Point of Law: Accident claim - Vehicle driven by the claimant is covered by package policy with Limited liability for Personal Accident cover of owner driver. The claimant as paid employee under the owner of the vehicle is entitled to claim compensation only under the Workman Compensation Act and the petition under section 163-A of the Act, is not maintainable

JUDGMENT :-

(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicle Act, 1988, against the judgment and decree made in M.C.O.P.No.249 of 2015 on the file of the Motor Accidents Claims Tribunal (District Judge), Krishnagiri dated 21.11.2016)

1. Heard the Learned Counsel for the appellant and the Learned Counsel for the respondent No.1.

2. This Appeal is preferred by the Insurance Company being aggrieved by the award of the Tribunal fastening liability on the appellant/Insurance Company to pay compensation of Rs.4,18,900/- with 7.5% interest to the claimant. The appeal is filed challenging both the liability as well as the quantum.

3. As per the claim petition filed under Section 163-A of the M.V Act, the claimant Rafi along with one Thangavelu, as drivers of the lorry bearing registration No.KA-01-D-1685, left Sankagiri to Solapur at Maharashtra on 27.03.2012. While the claimant was driving the lorry along the Chitradurga to Hospet Highway in between the villages Madanaickanahalli and Chikkakondanahalli, a cyclist, who was going in front of the lorry suddenly turned to the middle of the road. To avoid hitting the cyclist, the claimant swerved the lorry but unfortunately hit the mini tempo van coming from Hospet side towards Chitradurga side. Due to the sudden impact, the claimant sustained fractured injuries and taken to Government Hospital at Chitradurga immediately. Next day he was shifted to Manipal Hospital at Bangalore and was treated as inpatient till 02.04.2012. Thereafter, for one year taking treatment at Uthangarai. The accident occurred due to the sudden crossing of the cyclist. The injuries, he sustained has caused permanent disability and loss of earning. Due to the fracture of left maxilla and loss of teeth, he is not able to speak fluently as before. Due to injuries in his right leg, he is not able to walk freely as before and stand continuously. Therefore, claiming compensation of Rs.5,00,000/- against the owner of his lorry and its insurer, petition filed before the M.A.C.T, Krishnagiri.

4. The Insurance Company contested the claim petition on the ground that the claim is not maintainable since the claimant is the tortfeasor. The police had registered criminal case against the claimant for offences under section 279 and 337 of I.P.C. in Crime No.18/12 (on the file of Thruvanur Police Station). The claimant had no valid driving license to drive the lorry, hence the insurance company is not liable to indemnify the claimant. The owner of the mini tempo trax van and it insurer are necessary parties. The claim petition is bad for non-joinder of necessary parties. The claimant is an employee under the insured. He is not a third party. The Insurance does not cover the employee driver. The claimant has to seek compensation before the Labour Tribunal under Workman Compensation Act and not before the M.A.C.T. Without prejudice, the claim of compensation is highly excessive and without any basis, for loss of income and proof of income.

5. To prove the claim, the petitioner and the doctor, who gave the disability certificate were examined as P.W-1and P.W-2. Ex.P-1 to Ex.P-12 were marked. On behalf of the respondent, the Administrative Officer of the Insurance Company was examined as R.W-1 and the copy of the Insurance Policy marked as Ex.R-1.

6. The Tribunal based on the deposition of P.W-1, R.W-1, the F.I.R Ex.P-1 and Ex.P-8 the Motor Vehicle Inspector report concluded that, the accident has occurred due to the negligence of the claimant. At the time of accident, the claimant had valid driving license Ex.P-5. The 1st respondent being the owner of the lorry has employed the claimant to be the driver of the lorry. Hence, the employer/insured is responsible for the tortious act of the employee. In turn, the Insurance Company is liable to indemnify the insured.

7. Regarding the quantum of compensation, the Tribunal taking note of the wound certificate Ex.P-2 and the discharge summary Ex.P-3 issued by Manipal Ho