The Oriental Insurance Co. Ltd. v. Sunil Kumar P.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 24TH DAY OF JUNE 2020/3RD ASHADHA, 1942** **MACA.No.3158 OF 2014** **AGAINST THE AWARD DATED 27-05-2014 IN OP(MV)** **NO.197/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR** ## **APPELLANT/3RD RESPONDENT IN THE OP:** **THE ORIENTAL INSURANCE CO.LTD., THRIPUNITHURA, REP.BY THE AUTHORISED SIGNATORY,THE ORIENTAL INSURANCE CO.LTD., REGIONAL OFFICE ERNAKULAM, METRO PALACE, ERNAKULAM NORTH, KOCHI-18.** **BY ADV. SRI.A.R.GEORGE** ## **RESPONDENT/CLAIMANT:** **SUNIL KUMAR P.,S/O.KUNJIMOL, PATHYAM PULLY HOUSE,PURATHOOR P.O., TIRUR, MALAPPURAM DISTRICT - 676 102.** **BY ADV. SRI.A.KRISHNAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 24-06-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3158/2014 : 2 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 24[th] day of June, 2020**_ The 3[rd] respondent-insurer in OP(MV) No.197/2012 of the Motor Accidents Claims Tribunal, Tirur is in appeal invoking Section 173 of the Motor Vehicles Act, 1988, aggrieved by Award dated 27.05.2014 of the Tribunal. 2. Brief facts necessary to decide the issues involved in this appeal are as follows:- The respondent in this appeal was aged 31 years when the Mini lorry No.KL-08E-9243 in which he was working, met with an accident hitting another stationary lorry, on 12.03.2011. The respondent filed the OP(MV) under Section 166 of the Motor Vehicles Act stating that he is a Coolie having monthly income of ₹6,000/- and suffered MACA No.3158/2014 : 3 : 70% disability. The respondent claimed a total compensation of ₹20 lakhs initially. The pleadings were amended later. The amended claim of the respondent was that he is a river sand loading worker working under Harijan Fish Vendors Co-operating Sangham, Kulathur and has an income of ₹15,000/- per month. By the said amendment, the compensation amount claimed was also enhanced to ₹35 lakhs. 3. The respondent produced Exts.A1 to A14 documents. The appellant-insurer produced Ext.B1 photocopy of insurance policy. Disability Certificate issued from District Medical Board, Manjeri was marked as Court Ext.C1. 4. The Tribunal, on appreciation of evidence, found that the accident occurred due to the rash and negligent driving of the Mini lorry bearing No.KL-8E-9243 in which the respondent was employed. The Tribunal found that the respondent sustained grievous injuries in the accident and MACA No.3158/2014 : 4 : hence is entitled to compensation. As regards disability of the respondent, the Tribunal found the occupational disability of the respondent as 50%. The notional income of the respondent was fixed at ₹4,000/-. On these premises, the Tribunal awarded a compensation ₹12,98,000/- under the following heads:- |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed (**`**)**|**Amount**<br>**awarded (**`**)**|**Basis – vital**<br>**details in a**<br>**nut-shell**| |---|---|---|---|---| |1|Loss of earning (Total)|3,00,000|24,000|For 6 months| |2|Loss of earning (partial)|Nil|Nil|| |3|Medical, miscellaneous &<br>bystander expenses|6,00,000|4,22,000|As per Ext.A9 to<br>A12 series| |4|Future treatment|1,00,000|20,000|| |5|Bystander expenses|50,000|5,000|| |6|Transportation expenses|50,000|20,000|| |7|Extra nourishment|50,000|5,000|| |8|Damage to clothing, etc.|5,000|1,000|| |9|Pain and suffering|2,00,000|75,000|| |10|Loss of dependency|Nil|Nil|| |11|Loss of consortium|Nil|Nil|| |12|Loss of love and affection|Nil|Nil|| |13|Loss of estate|Nil|Nil|| |14|Compensation towards<br>permanent partial disability &<br>earning power|21,00,000|5,78,000|| |15|Compensation for loss of<br>amenities|2,00,000|1,00,000|| MACA No.3158/2014 : 5 : |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**claimed (**`**)**|**Amount**<br>**awarded (**`**)**|**Basis – vital**<br>**details in a**<br>**nut-shell**| |---|---|---|---|---| |16|Any other heads:-<br>Loss of earning capacity<br>Funeral expenses<br>Disfiguration|25,00,000<br>Nil<br>50,000|Nil<br>Nil<br>50,000|| ||**Total**|`3**7,05,000/-**||| ||**Claim limited to**|**35,00,000/-**|**12,98,000/-**|| Interest at the rate of 9% per annum from the date of the OP(MV) was also granted. The appellant was directed to make the payment. It is aggrieved by the said Award that the appellant-insurer is before this Court. 5. The short ground urged by the appellant before this Court is that since the respondent was the Cleaner of Mini lorry, his claim ought to have been filed under the Employees' Insurance Act. Even though his claim will be maintainable under Section 167 of the Motor Vehicles Act, 1988 the compensation amount ought to have been decided as per the provisions of the Employees' Compensation Act, 1923. Had the Tribunal computed the MACA No.3158/2014 : 6 : compensation amount as per the provisions of the Employees' Compensation Act, the total compensation amount payable to the respondent inclusive of treatment expenses would be only ₹7,67,996/-. The award of ₹12,98,000/- by the Tribunal invoking Section 166 of the Motor Vehicles Act is therefore erroneous. 6. The counsel for the respondent, on the other hand, argued that the Tribunal ought to have fixed the notional monthly income of the respondent as ₹8,000/- and ought to have calculated computation taking 70% as the functional disability. The respondent was working as a Cleaner and due to the 70% disability sustained by him, he is not in a position to carry on with the job of Cleaner and he cannot do any other work requiring manual efforts. The amount awarded is therefore very much on a lower side. 7. I have heard the learned Standing Counsel for the appellant-insurer and the learned counsel for the respondent. MACA No.3158/2014 : 7 : 8. The following issues arise for consideration in this appeal:- (1) Whether the Tribunal was justified in computing the compensation under Section 166 of the Motor Vehicles Act ? (2) Whether the Tribunal was justified in fixing ₹4,000/- as notional monthly income of the respondent ? (3) Whether fixation of occupational disability of the respondent at 50% is justified or not ? Though initially the respondent claimed that he is a Coolie/river sand loading worker, the Tribunal found that the respondent was working as a Cleaner in the Mini lorry involved the accident. Since the Mini lorry hit on an stationary lorry, indeed the Driver, Owner and the Insurer of the Mini lorry would be liable to pay the compensation. 9. The liability of the insurer to pay compensation to the respondent is under Section 147 of the Motor Vehicles Act. Section 147(1) of the Motor Vehicles Act reads as MACA No.3158/2014 : 8 : ## follows:- ## “ **Section 147: Requirement of policies and limits of liability** (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which-(a) is issued by a person who is an authorised insurer; and (b) insures the person or classes of persons specified in the policy to the extent specified in subsection (2)-- (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person including owner of the goods or his authorised representative carried in the motor vehicle or damage to any property of a third party caused by or arising out of the use of the motor vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a transport vehicle, except gratuitous passengers of a goods vehicle, caused by or arising out of the use of the motor vehicle in a public place. Provided that a policy shall not be required-- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee-- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability.” MACA No.3158/2014 : 9 : The proviso to Section 147 states that a policy shall not be required to cover liability in respect of death or bodily injury sustained by an employee of a person insured arising out of and in the course of his employment, other than a liability arising under the Workmen's Compensation Act, 1923 in respect of death of or bodily injury to any such employee (a) engaged in driving the vehicle or (b) if it is a public service vehicle, engaged as a Conductor of the vehicle or as a Ticket Examiner on the vehicle, or (c) if it is a goods carriage being carried in the vehicle. 10. In this case, the respondent was engaged as a Cleaner in the Mini lorry. Therefore, sub-clause (c) of Clause (i) of the proviso to Section 147(1) will apply. However, liability of the insurer in respect of the injury sustained by the respondent would be the liability arising under the Workmen's Compensation Act, 1923. 11. In the judgment in _**Oriental Insurance Co. Ltd. v. K.T. Thomas** [2017 (4) KLT 408]_ this Court considered MACA No.3158/2014 : 10 : the case of a Cleaner-cum-Driver travelling in a lorry. This Court held that on an apposite reading of Sections 147 and 167, the intendment of the Legislature appears to be to cover the injury to any person including the owner of the goods or his authorised representative carried in the vehicle or an employee who is carried in the said vehicle. The liability of the insurer would be confined to the extent provided under the Workmen's Compensation Act, 1923. The respondent in the present appeal also, therefore would be entitled to get compensation to the extent provided under the Employees' Compensation Act, 1923. 12. As regards the notional income of ₹4,000/- per month fixed by the Tribunal, going by the judgments of the Hon'ble Apex Court in _**Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [(2011) 13 SCC 236]_ and _**Syed Sadiq and others v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735],_ the fixation of notional income by the Tribunal at MACA No.3158/2014 : 11 : ₹4,000/- cannot be sustained. In _**Syed Sadiq** (supra)_ the Hon'ble Apex Court held that the income of a self-employed person in the year 2008, in the absence of any proof of income, should be treated as ₹6,500/-. Granting necessary yearly increase in this amount, the notional income in the year 2011 should be ₹8,000/-. The respondent is therefore entitled to get his notional monthly income as ₹8,000/- for the purpose of computation of compensation. 13. As regards disability, Ext.C1 Disability Certificate issued from the District Medical Board states as follows:- “He had sustained 1. Grade III B both bones distal find right leg with near circumferential skin loss 2. Laceration left first web space 3. Fracture ankle of mandible – right side. He was treated by 1. Right below knee amputation 2. Debridement & suffering of web left foot 3. ORIF ankle mandible – Right side. Hence he has got permanent partial disability of 70% (seventy).” Since the respondent is working as a Cleaner, the injury MACA No.3158/2014 : 12 : sustained by him as seen above including right below knee amputation would definitely affect the future earning capacity of the respondent to a much higher extent than the 50% fixed by the Tribunal. This Court is of the considered opinion that the Tribunal ought to have fixed the functional disability of the respondent at 70% itself. 14. In view of the findings of this Court on issue No.1 to 3 above, the compensation to which the respondent will be entitled to, under the Employees' Compensation Act, 1923 would be as follows:- 60/100 x ₹8,000 x 205.95 x 70/100 = ₹6,91,992/- The respondent will also be entitled to the treatment expenses calculated by the Tribunal at ₹4,22,000/-. Consequently, the total amount of compensation to which the respondent will be entitled to is ₹11,13,992/(₹6,91,992/- plus ₹4,22,000). 15. In the circumstances, the impugned Award in MACA No.3158/2014 : 13 : OP(MV) No.197/2012 of the MACT, Tirur is set aside. The respondent, however, is held to be entitled to **₹11,13,992/-** . As the compensation is computed under the Employees' Compensation Act, the respondent will be entitled to interest at the rate of 12% per annum with effect from the date of the OP(MV). MACA is disposed of in the above lines. Sd/- **N. NAGARESH, JUDGE** aks/19/06/2020