IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 MACA.No. 1320 of 2005(D) --------------------------------- AGAINST THE ORDER DATED 30/03/2004 IN (AWARD) IN OPMV.1564/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT/APPLICANT : ----------------------------- DEEPAK KUMAR @ JOY, S/O.MANOHARAN PILLAI PACHAYIL VEEDU, MOOTHALA P.O., PALLICKAL(VIA), KILIMANOOR, TRIVANDRUM DISTRICT. BY ADV. SRI.NAGARAJ NARAYANAN SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR RESPONDENTS/RESPONDENTS : --------------------------------------- 1. THE MANAGING PARTNER, M/S.ZIGMA ENTERPRISES, 2ND MILE STONE, KILIKOLLOOR, KOLLAM. 2. JAMALUDEEN, S/O.AHAMMED KUNJU, THAJUNNISA MANDIRAM, KANDALIL PUTHEN VEEDU, NORTH OF BRIDGE,KILIKOLLOOR, KOLLAM. 3. M/S.NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, ST. JOSEPH PRESS BUILDING, VAZHUTHACAUD, TRIVANDRUM-14. ADV. SRI.M.A.GEORGE - R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION HEARD ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 1320 OF 2005 --------------------- Dated this the 24th day of September, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Attingal, in OP(MV) 1564/99. It was an application filed under section 163(A) of the Motor Vehicles Act. The Tribunal found that Sec.163(A) is not applicable to the case and therefore non suited the claimant. It is against that decision, the claimant has come up in appeal. 2. Learned counsel for the Insurance Company first contend that the income shown in the petition is Rs.5,000/- per month which means it will be Rs.60,000/- per annum. Under section 163(A) of the Motor Vehicles Act, if the amount of income exceeds Rs.40,000/-, Sec.163(A) cannot be made applicable. But it is a point that has not been considered by the Tribunal. It is also settled position that amendments can also be made by the claimant. So I direct the Tribunal to consider the question of maintainability. If appropriate application is moved by the claimant for amendment, that also shall be considered by the Tribunal. 3. The second question to be considered is regarding the disablement. The certificate issued by the Doctor has been MACA No. 1320/05 2 produced which would show that the claimant is having 11% disability. But the Tribunal held that since the disablement is as contemplated under explanation to Sec.163(A), which refers to the disablement to the Workmen's Compensation Act, the petition is not maintainable. 4. it is true that the injury sustained is not a scheduled injury. But, at the same time, Sec.4(1)(c) of the Workmen's Compensation Act deals with non schedule injuries as well. It is a point that has not been considered by the Tribunal. Therefore, it also requires consideration. Therefore, the award under challenge is set aside and the matter is remitted back to the Tribunal for fresh consideration of the matter as stated above. Both parties are permitted to adduce documentary as well as oral evidence in support of their respective contentions. Parties are directed to appear before the Tribunal on 5.11.08. M.N.KRISHNAN, JUDGE vps MACA No. 1320/05 3