IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 MACA.No. 1163 of 2006() ----------------------- OPMV.3724/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/2ND RESPONDENT ---------------------------------------------- THE ORIENTAL INSURANCE COMPANY LIMITED, ANGAMALY NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY ADV. SRI.MATHEWS JACOB (SR.) SRI.JACOB MATHEW P. RESPONDENT/PETITIONER --------------------------------------- B.D.DAVIS @ DAISON,S/O DEVASSIKUTTY, NOW RESIDING AT THELAPPILLY HOUSE, HOUSE NO.1104,L.F.CHURCH ROAD, KALOOR, KOCHI-682 017. ADV. SRI.V.RAJAGOPAL FOR R1 SRI.P.T.ANTONY FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 25/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ J.B.KOSHY & THOMAS P. JOSEPH, JJ. -------------------------------------- M.A.C.A.No.1163 of 2006 ------------------------------------- Dated 25th November, 2008 JUDGMENT Koshy,J . An application under section 166 of the Motor Vehicles Act was filed by the first respondent contending that he sustained serious injuries in a motor accident on 21.3.1997. He was driving a car at the time of the accident. Even though application was filed under section 166, before taking evidence, after seven years of filing the claim petition, it was converted as an application under section 163-A of the Motor Vehicles Act. The claimant can opt either claim under section 166 or 163-A before a decision is taken in the matter. Therefore, there is nothing wrong in converting the application from one under section 166 to one under section 163-A. In an application filed under section 163-A, negligence aspect need not be proved. But, section 163-A application is maintainable only in case of death or permanent disablement. Injuries are stated in Ext.A6 wound certificate. As a result of the injuries whether there is any permanent disablement or not is not mentioned anywhere. The Tribunal did not grant any compensation for permanent disablement, but granted compensation for transport to hospital, damage to clothing, attendant's expense etc. which are not allowable under section 163-A. If claims are filed under section 163-A, it should strictly adhere to the provisions under the second schedule. The MACA.1163/2006 2 Tribunal did not consider the same. The Tribunal should assess whether there is any permanent disablement or not. If there is no permanent disablement, section 163-A application will not lie. If there is permanent disablement, compensation has to be calculated strictly as per the second schedule and general damages as mentioned in clause 4 of the second schedule can be granted. With regard to medical expenses, only expenses supported by bills subject to a maximum of Rs.15,000/= can be granted and with regard to loss of earnings, maximum that can be granted is 52 weeks' income as can be seen from clause 5 of the second schedule. The Tribunal did not grant compensation as per the second schedule. In the above circumstances, we set aside the impugned award. However, we remand the matter to the Tribunal for finding out whether there is any permanent disablement or not. The Tribunal will be free to refer the matter to a medical board to assess whether there is permanent disablement or not. If there is any permanent disablement, the Tribunal shall assess the compensation strictly as per the second schedule. Parties shall appear before the Tribunal on 19th January, 2009. J.B.KOSHY JUDGE THOMAS P. JOSEPH JUDGE tks MACA.1163/2006 3 ORDER ON I.A.NO.1302 OF 2006 IN M.A.C.A.No.1163 OF 2006 DISMISSED 25.11.2008 SD/- J.B.KOSHY, JUDGE. SD/- THOMAS P. JOSEPH, JUDGE. // TRUE COPY //