Kerala High Court
The Oriental Insurance Co. Ltd vs Thankachan on 1 December, 2008
Author: Koshy
Bench: J.B.Koshy, Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2613 of 2008(Y)
1. THE ORIENTAL INSURANCE CO. LTD.,
... Petitioner
Vs
1. THANKACHAN, S/O.PALAMATTOM VARGHESE,
... Respondent
2. SHIBU DAVID, S/O.CHUNDATTUSSERY
3. U.V.AUGUSTINE, URAKATH HOUSE,
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SRI.P.V.BABY(CAVEATOR)
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :01/12/2008
O R D E R
J.B. Koshy & Thomas P.Joseph, JJ.
-------------------------------------- M.A.C.A. No. 2613 of 2008
--------------------------------------- Dated this the 1st day of December, 2008 Judgment Koshy,J.
First respondent in this case sustained very serious injuries in a motor accident on 17.11.2000. He applied for compensation under section 163-A of the Motor Vehicles Act. He sustained several fractures. More than Rupees Two lakhs was spent by him for treatment. Even though claim petition was originally filed under section 163-A (1), considering the fact that he cannot recover the entire medical expenses on the basis of the application filed by him, application was converted under section 166 of the Motor Vehicles Act. Tribunal found that the accident occurred due to the negligence of the claimant himself. Claimant was driving the vehicle. No other vehicle was involved. Tribunal found as follows:
"The petitioner's case simply is that while he was driving the car No. KL-8/G 7909 the said car got involved in an accident at Mazhuvanchery and the petitioner does not explain how the accident occurred or who was responsible for the accident. The Ext.A1 F.I.R. was registered by the police against the petitioner and Ext.A2 charge was laid against him by the police after investigation. The M.A.C.A.No.2613/2008 2 petitioner has no explanation for the charge against him. It appears that he did not adduce any oral evidence of his own for fear that the exact reason for the accident would come out. Any way, it is practically not in dispute that the accident occurred due to the negligence or carelessness on the part of the petitioner himself. Accordingly, it is found that the motor accident involving the car No.KL-8/G 7909 at Mazhuvanchery on 17.11.2000 occurred due to the negligence on the part of the petitioner who was the driver of the said car at the time of the accident."
A vehicle can overturn due to many reasons like skidding etc. Tribunal found that in Workmen's Compensation case, Commissioner can award compensation irrespective of negligence, and awarded compensation of Rs.4,15,100/- with 7% interest. Section 3 of the Workmen's Compensation Act (for short 'the Act') states as follows:
"3. Employer's liability for compensation:-
(1) If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:
Provided that the employer shall not be so liable --
(a) in respect of any injury which does not result in the total or partial disablement of the workman for a period exceeding three days;
(b) in respect of any injury, not resulting in death or permanent total disablement caused by an accident which is directly attributable to --M.A.C.A.No.2613/2008 3
(i) the workman having been at the time thereof under the influence of drink or drugs, or
(ii) the willful disobedience of the workman to an order expressly given,or to a rule expressly framed, for the purpose of securing the safety of workmen, or
(iii) the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workman, ..."
There is no contention or pleading by the appellant that he willfully disobeyed any rule or willfully removed any safety device as mentioned in clause (b) of the proviso to section 3 of the Act so as to deny compensation. Even if a claim is considered under the provisions of the Workmen's Compensation Act, compensation can be determined only with respect to the provisions of that Act.
2. The driver was specifically covered by the insurance policy for the liability under the Workmen's Compensation Act. Even though income was claimed as Rs.4,000/-, maximum income that can be claimed during the relevant time of accident under the Workmen's Compensation Act is only Rs.2,000/- and considering his age, apt relevant factor is 175.54. 27% was the disability assessed by the doctor. Therefore, compensation payable will be 175.54 x 2000 x 27 x 60 = Rs.56,874.96 rounded to Rs.56,875/-. The 100 100 M.A.C.A.No.2613/2008 4 claimant will be entitled to Rs.56,875/- with 12% interest from the date of application till its deposit. Even though interest provided under section 4A of the Act is 12% per annum from the date when compensation fell due (date of accident) since claim was filed under section 166 of the Motor Vehicles Act, Motor Accidents Claims Tribunal considered interest only from the date of application as provided under section 171 of the Motor Vehicles Act. The above amount need be deposited by the insurance company after deducting the amount already deposited.
The appeal is allowed to the above extent.
J.B.Koshy Judge Thomas P. Joseph Judge vaa M.A.C.A.No.2613/2008 5 J.B. KOSHY AND THOMAS P.JOSEPH,JJ.
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Judgment Date:1st December,2008