JUDGMENT : (R. Subbiah, J.) (Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 22.04.2019 made in MCOP.No.585 of 2017 on the file of the Motor Accident Claims Tribunal, Special Sub Judge (MACT), Krishnagiri.) This appeal is heard through Video Conferencing. 2. This appeal has been filed by the Insurance Company as against the award dated 22.04.2019, passed in MCOP No.585 of 2017 by the Special Sub Judge/Motor Accident Claims Tribunal, Krishnagiri, questioning the findings rendered by the Tribunal in fixing the liability on the part of the Insurance Company to pay the compensation to the claimant by indemnifying the owner of the vehicle involved in the accident. 3. For the sake of convenience, the parties are referred to as per the rankings before the Tribunal. 4. The first respondent is the claimant before the Tribunal and the second respondent is the owner of the insured vehicle. It is the case of the claimant before the Tribunal that, on 29.06.2014, he was driving the Car bearing Registration No.TN-24-L-4555 from Rajamunthiri to Bargur Village, along with one Palaninathan, who was an occupant in the said Car. At about 3.30 p.m. while they were nearing Thimmapuram Village, some cattle entered on the main Road and in order to avoid hitting the cattle, he swerved the Car to the left side of the road. In that process, he lost his control and the Car got capsized, as a result of which, he sustained grievous injuries. Immediately, he was taken to Government Hospital, Seelgaluripettai and he was given first-aid. Thereafter, he was taken to Community Hospital, Bangalore. Subsequently, he took treatment in two Private Hospitals, viz., Lalitha Hospital. Bangalore and Manipal Hospital. On account of the said accident, he sustained Traumatic Brain injury, Acute Subdural Hematoma along Falax and Tentroium Cerebelli, Bilateral Chronic Sudural Collections, Fracture Transverse Process of C7 Vertebra, Compression Fracture of T12 Vertebral body with Paraplegia, Fracture through left L1, 2, 3 Transverse Processes, Fracture right first to seventh Rib and left first to seventh Ribs with bilateral Hemothorax and Liver laceration with massive Hemopheritoneum. He was a heavy goods vehicle driver by avocation and earning Rs.15,000/- p.m. Hence, he made a claim for a sum of Rs.50,00,000/- as compensation. 5. The case of the claimant was resisted by the Insurance Company by filing a counter statement. He was a heavy goods vehicle driver by avocation and earning Rs.15,000/- p.m. Hence, he made a claim for a sum of Rs.50,00,000/- as compensation. 5. The case of the claimant was resisted by the Insurance Company by filing a counter statement. It is the case of the Insurance Company that at the time of the accident, the Car bearing Registration No. TN 24 L 4555 was driven by the claimant himself. The accident is the result of his own negligence. No other third-party-vehicle was involved in the accident. While so, the claimant himself has to be construed as the tort-feasor and he is not a third party to the insured vehicle. Therefore, it is stated that the claimant is not entitled for compensation. Thus, the Insurance Company sought for dismissal of the claim petition. 6. In order to the prove the averments in the claim petition, on the side of the claimant, he himself examined as PW1and 10 documents were marked as Exs.P1 to P10 on his side. On the side of the Insurance Company, RW1 was examined and Ex.R1, Insurance Policy was marked. The disability certificate issued to the PW1 was marked as Ex.C1. 7. The Tribunal, after analysing the entire evidence, has come to the conclusion that, at the time of the accident, the claimant was working as a driver under the owner of the insured vehicle and the accident occurred only during the course of employment. Therefore, the Insurance Company is liable to pay the compensation. By coming to such conclusion, the Tribunal has passed an award for a sum of Rs.30,93,000/- as compensation. The break-up details of the amounts awarded by the Tribunal under various heads are as follows: S.No. Heads under which the amount is awarded by the Tribunal Amount in Rs. 1. Loss of Earning Power 17,21,000 2. Medical Expenses 11,51,000 3. Transport, Nutrition and attender charges 20,000 4. Pain and Sufferings 1,00,000 5. Loss of Amenities and Enjoyment of Life 1,00,000 6. Damages to clothing and articles 1,000 Total 30,93,000 8. Now, it is the submission of the learned counsel for the appellant/Insurance Company that as the claimant himself is the tort-feasor, the claim petition filed under Section 166 of the Motor Vehicles Act is not maintainable. Pain and Sufferings 1,00,000 5. Loss of Amenities and Enjoyment of Life 1,00,000 6. Damages to clothing and articles 1,000 Total 30,93,000 8. Now, it is the submission of the learned counsel for the appellant/Insurance Company that as the claimant himself is the tort-feasor, the claim petition filed under Section 166 of the Motor Vehicles Act is not maintainable. Without considering the legal aspects, the Tribunal has awarded the compensation on the reasoning that the claimant was employed as a Driver under the owner of the insured vehicle and the accident had occurred only during the course of the employment. However, there is no pleading in the claim petition to the effect that he was employed as a driver under the owner of the insured vehicle. Further, in cross-examination, the claimant admitted that he was working as a truck-driver. Even assuming for a moment that he was working as a driver under the owner of the insured vehicle, he is eligible to get compensation only in accordance with the Workmen's Compensation Act (now, Employees' Compensation Act). Hence, if at all this Court comes to the conclusion that the accident occurred only during the course of the employment, as a driver, calculation has to be made in accordance with the Workmen's Compensation Act. 9. Countering the said submissions, the learned counsel for the first respondent/claimant submitted that there is enough evidence to show that the accident had occurred only during the course of the employment. The claimant, as PW1, in his evidence has categorically stated that at the time of the accident, he was working under the owner of the insured vehicle, but, in his cross-examination, nothing adverse could be elicited by the Insurance Company. Therefore, the Tribunal, by relying upon the evidence of PW1, has come to the conclusion that the accident had occurred only during the course of the employment and thus the Tribunal calculated amounts under different heads and passed an award. Absolutely there is no infirmity in the order passed by the Tribunal and therefore, the learned counsel for the first respondent seeks for dismissal of the appeal. 10. Keeping in mind the above submissions made on either side, we have carefully perused the materials available on record. 11. Absolutely there is no infirmity in the order passed by the Tribunal and therefore, the learned counsel for the first respondent seeks for dismissal of the appeal. 10. Keeping in mind the above submissions made on either side, we have carefully perused the materials available on record. 11. We find that the evidence on record shows that at the time of the accident, injured victim/claimant was working as a driver under the owner of the insured vehicle. The claimant also clearly stated in his evidence that, as per the instructions of his employer, who is the owner of the vehicle, while he was returning from Rajamunthiri along with a mechanic carrying some spare parts in the Car, they met with accident. As contended by the learned counsel for the claimant, in the cross-examination, no favourable reply was elicited by the appellant-Insurance Company that would have the effect of disbelieving his case. Hence, the Tribunal, by relying upon the evidence of P.W.1, has come to the conclusion that the accident had occurred only during the course of employment. However, since the claimant was a tort-feasor, he is not entitled to make a claim under Section 166 of the Motor Vehicles Act. In such circumstance, the Tribunal ought to have awarded compensation only as per the provisions of the Workmen's Compensation Act. Hence, as per the Insurance Policy cover under Intelligent Manual Transmission (IMT) 28, for paid driver, the compensation could be re-calculated in accordance with the provisions of the Workmen's Compensation Act. 12. Thus, as fixed by the Tribunal, the monthly income of the claimant is taken at Rs.8,000/-. Considering the age of the claimant being 34 (as per the Driving Licence) at the time of the accident, the factor "199.4" is to be applied. If so, the amount works out to Rs.15,95,200/- [8,000 x 199.4]. Considering the percentage of disability being 80%, the loss of income comes to Rs.12,76,160/- [15,95,200 x 80%]. As per the provisions of The Workmen's Compensation Act, the claimant is entitled for only 60% of the monthly wage calculated along with relevant factor as mentioned above. Therefore, the actual loss of earning power works out to Rs.7,65,696/-. (Rs.12,76,160/- X 60/100). Thus, the sum of Rs.17,21,000/- awarded under the head "Loss of Earning Power" is reduced to Rs.7,65,696/-. 13. As per the provisions of The Workmen's Compensation Act, the claimant is entitled for only 60% of the monthly wage calculated along with relevant factor as mentioned above. Therefore, the actual loss of earning power works out to Rs.7,65,696/-. (Rs.12,76,160/- X 60/100). Thus, the sum of Rs.17,21,000/- awarded under the head "Loss of Earning Power" is reduced to Rs.7,65,696/-. 13. Further, the sum of Rs.11,51,000/- awarded by the Tribunal under the head "Medical Expenses" is fair and reasonable and hence, the same is hereby confirmed. 14. In effect, the total compensation amount payable to the claimant is re-calculated as below: Sl. No. Head under which the compensation is awarded Amounts awarded by the Tribunal under Motor Vehicles Amounts awarded by this Court under Workmen's Compensation Act 1 Loss of Earning Power 17,21,000 7,65,696 2 Medical Expenses 11,51,000 11,51,000 3 Transport, Nutrition and attender charges 20,000 - 4 Pain and Sufferings 1,00,000 - 5 Loss of Amenities and Enjoyment of Life 1,00,000 - 6 Damages to clothing and articles 1,000 - Total 30,93,000 19,16,696 15. Accordingly, the total sum of Rs.30,93,000/- awarded by the Tribunal towards compensation is hereby reduced to Rs.19,16,696/-, which shall carry interest at 7.5% from the date of claim petition till the date of payment. The appellant/Insurance Company is directed to deposit the total compensation determined by us in this appeal along with interest and costs if any awarded by the Tribunal, after adjusting the amount if any already deposited, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the entire amount in accordance with law before the Tribunal. The appellant/Insurance Company is permitted to withdraw the excess amount of compensation, if any, lying in deposit before the Tribunal. 16. With the above observations and directions, the Civil Miscellaneous Appeal is partly allowed. No costs. Consequently, connected miscellaneous petition is closed.