IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 6TH JANUARY 2010 / 16TH POUSHA 1931 MACA.No. 2821 of 2008() ------------------------------------- OPMV.1444/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM .................... APPELLANT(S): 2ND RESPONDENT ------------------------ NATIONAL INSURANCE CO.LTD.KOTTAYAM BY ADV. MR.RAJAN P.KALIYATH RESPONDENT(S): PETITIONER AND R1 & R3 ------------------------- 1. SIVANKUTTY @ SIVAN, THAIPARAMBIL HOUSE PERUMTHURUTHY POST, KALLARA. 2. SUPRABHA SANTHOSH, KUDIYATH HOUSE ERAVIMANGALAM POST, MANJOOR. 3. SHAJI M.C., CHIRAYIL HOUSE, EDIKUZHI BHAGAM, ERAVIMANGALAM, MANJOOR. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON I.A. NO.3277/2008 IN MACA. NO.2821/2008 DISMISSED 06/01/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.S. TO JUDGE tss M.N.KRISHNAN, J ===================== MACA No.2821 OF 2008 ===================== Dated this the 6th day of January 2010 JUDGMENT This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Kottayam in O.P.(MV)No.1444 of 2005. The claimant, a passenger in a private jeep sustained injuries in a road accident and claimed a total compensation of Rs.2 lakhs. The petition was filed under Section 163A of the Motor Vehicles Act. The income was claimed at Rs.235/- per day. But the Tribunal found it at Rs.18,000/- per annum and awarded compensation. The court below also accepted 13% disability and calculated compensation. In appeal, besides challenging these two, the insurance company has also challenged the question regarding its liability to pay for a passenger travelling in a private vehicle. The copy of the policy is produced along with the appeal as per I.A.No.3278/2008. So far as the first point is concerned, when the amount claimed in the petition is more than Rs.40,000/-, whether the petition is not maintainable has to be considered. A Division Bench of this Court had an opportunity to consider a case of similar nature in United India Insurance Co.Ltd. v. Rukiya(2007(1) ACJ MACA 2821/2008 -:2:- 698). It was a case where the wife claimed income of the deceased husband at Rs.10,000/- per mensem. If accepted, would be certainly above Rs.40,000/- which will take away the jurisdiction of the Tribunal under Section 163A of the Act. But the Tribunal found the income at Rs.36,000/- and awarded compensation. When the said matter was considered by this Court this Court held that since the income is found to be Rs.36,000/- by the Tribunal, the application is maintainable. So, in the light of the ruling of a Division Bench of this Court and extending the principles laid down therein, the petition cannot be thrown out on the technical ground for the reason that the Tribunal has fixed the income at Rs.18,000/-. 2.Now the next question is regarding the compensation. I am afraid that the Tribunal had not approached Section 163A of the Act in the proper perspective. On production of a disability certificate the Tribunals calculate the compensation and award the same in favour of the claimants. Section 163A of the Act is a special provision as to payment of compensation on structured formula basis. When there is death or permanent disablement due to the accident arising out of the use of the motor vehicle the compensation has to be paid as per the second schedule to the Act. It has to be remembered that there is an Explanation attached to Section 163A wherein it is very clearly stated that for the purpose of this sub section MACA 2821/2008 -:3:- permanent disability shall have the same meaning and extend as in the Workmen's Compensation Act. So, it is the duty of the court to find out whether the disability sustained by a claimant would come within the 4 corners of permanent disability as envisaged under the Workmen's Compensation Act. It is thereafter structured formula has to be applied and compensation has to be calculated. On a mere production of a disability certificate the court cannot jump into a conclusion on that regard. Under the Workmen's Compensation Act, we have the scheduled injuries and non- scheduled injuries and different methodology is adopted and the main concern is regarding the loss of earning capacity and it is in that view the matter has to be looked into under that Act. That is not done in this case. Therefore the award requires interference. 3. Again though belatedly, the insurance company had produced a document contending for the position that the claimant being a passenger in a private jeep covered only by an Act only policy or statutory policy is not liable to be indemnified under the contract of insurance. Such defence is available to the insurance company as has been held in National Insurance Co.Ltd. v. Swaran Singh(2004(1) KLT 781(SC). So that also has to be considered. Therefore from the foregoing decision, the award under challenge is MACA 2821/2008 -:4:- set aside and the matter is remitted back to the Tribunal for consideration of the materials mentioned above for which the parties be permitted to adduce both oral and documentary evidence in support of their respective contentions and then the matter be disposed of in accordance with law. Parties are directed to appear before the Tribunal on 10.2.2010. The insurance company is directed to take out notice to the claimant and the owner after it enters appearance so that the matter can be disposed of within their presence. M.N.KRISHNAN, JUDGE Cdp/-