IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 MACA.No. 2172 of 2005() ----------------------- OPMV.819/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT(S): APPELLANT: ------------------------ P. MOIDU, S/O. MUHAMMED HAJI T.H., THIDAL HOUSE NO.338/XII, MURIYANAVI, KANHANGAD, KASARAGOD DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S): --------------- K.N. ABDULLA, S/O. ASSAINAR KUMBOD HOUSE, DELAPADY, VIA MULLERIA, KASARAGOD. ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT & C.T. RAVIKUMAR, JJ. ------------------------------------------------- M.A.C.A. No. 2172 of 2005 ------------------------------------------------- Dated this the 19th day of March, 2009 JUDGMENT Basant,J. The respondent/owner before the Tribunal is the appellant before us. The claimant staked a claim under Sec.163A of the Motor Vehicles Act. The Tribunal awarded a total amount of Rs.1,64,000/- as compensation. Interest was directed to be paid at the rate of 9% per annum. 2. The claim was under Sec.163A of the M.V. Act. The income of the claimant was reckoned at Rs.1,500/- per mensem. He had suffered disability to the extent of 40%, it was accepted. The Tribunal proceeded to direct payment of the total amount of Rs.1,54,000/- as per the details shown below: M.A.C.A. No. 2172 of 2005 -: 2 :- 1. Compensation for loss of earning capacity payable under the 2nd Schedule (1500 x 12 x 15 x 40/100) (shown as Rs.1,18,000/- in the award) - Rs.1,08,000/- 2. Medical expenses (though a higher expenditure was incurred, the admissible claim was limited as per the 2nd Schedule - Rs.15,000/- 3. Pain and suffering (limited as per the Schedule) - Rs.5,000/- 4. Loss of earnings (basis not clear) - Rs.26,000/- ------------------- Total - Rs.1,54,000/- ======== (shown by the Tribunal as Rs.1,64,000/-) 3. The appellant herein is the registered owner of the vehicle involved in the incident. The accident and the injuries are not disputed. Though, according to the claimant, the physical disability/reduction in earning capacity was much higher, the Tribunal accepted the same only at 40%. 4. The appellant claims to be aggrieved by the impugned award. Called upon to explain the nature of the challenge which the appellant wants to mount against the impugned award, the M.A.C.A. No. 2172 of 2005 -: 3 :- learned counsel for the appellant contends that there is absolutely no material to show that the appellant is the owner of the vehicle who alone is liable under Sec.163A of the M.V. Act to satisfy the claim of the claimant. That the appellant was the registered owner of the vehicle at the relevant time is clearly established and there is no serious dispute on that aspect. Ext.A7 clearly shows that the appellant continued to be the registered owner of the vehicle. 5. But, according to the appellant, he had transferred the vehicle to another person by name A.P. Sainul Abid Thangal as per an agreement dated 8/4/96. That agreement was produced as Ext.B1. Both the claimant and the appellant herein tendered evidence as P.W.1 and R.W.1. The Tribunal took note of the fact that the appellant is the registered owner and that except the production of Ext.B1, the same has not been satisfactory established. The appellant did not obviously take any steps to get the said A.P. Sainul Abid Thangal - the alleged transferee under Ext.B1, arrayed as a party to the petition. Except the production of Ext.B1 and the self-serving testimony of R.W.1, no better evidence was made available to show that the appellant M.A.C.A. No. 2172 of 2005 -: 4 :- had ceased to be the owner of the vehicle. There is nothing to show that the transfer was duly intimated to the registering authority. In these circumstances, the Tribunal took the view that the self-serving testimony of R.W.1 – the appellant herein, and the production of Ext.B1 are not sufficient to persuade it to hold that the appellant herein has no liability under Sec.163A of the M.V. Act or that he had ceased to be the owner of the vehicle. 6. In the nature of the evidence that is available, we find the conclusion of the Tribunal to be absolutely justified. The same does not warrant any interference. The appellant has not proved Ext.B1 satisfactorily. He has not taken any steps to get the alleged real owner as a party. In these circumstances, the challenge raised on this ground must necessarily fall to the ground. 7. The learned counsel then contends that the Tribunal has committed arithmetical error while computing the compensation payable. He points out that under Clause 5 of the 2nd Schedule under Clause (b) for permanent partial disablement, the appellant will be entitled for an amount of Rs.1,08,000/- (1500 x M.A.C.A. No. 2172 of 2005 -: 5 :- 12 x 15 x 40/100) only and an amount of Rs.1,18,000/- is awarded on account of an arithmetical error. That error deserves to be revered, submits the counsel. We agree with the learned counsel for the appellant as it is evident that an inadvertent arithmetical error had crept into the computation. 8. The learned counsel for the appellant similarly contends that under the head of loss of earnings, an amount of Rs.26,000/- has been awarded after entering a positive finding that the income of the claimant was only Rs.1,500/- per mensem. The learned counsel submits that even assuming that the claimant who was an inpatient for a period of 4 months has been voluntarily unemployed for a long period of time on account of the disablement suffered by him, he is not entitled for any amount exceeding 52 weeks income as compensation. The learned counsel, in these circumstances, contends that the amount of compensation awarded could not, at any rate, have exceeded Rs.19,500/- (1500 x 52/4). But the Tribunal has awarded an amount of Rs.26,000/- as compensation. Consequently, the amount awarded under the head of loss of earning must be reduced by an amount of Rs.6,500/-, submits the M.A.C.A. No. 2172 of 2005 -: 6 :- learned counsel. We agree with the learned counsel for the appellant on this aspect also. 9. The above discussions lead us to the conclusion that the compensation awarded to the claimant must be reduced by Rs.16,500/- as per the details shown above. Consequently, it is directed that the appellant shall be entitled only for an amount of Rs.1,64,000/- minus Rs.16,500/- = Rs.1,47,500/-. In addition, interest and costs shall be paid as already directed by the Tribunal. 10. This appeal is accordingly allowed in part to the above extent. R. BASANT (Judge) C.T. RAVIKUMAR (Judge) Nan/