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. 1777 of 2006() ---------------------------------- OPMV.1097/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA .................... APPELLANT/PETITIONER ---------------------------------- MATHEW, S/O.VARKEY, AGED 41 YEARS, AMBATTU HOUSE, KULAPPURAM KARA, KADAVOOR VILLAGE. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENTS/RESPONDNETS ---------------------------------------------- 1. SRI.MATHAIKUNJU, S/O.KORAH, MALIKUDY HOUSE, IRINGOLE, RAYAMANGALAM, PERUMBAVOOR. 2. SRI.PAUL, S/O.JOSEPH, PARAMKUNNEL, POTHANICADU, POTHANICADU VILLAGE. 3. UNITED INDIA INSURANCE CO.LTD., BRANCH OFFICE, MUNCIPAL SHOPPING COMPLEX, MUVATTUPUZHA. ADV. SRI.P.MURALEEDHARAN FOR R3 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.1777 OF 2006 ===================== Dated this the 10th day of December 2008 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Muvattupuzha in O.P.(MV)No.1097 of 2002. The claimant therein is a loading and unloading worker. While he was loading the timber in a parked lorry, a piece of timber fell down from the vehicle and injured him and he has claimed compensation under Section 166 of the Motor Vehicles Act. The insurance company contended that the accident occurred while the lorry was parked on the side of the road. The Tribunal found that negligence is not proved and therefore dismissed the case. 2. Heard the learned counsel on both sides. Learned counsel for the appellant strongly contends before me that the accident had arisen out of the use of a motor vehicle and therefore in the light of the decision reported in New India Assurance Co.Ltd. v. Sheeja(2006(4) KLT 63) he is entitled to compensation. I had carefully scrutinized the said decision. It was a case where the driver died while the vehicle was in workshop due to explosion of gas cylinder. The Division Bench took the view that the MACA 1777/2006 -:2:- accident had arisen out of the use of motor vehicle and extended the benefit under the Workmen's Compensation Act which was larger than the relief under Section 140 of the Motor Vehicles Act. It is true that when a timber falls down while it was being loaded from a parked lorry and the driver was not even sitting in the lorry one cannot attribute negligence on him for the accident. But, at the same time, the incident had taken place purely on account of the use of a motor vehicle for the purpose of loading the timber. So, there cannot be any dispute that the accident had taken place and it had arisen out of the use of a motor vehicle. But, in a case under Section 166 of the Motor Vehicles Act negligence has to be proved. Here, one cannot attribute negligence on the driver and he had no part to play while loading the timber by the workman. Admittedly the claimant is not a workman of the insured and therefore the benefit under the Workmen's Compensation Act cannot be extended to him. Then the only question is regarding his entitlement for compensation under Section 140 of the Motor Vehicles Act which deals with no fault liability. In a case when considered under Section 140, the question of negligence falls out of the purview of consideration but the entitlement will be only if the claimant satisfies that his injuries will come under one of the clauses mentioned under Section 142 of the Motor Vehicles Act. MACA 1777/2006 -:3:- 3. A disability certificate of 9% had been produced before the court below and I had the opportunity to peruse the same. It is seen from the said certificate that he had a loss of sensation on the medial aspect of the left forearm and there was limitation of movement of shoulder and the permanent disability was fixed at 9%. Certainly on account of the injury, there has been disablement of a joint namely the shoulder joint and also a loss of sensation on the medial aspect of the left forearm. So it is a disability that can be brought under Section 142 (b) of the said Act. Therefore I am inclined to award compensation under no fault liability in this case. Therefore the award under challenge is set aside and the claimant is awarded a compensation of Rs.25,000/- with 7% interest on the said sum from the date of petition till realisation and the insurance company is directed to deposit the amount within 60 days from the date of receipt of a copy of this judgment. MACA is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-