IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 12TH AUGUST 2010 / 21ST SRAVANA 1932 MACA.No. 693 of 2010() ---------------------- OPMV.1659/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT(S): 2ND RESPONDENT: ----------------------------------------------------- THE NEW INDIA ASSURANCE COMPANY LIMITED, THIRUVANANTHAPURAM,NOW REPRESENTED BY ITS MANAGER,REGIONAL OFFICE,M.G ROAD,KOCHI-11. BY SRI.MATHEWS JACOB, SENIOR ADVOCATE, BY ADV. SRI.P.JACOB MATHEW. RESPONDENT(S): PETITIONER AND 1ST RESPONDENT: ------------------------------------------------------------------------------------ 1. APPUKUTTAN NAIR,S/O.THANKAPPAN PILLAI, AJAYAVILASOM,MARAYAMUTTOM,NEYYATTINKARA TALUK. 2. L.RAJESH,FISHERIES COLONY,POZHIYOOR, UCHAKKADA P.O,NEYYATTINKARA TALUK. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 12/08/2010 ALONG WITH MACA NO. 694 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N.KRISHNAN, J. -------------------------------------------------------- M.A.C.A.Nos.693, 694, 695, 697 OF 2010 --------------------------------------------------------- Dated this the 12th day of August, 2010. JUDGMENT These appeals are preferred against the award in O.P (MV) Nos.1659, 1661, 1934 and 1660 of 2003 of the Motor Accidents Claims Tribunal, Neyyattinkara. All these petitions were filed under Section 163A of the Motor Vehicles Act and the Tribunal has awarded compensation in all these cases even without a disability certificate. I find that Tribunal invariably in many cases resorts to this practice which in fact really needs medical evidence. It cannot be appreciated. Section 163A is a special enabling provision wherein considering the seriousness of the injury or the death that resulted on account of the accident, the legislature had dispensed with the necessity to prove negligence. However, a permanently disabled contemplated under Section 163A comes under the Workmen's Compensation Act by virtue of the explanation of Section 163 A of the Motor Vehicles Act. Therefore, the Tribunal's conclusion without any medical background cannot be accepted in these cases. 2. Secondly, it is a case where the injured were the persons M.A.C.A.Nos.693, 694, 695, 697/ 2010 2 who were travelling in a private car. The contention of the Insurance Company is that the said vehicle was only covered by an act only policy. Further, it has to be stated that it is necessary to consider the question of insurer's liability. By resorting to the word 'Not withstanding' under Section 163A of Motor Vehicles Act, the Tribunal jumps to the conclusion that the defence of no liability cannot be raised by the Insurance Company. This is directly against the decision of the Honourable Supreme Court reported in National Insurance Company Ltd. V. Swaran Singh (SC), (2004 (1) KLT 781). In paragraph 102 (ii), the Supreme Court has made it clear that “Insurer is entitled to raise defence in a claim petition filed under section 163A or 166 of the Motor Vehicles Act, 1988, interalia, in terms of Section 149(2) (a)(ii) of the said Act.” So, there is a defence available to the Insurance Company and, therefore, the finding of the Tribunal that the said defence is not available is incorrect. Therefore, the orders under challenge are set aside and the matter is remitted back to the Tribunal with a direction to consider the case afresh. Especially by first getting satisfied against the permanent disablement supported by medical evidence as contemplated under the Act and also to consider the question as M.A.C.A.Nos.693, 694, 695, 697/ 2010 3 to the Insurance Company's liability as per the policy. Since the 2nd respondent, the owner, had not chosen to appear before this Court, let notice to be taken to him after the Insurance Company appears before the said court. The Claimants are also to be given notice in the proceeding. Parties are directed to appear before Tribunal on 23.9.2010. If any amount is deposited, let the amount remain in deposit till a final decision is taken in the matter. The Insurance Company Shall take out notice. M.N.KRISHNAN, JUDGE. mns