IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 MACA.No. 729 of 2009() ------------------------------ OPMV.886/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): 2ND RESPONDENT ------------------------ THE ORIENTAL INSURANCE CO.LTD., THIRUVANANTHAPURAM,REP.BY ITS ASSISTANT MANAGER, REGIONAL OFFICE,ERNAKULAM NORTH,KOCHI-18. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): CLAIMANT/RESPONDENT/IST RESPONDENT ------------------------------ 1. HARIKUMAR,S/O.THANKAPPAN NAIR, ELENKATTUVEEDU,ELIPPOTTUKONAM, NADOORKOLLA,KOLLAYIL VILLAGE. 2. K.S.PADMAKUMAR,280,KRISHNA BHAVAN, NADOORKOLLA,KOLLAYIL,AMARAVILA P.O. R1 BY ADV. MR.G.SUDHEER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... M.A.C.A.NO.729 OF 2009 ............................................. Dated this the 17th day of May, 2010. J U D G M E N T This is an appeal preferred against the award of the Claims Tribunal, Neyyattinkara in O.P.(MV)No.886/2003. The claimant while riding a motor bike sustained injuries in a road accident and moved an application under Section 163A for compensation. Tribunal has awarded him Rs.25,960/= and it is against that decision, the insurance company has come up in appeal. 2. The various points raised are (1) being a self accident, he is not entitled to claim compensation under Section 163 A, (2) there is no disability so as to attract Section 163 A, and (3) the driver did not have any valid driving licence. So far as the first point is concerned, a Full Bench of this Court held that such persons are entitled to, but the decision has been subsequently doubted by a Division Bench and the matter is pending consideration of a Larger Bench. Therefore, there cannot be a decision on a point at this stage. : 2 : M.A.C.A.NO.729 OF 2009 3. Point No.2: This point will clinch the issue in this case and therefore, consideration of the other materials are totally not necessary. A perusal of the award of the Tribunal would show that the claimant had sustained fracture of the tooth. Tribunal had calculated 3% disability on its own for the purpose of arriving at compensation under Section 163A of the Motor Vehicles Act. Disablement referred to there is the disablement as envisaged under the provisions of the Workmen's Compensation Act. Under the Workmen's Compensation Act, what is to be assessed is the loss of earning capacity on account of the injury sustained in the accident. Fracture of the tooth will not affect the working capacity unless it is specifically proved. Here except that, there is sustainment of fracture of tooth, no evidence worth reading is produced before the court. No disability certificate is produced and no medical evidence is adduced as well. Therefore it has to be held that the finding of the Tribunal is merely based on conjectures and surmises and it cannot be supported by any materials. So, it has to be held that the claimant has failed to prove the permanent : 3 : M.A.C.A.NO.729 OF 2009 disability as contemplated under Section 163 A. When it is so, it debars the claimant from claiming the compensation. Therefore, the Tribunal should not have granted any compensation under Section 163 A of the Motor Vehicles Act. In the light of the said finding, the claim petition fails and it has to be dismissed. In the result, the appeal is allowed and the claim petition O.P.(MV)No.886/2003 will stand dismissed. M.N. KRISHNAN, JUDGE. cl : 4 : M.A.C.A.NO.729 OF 2009