IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 MFA.No. 966 of 2001() ------------------------------- OPMV.549/1994 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KALPETTA ................... APPELLANT- PETITIONER: ---------------------------------- HARILAL G. NAIR, AGED 37 YEARS, S/O. T.M. GOPALAKRISHNAN NAIR POLICE CONSTABLE, MEPPADI POLICE STATION, VYTHIRI TALUK, WAYANAD DISTRICT. BY ADV. SRI.S.M.PRASANTH RESPONDENTS - RESPONDENTS: -------------------------------------------- 1. SAIDU, AGED 45 YEARS, S/O. ALI, IRAKKATH HOUSE, ERUMAKKOLLY, MEPPADI POST (DRIVER OF THE JEEP NO.CAQ 1117, DRIVING LICENCE NO. NOT KNOWN. 2. MANAGING DIRECTOR, M/S.WAYANAD ESTATES AND INDUSTRIES LTD., 34, MAYOR VISWANATHA RAO ROAD, NADHAVANAGAR, BANGALORE (OWNER OF THE JEEP CAQ 1117) DELETED. 3. NEW INDIA ASSURANCE COMPANY, KALPETTA, (POLAICY NO.317606 0454704) THE 2ND RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 18.1.2008 IN I.A. NO.102/08 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL SRI.P.K.RAMKUMAR SRI.V.P.YELDO THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = M.F.A. NO.966 OF 2001 = = = = = = = = = = = = = = = = = = = Dated this the 13th day of February, 2008 J U D G M E N T -------------------- Claimant in O.P(MV) No.549 of 1994 on the file of the Motor Accidents Claims Tribunal, Wayanad, is the appellant. Appeal is filed challenging the award passed by the Tribunal by which the appellant was found entitled to a compensation of Rs.5,350/-. 2. Appellant met with an accident on 31.5.1994. He filed the Original Petition claiming compensation impleading the owner, driver and Insurer of the offending vehicle. Appellant also filed a petition under Section 140 of the Motor Vehicles Act claiming interim award. Tribunal, after considering the nature of the injuries sustained by the appellant, found that the appellant sustained permanent disablement which will come under Section 142 of the Act and passed an award under Section 140 of the Act. Insurer did not challenge that award. It has become final and conclusive. When the matter came up for final hearing, Tribunal took a M.F.A. NO.966 OF 2001 -: 2 :- view that the appellant failed to prove the disability certificate issued by the doctor by examining him. Hence finding that the appellant was not having any disability, Tribunal awarded Rs.5,350/- as compensation. Challenging that award, this appeal is filed. 3. Exhibit A4 is the wound certificate produced by the appellant. It shows that appellant sustained fracture scapula left and other fleshy injuries. Appellant also produced a disability certificate which shows that he was having a disability of 5%. Tribunal at one stage accepted those two documents and relying on the same interim award was passed. So the subsequent finding of the Tribunal that appellant did not produce any disability certificate is unsustainable and liable to be set aside. The award passed by the Tribunal can be modified by enhancing the compensation to Rs.25,000/-. Even assuming that the appellant is entitled to get only an amount of Rs.5,350/- under Section 166 of the Act, the Tribunal ought not have allowed the Insurer to recover the excess amount awarded under Section 140 of the Act in view of the provisions contained in Section 141(3)(b) of the Act. So M.F.A. NO.966 OF 2001 -: 3 :- that part of the award is to be set aside. 4. In the result, the appeal is allowed. Compensation awarded by the Tribunal is enhanced to Rs.25,000/-. It is ordered that the appellant is not liable to refund any amount which he had already received in pursuance of the interim award. The direction in the award under challenge to the extent of allowing the Insurer to reimburse the excess amount is hereby vacated. Civil Miscellaneous Petition No.7322 of 2001 shall stand dismissed. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== M.F.A. NO. 966 OF 2001 ===================== J U D G M E N T ------------------------------------------ 13TH FEBRUARY, 2008