BR.OFFICE, NILAMBUR, (INSURER). R2 BY ADV. SRI.BABU S. NAIR, R3 BY SRI.A.R.GEORGE. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. A.K.BASHEER & P.Q. BARKATH ALI, JJ. =-=-=-=-=-=-=-=-=-=-=-=-=-=-= M.A.C.A. No. 1511 of 2007 E =-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 10th day of March, 2010 JUDGMENT Barkath Ali, J: In this appeal under section 173 of the Motor Vehicles Act claimant in O.P.(MV) No.192 of 2002 of the Motor Accidents Claims Tribunal, Manjeri challenges the judgment and award of the Tribunal dated December 21, 2006 awarding a compensation of Rs.52,200/- for the loss caused to him, on account of the injury sustained by him in a motor accident. 2. The facts leading to this appeal in brief are these:- The claimant was aged 24 at the time of the accident and used to earn Rs.4,500/- per month as a Cleaner of the lorry. On February 23, 2000 at about 9.45 p.m. the claimant was travelling as a Cleaner in a lorry bearing registration No.K- 8 J 25, which was proceeding from Kottayam to Nilambur. When it reached at Muvattupuzha-Vellorkunnam road, the first respondent driver lost control over the lorry and it MACA 1511/07 2 rammed into an automobile shop on the side of the road. The claimant sustained very serious head injury. According to him, the incident occurred due to the rash and negligent driving of the lorry by the first respondent. The first respondent as the driver, second respondent as the owner and third respondent as the insurer of the offending lorry are jointly and severely liable to pay the compensation to the claimant. 3. Respondents 1 and 2 driver and owner respectively of the lorry did not file any written statement before the Tribunal. The third respondent Insurance Company filed a written statement, admitting the policy. The third respondent further contended that as the claimant is an employer of the first respondent, the liability of the Insurance Company is limited to what is provided under the Workmen’s Compensation Act. The Tribunal, on an appreciation of the evidence, awarded a compensation of Rs.52,200/- with interest at the rate of 6% p.a. from the date of petition till realization. The Tribunal found that as MACA 1511/07 3 per section 147 of the Motor Vehicles Act, the third respondent Insurance Company need cover only the liability under the Workmen’s Compensation Act and therefore the third respondent was directed to pay Rs.13,108/- and the second respondent, the owner of the vehicle, was directed to deposit the balance amount. The claimant has now come up in appeal challenging the said finding of the Tribunal and also claiming enhancement of the compensation awarded. 4. Heard the learned counsel for the appellant/claimant and the learned counsel for the third respondent/Insurance Company. 5. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the first respondent is not seriously challenged in this appeal. Therefore, the questions which arise for consideration are whether the Tribunal is justified in finding that the liability of the Insurance Company is limited to what is provided under the Workmen’s Compensation Act and whether the claimant is entitled to MACA 1511/07 4 any enhanced compensation? 6. We shall first consider whether the claimant is entitled to any enhanced compensation. The Tribunal awarded compensation as follows:- Transport to hospital : Rs.500/- Extra nourishment and bystander’s expenses : Rs.2,200/- Damage to clothing : Rs.250/- For reviews (27 times) : Rs.2,700/- Loss of income for four : Rs.8,000/- Months @ Rs,2,000/- Pain and suffering : Rs.6,000/- Medical bills : Rs.10,935/- For disability : Rs.21.600/- (24000X5X18) 100 ----------------------- Total : Rs.52,185/- Rounded to : Rs.52,200/- ========= 7. The learned counsel for the appellant/claimant mainly sought enhancement of the compensation for pain and suffering. He argued that the Tribunal took the monthly income of the claimant as Rs.2,000/-, which is very low. We find force in the above contention. The claimant was aged 24 at the time of the accident. Even as a “coolie” he would have earned Rs.100/- per day as wages. Therefore, MACA 1511/07 5 we feel that monthly income of the claimant can be taken as Rs.3,000/-. The percentage of disability was taken as 5%, as per Ext.X1 disability certificate issued by the Medical Board. This is not seriously challenged. The Tribunal has adopted the multiplier of 18, taking into consideration the fact that the claimant was aged only 24 at the time of the accident, which appears to be reasonable. Thus, for the disability caused the claimant is entitled to a compensation of Rs.32,400/-. Therefore, on this count, the claimant is entitled to an additional compensation of Rs.10,800/-. 8. The Tribunal awarded compensation of Rs.8,000/- towards loss of earnings for four months @ Rs.2,000/-. We have fixed monthly income of the claimant as Rs.3,000/. Therefore, towards loss of earnings for four months, the claimant is entitled to additional compensation of Rs.4,000/-. 9. For pain and suffering the Tribunal awarded compensation of Rs.6,000/-, which appears to be very low. Considering the nature of injuries sustained by the MACA 1511/07 6 claimant, we are of the view that a compensation of Rs.15,000/- would be reasonable on this head. Thus, on this count the claimant is entitled to an additional compensation of Rs.9,000/-. Thus, the claimant is entitled to a total additional compensation of Rs.23,800/- 10. There is another aspect in this case. The Tribunal found that section 147 of the Motor Vehicles Act provides that if the injured or deceased is an employee of the owner, the liability of the Insurance Company is limited to the liability arising out of Workmen's Compensation Act, 1923 and that therefore, the Insurance Company is liable to pay only Rs.13,108/- and the balance amount was directed to be paid by the owner, the second respondent. We are of the view that the above finding of the Tribunal can be sustained for more reasons than one. The Insurance Company has no case that the policy in respect of the offending vehicle is only an act only policy. That being so, it has to be taken as a comprehensive policy under which the liability of the Insurance Company is unlimited. The above position has MACA 1511/07 7 been made clear by the Apex Court in Bhimavva V. Shankar Alias Adya (2004 (1) KLT S.N.21). That being so, the Tribunal is not justified in limiting the liability of the Insurance Company to Rs.13,108/-. The Insurance Company is liable to pay the entire compensation awarded by the Tribunal. 11. Therefore, the claimant is entitled to additional compensation of Rs.23,800/- with 9% interest per annum from the date of petition till realization and proportionate costs. The third respondent, Insurance Company, shall deposit the amount within two months from the date of receipt of a copy of this judgment. The award of the Tribunal is modified to the above extent. In the result, the appeal is disposed of as found above. A.K.BASHEER, JUDGE. P.Q. BARKATH ALI, JUDGE. mn MACA 1511/07 8