IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 12TH JULY 2011 / 21ST ASHADHA 1933 MACA.No. 1033 of 2005() ----------------------- OPMV.2162/1995 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT/PETITIONER: ----------------------------------- SIVADASAN. K., S/O. T.R. KUNJU AGED 48 YEARS, KATTAKALAM HOUSE, VADAKKETHARA, KAVASSERY P.O., ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.BINOY VASUDEVAN RESPONDENTS/RESPONDENTS: -------------------------------------------- 1. SUKUMARAN, S/O. CHAMUNNI, AGED 61 YEARS, MURIKKAVU, YAKKARA, YAKKARA AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT. 2. SREELATHA, W/O. MANICKAN, AGE NOT KNOWN, KANNIMOOTHAN HOUSE, MOOTHANTHARA, KODUVAYUR, CHITTUR TALUK, PALAKKAD DISTRICT. 3. M/S. ORIENTAL INSURANCE COMPNAY LTD., V.H. ROAD, PALAKKAD. R2 BY ADVS. SRI.JAMES KURIAN SRI. SANTHOSH MANAYIL R3 BY ADVS. SRI.MATHEWS JACOB, SENIOR ADVOCATE SRI.P.JACOB MATHEW THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 12/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK R.BASANT & N.K.BALAKRISHNAN, JJ. --------------------------------------------------- C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005 --------------------------------------------------- Dated this the 12th day of July, 2011 ORDER/JUDGMENT BASANT,J. Heard. Allowed. The delay of 108 days is condoned. M.A.C.A No.1033 of 2005: Claimant is the appellant. He staked the claim for compensation for loss suffered by him on account of personal injuries in a Motor Vehicle Accident which took place on 21.01.1995. His claim petition described the claim to be one under Section 163 A and 166 of the Motor Vehicles Act. He was the driver of one of the vehicles involved in the accident. 2. The impugned award clearly shows that at the stage of determination of the claim the appellant had specified that his claim must be considered under Section 163A of the Motor Vehicle Act. The Tribunal did not obviously accept that request. The Tribunal felt that impleadment of the owner and insurer of the vehicle which the appellant was driving at the relevant time was essential for considering the claim under Section 163A of the Motor Vehicles Act and The Tribunal however, proceeded to C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005 2 consider the claim under Section 166 of the Motor Vehicles Act and ultimately came to the conclusion that the appellant is entitled to claim 50% of the loss suffered by him from the Driver owner and insurer of the other vehicle involved in the accident, that is the respondents herein. Accordingly, a direction was issued to the respondents to pay an amount of Rs.1,10,125/- as compensation under Section 166 of the Motor Vehicles Act. 3. The appellant claims to be aggrieved by the impugned award. We have heard the learned counsel for the appellant/claimant and respondent/insurer. The insurers liability whether under Section 166 or under 163 A is not disputed. The learned counsel for the appellant assails the impugned order on the following specific grounds: 1. The Tribunal erred grossly in not considering the claim under Section 163 A of the Motor Vehicles Act as specifically requested by the appellant before the matter was taken up for consideration. 2. At any rate, the appellant is entitled to the amounts claimed under Section 163 A of the Motor C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005 3 Vehicles Act. 4. Point No.1: It is now well settled that the claimant has an option to stake the claim either under Section 163A or under Section 166 of the Motor Vehicles Act. The decision in Oriental Insurance Company Limited v. Dhanabai Kanji Gadhvi (SC) [(2011 (1) KLT 617 (SC)] makes it very clear that the claimant has an option to specify that his claim may be considered under Section 163A of the Motor Vehicles Act notwithstanding the fact that simultaneously claims under Section 163A and 166 were pending at the relevant time. The last trace of doubt on the question is removed by the decision in Dhanabai (supra) and we are in total agreement with the learned counsel for the appellant that the Tribunal must have accepted the appellant's request to consider his claim as one under Section 163A of the Motor Vehicles Act. Point No.1 is thus answered in favour of the appellant. 5. Point No.2: The next question is about the quantum of compensation payable under Section 163 A of the Motor Vehicles Act. The Tribunal while computing the compensation under Section 166 of C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005 4 the Motor Vehicles Act had come to the conclusion that the appellant has suffered loss to the tune of Rs.2,20,250/-, though the direction to the respondents was to pay only 15% of the said amount; that is Rs.1,10,125/-. That the appellant had suffered permanent disablement is not in dispute. Of course, there is a dispute about the extent of such permanent disablement. 6. The appellant was referred to the Medical Board at the District Hospital Palakkad and the Medical Board had certified the permanent disability to be 50%. The appellant is a driver by profession. Considering the nature of the physical disability and the nature of employment/avocation of the appellant. It can safely be assumed that 50% is the reduction in earning capacity/permanent disablement under the provisions of The Workmen's Compensation Act. Entries 1, 2, 3 and 4 of Part II of Schedule I clearly indicates that the loss could not have been below 50%. Our attention has been drawn to the fact that the Tribunal had reckoned the percentage reduction in earning capacity to compute the compensation under Section 166 only at 25%. One of the members of the Medical Board who was examined as PW2 had opined that considering the nature of C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005 5 employment the extent of disability would even be greater. The learned counsel for the appellant submits that 50% must be reckoned as the extent of disablement while computing the compensation under Section 163 A. We find the said request to be absolutely reasonable. We find no reason to adopt any other figure as the extent of permanent disablement/disability for the purpose of Section 163A of Motor Vehicles Act. 7. The next question is what is the compensation payable under Section 163 A. The appellant is shown to be aged between 35 and 40 years and 16 can in these circumstance be safely reckoned as the multiplier applicable as per the Second Schedule. The Tribunal had come to the conclusion that the monthly income of the appellant is Rs.2,000/-. That amount can hence be safely reckoned as the multiplicand. Medical bills to evidence expenses exceeding Rs.15,000/- were produced before the Tribunal and the Tribunal had accepted the same also. But in a claim under Section 163A in view of Entry 4 (II) of the Second Schedule the maximum amount that is payable as medical expenses is only Rs.15,000/- notwithstanding the fact that bills have been produced for a higher amount. C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005 6 8. The appellant will consequently be entitled for the following amounts under Section 163 A of the Motor Vehicles Act: 1. Compensation for permanent disablement : Rs.1,92,000/- (2000x12x50/100x16) 2. Pain and suffering under Entry 4(1)A, : Rs.5,000/- injuries being grievous. 3. Medical Expenses under Entry 4(2) : Rs.15,000/- ----------------- Total Rs.2,12,000/- ========= 9. The Tribunal had directed payment of interest at the rate of 9% per annum. The insurer has not challenge the said direction in this appeal. We do not think it is necessary to interfere with the percentage of interest awarded by the Tribunal. 10. The respondents 2 and 3 are liable to pay the said amount as compensation under Section 163 A of the Motor Vehicles Act with interest. 11. In the result, a. This appeal is allowed. b. We accept the contention of the appellant that the claim must have been considered under Section 163 A of the Motor Vehicles Act. C.M.Appl.No.1439 of 2005 & M.A.C.A No.1033 OF 2005 7 c. It is found that the appellant is entitled for an amount of Rs. 2,12,000/- as compensation under Section 163A of the Motor Vehicles Act. d. Respondent No.3 admittedly being the insurer shall discharge the liability along with interest at the rate of 9% from the date of the claim to the date of deposit and proportionate costs. e. All other directions issued by the Tribunal regarding disbursement are upheld. 12. Needless to say, the amount if any deposited/paid already shall be adjusted towards the liability under this judgment. R.BASANT, JUDGE N.K.BALAKRISHNAN, JUDGE mns