IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 MACA.No. 1389 of 2008() ---------------------------------- OPMV.1124/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA .................... APPELLANT/ PETITIONER ----------------------------------- YASER KHAN, S/O.ABDUL KARIM, PUTHUPARAMBIL HOUSE, MATHAKKAL BHAGAM, ERATTUPETTA, KOTTAYAM DIST. REPRESENTED BY THE POWER OF ATTORNEY HOLDER M.E.THAHA, S/O.EASSA KHAN, MATHAKKAL HOUSE, EALAKKAYAM BHAGAM, ERATTUPETTA P.O, KOTTAYAM DISTRICT. BY ADV. SRI.V.K.PEERMOHAMED KHAN RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. YASEEN, S/O.ABDUL KARIM, MOTHEENPARAMBIL HOUSE, MATHAKKAL BHAGAM, ERATTUPETTA, KOTTAYAM DIST. 2. SABEER, MOTHEENPARAMBIL, MATHAKKAL BHAGAM, ERATTUPETTA, KOTTAYAM DIST. 3. THE NEW INDIA INSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER, ST.THOMAS BUILDING, A.M.ROAD, PERUMBAVOOR, ERNAKULAM DIST. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 1389 of 2008 J U D G M E N T Since the delay condonation application is dismissed for default, the appeal also stands dismissed for default. 11/12/2008. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE Rs/ M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 1389 OF 2008 --------------------------------- Dated this the 8th day of January, 2009 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Pala in O.P.(MV) No.1124/05. The claimant, a helper in a lorry, sustained injuries in a road accident. The tribunal fixed the compensation at Rs. 28,900/- and directed the 2nd respondent to pay the amount. It is against that decision the appeal is preferred. 2. The learned counsel for the appellant strongly contends before me that the tribunal had erred in exonerating the liability of the Insurance Company. A perusal of the award of the tribunal would show that the accident took place when the claimant was an employee under the owner. He was placing a breaker on the tyre of the lorry at which time the driver moved the vehicle which resulted in sustainment of a fracture on the calcaneum to the claimant. The tribunal considered the question and found that there was an employer employee relationship between the owner and the claimant and further found that the accident had taken place in the course of the employment. The tribunal held that it is under the M.A.C.A. 1389/2008 -2- Workmen's Compensation Act the Insurance Company was bound to indemnify the owner. In order to attracting provisions of the Workmen's Compensation Act, the tribunal analysed the materials and found that only Ext. A7 certificate is produced before the tribunal. Ext. A7 is a certificate issued by Carmel Hospital which does not disclose any disablement to the claimant. Applying the provisions under Section 4(1)(c) of the Workmen's Compensation Act, a person is entitled to get compensation if the injury has resulted in a permanent disablement and loss of earning capacity as per the schedule of the Workmen's Compensation Act or when it is not under the schedule, any disablement or loss of earning capacity which has affected the claimant. So in order to entitle a person to get compensation under the Workmen's Compensation Act, it is mandatory there must be a disablement coupled with loss of earning capacity to assess the compensation under the Workmen's Compensation Act. Unfortunately the document namely Ext. A7 produced by the claimant does not reveal that he had sustained any permanent disablement or loss of earning capacity as a result of the injuries sustained in the accident. When it is so, the provisions of the Workmen's Compensation Act cannot be extended. M.A.C.A. 1389/2008 -3- Admittedly the coverage under the policy is only under the Workmen's Compensation Act which means that there must be an injury which is to be compensated under the Workmen's Compensation Act. Therefore the Insurance coverage cannot be there and there is nothing wrong committed by the tribunal in exonerating the Insurance Company from the liability. 3. The tribunal rightly found that an action on tort will lie under the provisions of Motor Vehicles Act and thereafter calculated the compensation and directed the owner to compensate the claimant. It is also strictly in accordance with law which does not require interference. Therefore the appeal lacks merit and the same is dismissed but without cost. M.N. KRISHNAN,JUDGE vkm