The insurer is liable for full compensation under the Motor Vehicles Act if the deceased was engaged in loading and unloading for the insured and an appropriate premium was paid.

JUDGMENT

These two appeals are filed against the award passed in O.P.(MV) No.136/2005 on the file of the Motor Accidents Claims Tribunal, Perumbavoor. M.A.C.A. No.1522/2016 is filed by the 3rd respondent in O.P.(MV) No.136/2005 and M.A.C.A. No.3354/2021 is filed by the petitioners in that claim petition. (Parties are hereinafter mentioned in accordance to their rank before the Tribunal).

2. Petitioners are the legal heirs of the deceased in a motor accident occurred on 18.02.2013. The deceased was engaged in loading of granite from a granite quarry at Mannur into the tempo bearing registration No.KL-07/G-5758. The lorry was parked by the 1st respondent driver at the place of occurrence. At that time somebody was engaged in cutting a big njaval tree and the said tree fell down into the platform of the tempo where the deceased was standing and he sustained fatal injuries and he was immediately taken to Medical College Hospital, Kolenchery but he succumbed to the injuries on the same day. Respondents 1 and 2 remained ex parte and the 3rd respondent insurance company filed a written statement. On the side of the petitioners, PWs 1 to 3 were examined and Exts.A1 to A5 were marked. Ext.X1 is the CD file, Ext.X1(a) is the case diary and Ext.X1(b) is the copy of the charge sheet in the C.D. file. After going through the evidence and documents the Tribunal dismissed the same finding that the petitioners have failed to establish negligence on the part of the 1st respondent driver.

3. Aggrieved by the same, the petitioners filed M.A.C.A.No.2388/2009 before this Court. This Court allowed that appeal as per judgment dated 29.07.2015 and was pleased to set aside the award and remanded the case for consideration by the Tribunal for fixing the quantum of compensation and allied matters like liability of owner and insurer.

4. Based on the remand order, the Tribunal again considered the matter and found that the insurance company is liable to indemnify the owner and also found that the petitioners are entitled for an amount of Rs.11,42,250/- as compensation with 9% interest per annum from the date of petition till realisation. Aggrieved by the quantum of compensation, M.A.C.A No.3354/2021 is filed by the petitioners. Aggrieved by the finding regarding the liability, the 3rd respondent insurance company filed M.A.C.A. No.1522/2016.

5. Heard the learned Senior Counsel Sri.Mathew Jacob, who appeared for the 3rd respondent insurance company instructed by his retaining counsel and Advocate Sheji P. Abraham who appeared for the petitioners.

6. The Senior Counsel submitted that the insurer is not liable to indemnify the owner in respect of the entire compensation fixed, i.e., more than what is payable under the Workmen’s Compensation Act. According to the Senior Counsel, the insurance company collected an additional premium of Rs.25/- towards workmen’s compensation liability to one employee. It is the case of the insurance company that the deceased who was engaged in loading and unloading goods is covered under the Workmen’s Compensation Act. It is also contended that though under Section 167 of the Motor Vehicles Act an option is given to file claim either by invoking the powers under the provisions of the Motor Vehicles Act or under the Workmen’s Compensation Act. It is argued that the liability of the insurer will be only under the provisions of the Workmen’s Compensation Act if it is established that the deceased injured was an employee of the insured. The Senior Counsel submitted that the petitioners are entitled an amount of Rs.3,79,120/- with interest at the rate of 12% per annum from the date of accident and also Rs.2,500/- towards funeral expenses under the Workmen’s Compensation Act.

7. The counsel for the petitioners submitted that the Tribunal considered all the aspects and found that the petitioners are entitled compensation and there is nothing to interfere with the same. The counsel takes me through the endorsement IMT 39 as stated in Ext.B1 a