NEW INDIA ASSURANCE CO LTD Vs. PATHU

JUDGEMENT

(1.) This is an appeal by the Insurance Company, which was the second

(2.) In this appeal, one Mohammed, who was working as a cleaner on daily wages in Lorry No. KLE 2904, died in a motor accident that took place at 9.30 A. M. on 7-1-1982 near Alwaye. The Tribunal came to the conclusion that the accident took place as a result of rash and negligent driving by the driver, the third respondent, and as a result of it, the lorry toppled and the cleaner Mohammed fell under the lorry and was crushed to death. The legal representatives and dependents of the deceased filed the Claim Petition on the basis that the deceased was earning Rs. 1,000/- per month and that he was aged 43 years at the time of his death. The Tribunal came to the conclusion that the deceased was earning only Rs. 450/- per month as his daily wages were proved to be Rs. 15/- per day, and adopting the multiplier of 17, the Tribunal determined the total loss of dependency at Rs. 91,800/-, and out of this deducted 25% towards personal consumption, and out of the balance deducted one - third towards vagaries of life, unforeseen contingencies and advantages of lump sum payment, and awarded a compensation of Rs. 45.900/-. In addition to that it also awarded a compensation of Rs. 500/- towards funeral expenses, and Rs. 500/- towards cost of transport and treatment for the short time he was alive. In the award, the Tribunal directed that the second respondent, Insurance Company, shall pay the amount within two months and that the claimants shall share the amount equally. It also awarded 12% interest per annum from the date of the Petition, 30-3-1982.

(3.) In this appeal, Shri. Mathews Jacob, learned counsel for the appellant, raised three arguments. The policy is an Act policy. Under S.95(1) and clause (i) of the proviso to S.95(1) the liability of the Insurance Company is limited to the liability arising under the Workmen's Compensation Act. The Tribunal committed a mistake in awarding compensation in excess of the same, and making the Insurance Company liable to pay the entire amount. He contends that, according to the Workmen's Compensation Act, on the basis of daily wages of Rs. 15/- per day, the compensation payable is only Rs. 21,000/-. Excess compensation, if any, has necessarily to be paid by the present fifth respondent, the owner of the lorry, and the present sixth respondent, the driver who was responsible for the accident. In support of his arguments, he places reliance upon clause (i) of the proviso to sub-s.(1) of S.95, and S.110AA. He contends that the award passed by the Tribunal is against the law enunciated in Ayisha Beevi v. Kalidasan, 1987 (1) K L. T. 509. If there is any liability in excess of the compensation payable under the Workman's Compensation Act, respondents 5 and 6 alone can be made liable and the Insurance Company cannot be made liable to pay anything more than Rs. 21,000/-.