IMPORTANT POINT
After accepting the additional premium, insurance company cannot escape from the liability to indemnify the owner of the vehicle.

A.K. Basheer, J.—This appeal is at the instance of the claimant in a petition filed under Section 166 of the Motor Vehicles Act, 1988. The Tribunal quantified the compensation receivable by the appellant at Rs. 3,90,100/- and held that the appellant would be entitled to recover only Rs. 1,37,950/- from the insurer of the vehicle out of the said amount. Appellant was directed to recover the balance amount of compensation from the driver and owner of the vehicle. The above award is under challenge in this appeal.

2. The case of the appellant before the Tribunal may be briefly noticed.

3. On June 9, 1997, the appellant was travelling in a lorry bearing registration No. KRP 3315 which was owned by respondent No. 2 herein. He was travelling in the said lorry in his capacity as a “coolie worker”. While the lorry was ascending a steep hill, respondent No. 1, the driver, apparently lost control and the vehicle started to run backwards. The driver jumped out of the cabin leaving the appellant helpless in the vehicle which capsized with the load of laterite stones. The appellant sustained grievous injuries as he was trapped under the load of laterite stones. Appellant alleged that the accident occurred because of the rash and negligent driving of the vehicle by the driver. Therefore he instituted the petition for compensation against the owner, driver and the insurer of the vehicle claiming a total sum of Rs. 10 lakhs, as amended latter.

4. Respondents Nos. 1 and 2 in their statement denied the allegation of rash and negligent driving by the driver. According to these respondents, the vehicle capsized while it was passing a culvert. They further contended that the compensation, if any, was liable to be paid by respondent No. 3 the Insurance Company with whom the vehicle was insured.

5. In its written statement the Insurance Company disowned its liability contending that the appellant who was admittedly travelling as a “loading coolie” in the goods vehicle was not entitled to get any compensation since the insurance policy was an “Act only” policy.

6. It came out in evidence that appellant was rendered “a total paraplegic as a result of fracture dislocation of T11/T12 vertebrae”. The Medical Board attached to the District Hospital, Manjori which issued Ext. X1 certificate further noted that the appellant had suffered deformity at thoracumbar region with “partial ankylosis of the hip, knee and ankle with loss of sensation below the T12 dermatomic”. Resultantly appellant suffered urinary incontinence. The board assessed that the appellant had 70% permanent partial disability. In Ext A3 certificate issued by Professor Dr. Thomas Joseph, M.S., former Head of Neurosurgery II, CMC Hospital Vellore and now working as a consultant Neuro Surgeon at K.G. Hospital Coimbatore certified that the appellant had suffered fracture of T12 vertebrae and was totally paralysed below the hip. The doctor further stated that the appellant would be unable to travel and was very unlikely to get back to his original work.

7. The Tribunal after considering the medical evidence available on record accepted the percentage of disability as certified by the doctors. Appellant’s monthly income was notionally fixed as 1800/- and applying a multiplier of 17 the tribunal reckoned the compensation payable to him under the head of disability as

Rs. 2,57,000/-. The appellant was also found entitled to get a sum of Rs. 50,000/- under the head of pain and suffering,’ 50,000 towards medical expenses and Rs. 21,600/- under the head of loss of earning. Thus the tribunal quantified the compensation at Rs. 3,90,100/-.

8. However, the Tribunal took the view that appellant would be entitled to get compensation only as provided under the Workmen’s Compensation Act since the policy issued by the Insurance Company in respect of the vehicle was an “Act only” policy. Therefore the tribunal calculated the compensation payable under the Workmen’s Compensation Act applying the relevant facto