IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 MACA.No. 539 of 2005() ---------------------- OPMV.166/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT/APPLICANT: ------------------------------------ D.SASI, S/O.DENNISON, BLOCK NO.75, EX-SERVICEMEN COLONY, CHALLIMUKKU, PACHA, PALODE (P.O), NEDUMANGADU, TRIVANDRUM. BY ADV. SRI.NAGARAJ NARAYANAN SRI.N.NARAYANAN NAIR SRI.NAIR AJAY KRISHNAN SRI.SAIJO HASSAN SRI.SABU SREEDHARAN SRI.VIMAL KUMAR.A.V. SRI.A.G.GIRISH KUMAR RESPONDENTS: RESPONDENTS: -------------------------------------------------- 1. K.GEE VARGHESE, S/O.DANIEL, CHERUKOLIL HOUSE, KALLUNKADAVU, PATHANAPURAM (PO), PATHANAMTHITTA DISTRICT. 2. M/S.NATIONAL INSURANCE COMPANY LIMITED, DIVISIONAL OFFICE, ST.JOSEPH'S PRESS BUILDING, VAZHUTHACADU, TRIVANDRUM-14. BY ADV. SRI.K.RAVEENDRAN - R1 SRI.ANIL KUMAR M.SIVARAMAN - R1 SRI.P.JACOB MATHEW SRI.MATHEWS JACOB (SR.) - R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 539 OF 2005 --------------------- Dated this the 9th day of June, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, Attingal, in OP(MV) No. 166/99 whereby the Tribunal has rejected the claim under section 163A. It is the case of the appellant that he had sustained a fracture of the clavicle, which resulted in callus formation, and lead to disability. He was having 4% permanent disability. Tribunal took the view that since it is not a disability coming under part II of schedule 1 of Workmen’s Compensation Act, he is not entitled to compensation for permanent disability under section 163A. A reference to S.163A is profitable at this juncture. Explanation to S.163A makes it very clear. “For the purpose of this sub-section permanent disability shall have a same meaning and extent as in the Workmen’s Compensation Act, 1923.” Workmen’s Compensation Act defines what is partial disablement as well as total disablement. Disability compensation comes under Section 4 of the Act. Part II of schedule 1 comes under 4(1) (c) (ii) and the other comes under 4 (1)(c)(i). In that section what is to be considered is proportionate loss of earning capacity (as assessed by the qualified medial practitioner permanently caused by the injury). Unfortunately in the case before me the disability certificate does not reveal MACA No.539/05 2 the loss of earning capacity at all. Secondly, the Insurance Company had raised a contention that there has been no fracture of the clavicle at all which is alleged to have caused the disability. So the first fundamental thing to be established is the fracture of the clavicle on account of the injury sustained in the accident. The second point to be noted is whether it comes under 4 (1) (c) (ii) by getting the disability certificate which assesses the loss of earning capacity. These facts have not been taken into consideration by the Tribunal, which will determine the issue under Sec.163A. Therefore, I set aside the findings of the Tribunal and remit the case back to the same Tribunal enabling the claimant herein to establish that he has sustained fracture of the clavicle and also to produce the certificate to show the loss of earning capacity as contemplated under 4 (1) (c) (ii) of the Workmen’s Compensation Act. The Insurance Company as well as the appellant is permitted to produce documentary and oral evidence in support of their respective contentions. Parties are directed to appear before the court below on 23.7.08. M.N.KRISHNAN, JUDGE vps