THOMAS Vs. PERIYA SWAMY AND ANR.
LAWS(KER)-2003-1-110
HIGH COURT OF KERALA
Decided on January 13,2003

THOMAS Appellant
VERSUS
Periya Swamy And Anr. Respondents

JUDGEMENT

K.A. Abdul Gafoor, J. - (1.) When a driver attempted to start a vehicle and to proceed, the vehicle got exploded. The driver succumbed to the injuries. A passenger in the vehicle got injured. This gave rise to two claims, one by the dependents of the deceased driver and the other by the injured. The tribunal below found that the driver himself was negligent. Therefore he or his dependents could not have cashed out that negligence to demand compensation. The claim of the dependents of the deceased was dismissed limiting it to the liability in terms of Sec. 140 of the Motor Vehicles Act, 1988. The claim by the injured was allowed. But the insurance company was absolved as there was violation of the conditions of the policy because the vehicle, though registered as a passenger vehicle, was carrying goods as well. It was in the above circumstances, these appeals have been filed.
(2.) So far as M.F.A. No. 740/94 is concerned, it is an admitted case that the driver succumbed to the injuries. Necessarily, even going by the Act policy, the insurer is liable to pay the compensation in terms of the Workmen's Compensation Act as the driver died during the course of employment as a result of the accident. Merely because the claim was under Sec. 166 of the Motor Vehicles Act, it cannot be taken that the insurer shall be absolved fully in such circumstances. Whatever be the situation, the dependents of the deceased was entitled to be compensated. Even if they had claimed compensation payable under the Workmen's Compensation Act, the very same insurer is liable to pay the same. Accordingly, we are of the view that the dependents of the driver, namely the Appellants in M.F.A. No. 740/94, are entitled to the amount payable in terms of the Workmen's Compensation Act.
(3.) The accident took place on 9th March 1990, before the enforcement of Act 35/95 by which the Workmen's Compensation Act has been amended enhancing the rate of wages for computation of compensation and the percentage of disability in certain cases. This is a case of death. Necessarily, the wages has to be computed as Rs. 1,000. When compensation is computed in terms of Sec. 4 as it then stood, the compensation payable will be equal to 40 per cent of the monthly wages of the deceased workman multiplied by 211.79. i.e. The Appellant in M.F.A. No. 740/94 will be entitled for altogether an amount of Rs. 84,716 with 6 per cent interest from the date of accident. The amount, if any, paid by the insurer towards the interim award shall have to be deducted from the amount so to be paid. M.F.A. No. 700/94 is allowed in part as above: no costs.;


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