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.
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M.A.C.A. No. 2613 of 2008
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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. TheM.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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M.A.C.A.No.2613/2008
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Judgment
Date:1st December,2008