IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 MACA.No. 25 of 2008() --------------------- OPMV.71/2004 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPELLANT/PETITIONER ----------------- A.VELAYUDHAN, S/O.APPUKUTTAN, BATHRITHA VAYALIL, NALLIYAMPADAM, PARUVASSERY P.O., VADAKKANCHERRY NO.II, VILLAGE, ALATHUR TALUK. BY ADV. SRI.C.RAGHAVAN RESPONDENT(S): RESPONDENTS -------------------- 1. P.K.G.K.THAMPURAN, S/O.THUPPAN NAMBUDIRI, SUTOG PONNEKKARA ROAD, EDAPPALLY, ERNAKULAM DISTRICT. 2. RAJESH, S/O.RAVEENDRAN NADAR, AALIYATHU HOUSE, CHUTTUPADUKARA, EDAPPALLY POST, COCHIN - 24. 3. NATIONAL INSURANCE COMPANY LTD., MYDHILI MANDIRAM, JANATHA JUNCTION, PALARIVATTOM, COCHIN - 25. BY ADV. SRI.JOE KALLIATH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON ------------------------------- M.A.C.A.No.25 of 2008 ------------------------------- Dated this the 1st October, 2009 J U D G M E N T Ramachandra Menon, J. This appeal arises from the award passed by the Motor Accidents Claims Tribunal, Palakkad, in O.P.(M.V.) No.71 of 2004, which was a claim preferred by the appellant under Section 163 A of the Motor Vehicles Act (hereinafter referred to as 'the Act' for short), seeking compensation in respect of the injuries sustained, when he was knocked by the car owned by the first respondent, on 13.10.2003 at about 9.45 a.m. 2. The sequence of events as discernible from the records shows that the appellant was riding a two-wheeler bearing Registration No.KL.9 J/9729, when a Maruti car, KL.5 J/4565, hit against the said motor cycle (TVS-50), causing injuries to the appellant which led to the claim. MACA.No.25 of 2008 2 3. It is the admitted case of the appellant/claimant that he was a retired hand and that his monthly income shown in the claim petition was only Rs.3,000/=. The evidence tendered before the Tribunal consists of oral testimony of the claimant given as PW.1 and the documentary evidence as Exts.A1 to A11. The claim was resisted on various grounds by the respondents. After analysing the facts and figures, the Tribunal arrived at a finding that there was valid Insurance coverage in respect of the vehicle as on the date of accident; that the contention raised from the part of the Insurance Company that the car was being driven without valid and effective driving licence was not substantiated from their side and hence there was no question of any violation of policy or statutory conditions; further making a specific reference in paragraph 12 of the award that, since the claim petition was preferred under Section 163 A of the Act, the claimant was entitled to have compensation only as per the structured formula prescribed under the second schedule to Section 163 A of the Act. Accordingly, various amounts were MACA.No.25 of 2008 3 awarded under the permissible heads, thus granting a total compensation of Rs.1,15,800/=, reckoning the permanent partial disability at 40%, as covered by Ext.A12. This appeal has been filed seeking for enhancement of the compensation, stating that the course pursued by the Tribunal is not correct or proper. 4. The learned counsel for the appellant submits that the claimant was having a monthly income of more than Rs.21,000/=; that as on the date of the accident, he was still in service and 'loss of earning' should have been granted, taking note of the said factual position. It is also stated that the claimant was an 'agriculturist', earning much income and in view of the serious nature of the injuries, resulting in amputation of right leg below the knee, the claimant could not pursue any agricultural operations, and hence the disability ought to have reckoned as 100% awarding appropriate compensation under this head as well. The learned counsel also placed reliance on the MACA.No.25 of 2008 4 decision of the Apex Court in Janardhan v. United India Insurance Co. Ltd. (2008 (2) KLT 995 (SC)) to sustain the claim as above. 5. With regard to the quantum of compensation payable, referring to the alleged unexpired service of the claimant as on the date of the accident, and as to the alleged loss of income by virtue of the disability, it has to be borne in mind that the claim itself was admittedly preferred under 'Section 163 A' of the Act, and as such, as rightly observed by the Tribunal, the claimant is entitled to have compensation only within the parameters, as specified under the Second Schedule and nothing more. That apart, there was no case for the claimant in the petition filed that he was having a monthly income of more than Rs.21,000/=, and obviously, the age of the claimant was shown as '58' years, i.e., having crossed the age of superannuation. Further, the income was admittedly shown only as Rs.3000/= per mensem and the appellant did MACA.No.25 of 2008 5 not choose to adduce any evidence to prove the said extent as well. If the income of the appellant was above Rs.40,000/= per annum, the claim itself could not have been pursued under Section 163 A of the Act, in view of the Law declared by the Apex Court, reported in Deepal Girishbhai Soni v. United India Insurance Co. Ltd. (2004 (2) KLT 395), holding that the benefits contemplated under Section 163 A of the Act are intended to a particular group of people in the Society, having an annual income of less than Rs.40,000/= and all other claims in respect of higher income group, have to be considered and decided as provided under Chapter XII of the Act. Admittedly, since the appellant chose to show his income as Rs.3000/= per month, the claim was entertained by the Tribunal under Section 163A of the Act, and rightly observed that the claimant was entitled to have the benefits only as per the structured formula under the 'second schedule' to Section 163 A of the Act. The said finding of the Tribunal is very much correct and sustainable and does not call for any interference. MACA.No.25 of 2008 6 6. Janardan's case cited supra, stands entirely on a different footing. That was a case filed by the Insurance Company under the Workmen's Compensation Act, and the compensation payable was worked out, as per the relevant provisions of the said Act. It was never a case involving the compensation to be worked out on the basis of specific stipulations under Section 163 A of the Act, and as such, the reliance placed on the said decision is quite wrong and misconceived, though the claimant sustained injuries while driving a tractor. The claim was filed before the Commissioner for Workmens' Compensation, exercising the option provided under Section 167 of the Motor Vehicles Act, which was considered and decided adhering to the specific provisions under the Workmen's Compensation Act. As such, the said decision does not have any application to the case in hand. 7. It is relevant to note that, but for examining the claimant as PW.1, absolutely no reliable evidence was MACA.No.25 of 2008 7 adduced before the Tribunal to show the monthly income of the claimant, after his retirement. It is also specifically taken note by Tribunal that the claimant, after retirement, was enjoying the pension. There is no case for the appellant that, there is any deduction with regard to the monthly pension payable to him, by virtue of the injury. 8. After considering the quantum payable under the permissible heads, the Tribunal awarded various amounts, including a sum of Rs.5000/= towards 'pain and suffering' as provided under second schedule to Section 163 A of the Act, and 'loss of earning' in respect of two months, treating the multiplicant as Rs.2000/= per month. The disability as certified in Ext.A12 at 40% (by the medical board) has been reckoned in toto and compensation for permanent disability has been worked out at Rs.76,800/= adopting a multiplier of '8' considering the age of the appellant, as provided under Second Schedule to Section 163 A of the Act. MACA.No.25 of 2008 8 9. Coming to the medical expenses, the Tribunal has granted a total sum of Rs.30,000/= giving due weight to the medical bills produced and also taking note of the admission made by the claimant as PW.1 that he has got reimbursement of the medical expenses in respect of the treatment till 31.12.2003. In fact, Rs.30,000/= was awarded as the balance medical treatment expenses, after declining to accept the contention raised by the Insurance Company that the maximum amount payable towards this head under Section 163A of the Act was only Rs.15,000/=. The logic and reasoning given by the Tribunal for awarding Rs.30,000/= as medical expenses, though it appears to be a fact proved by virtue of the medical bills, does not appear to be correct or sustainable, as the Law, particularly, Second Schedule to Section 163 A of the Act, never permits to award medical expenses over and above Rs.15,000/=. However, we do not intend to reduce the amount awarded under this head, for the obvious reason that no challenge has been made in this regard by the Insurance Company. MACA.No.25 of 2008 9 Considering the totality of the facts and circumstances, we find that no interference is called for. Accordingly, this appeal is dismissed. P.R.RAMAN, JUDGE P.R.RAMACHANDRA MENON, JUDGE. nj.