IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 MACA.No. 856 of 2005() ---------------------------------- OP(MV).1832/1999 of MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL .................... APPELLANT(S): APPELLANT/PETITIONER. -------------------------------------------------------------- P.BINU, S/O.PRABHA RAJAN, PUTHENVEETTIL, CHERIYAZHEEKKAL P.O. KARUNAGAPPALLY, KOLLAM. BY ADV. SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER RESPONDENT(S): RESPONDENTS. --------------------------------------------------- 1. S.SANTHOSH, S/O.SHANMUGHAM, MUNDAKKATTIL HOUSE, CHERIYAZHEEKKAL, ALAPPADU, KARUNAGAPPALLY, KOLLAM. 2. THE ORIENTAL INSURANCE CO.LTD., REP. BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, THIRUVANANTHAPURAM. R2 BY ADV. SRI.VPK.PANICKER THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts R.BASANT & N.K.BALAKRISHNAN, JJ. ----------------------------------------- M.A.C.A No.856 OF 2005 ---------------------------------------- Dated this the 6th day of July, 2011 JUDGMENT BASANT,J. The claimant is the appellant. The claim lodged by him described to be one under Sections 163 A and 140 of the Motor Vehicles Act dismissed by the Tribunal by the impugned award holding that the appellant/claimant has not succeeded in proving that he has suffered any permanent disability as defined under the Workmen's Compensation Act. 2. The learned counsel for the appellant submits that he does not now want to stake any claim under Section 163A of the Motor Vehicles Act. He shall be satisfied if his claim is considered under Section 140 of the Motor Vehicles Act. 3. The learned counsel for the appellant submits that he is taking this stand in view of the indisputable circumstance that he had claimed that he was earning a monthly income of Rs.4,500/-. If that be so, his total annual income would exceed at Rs.40,000/-. Consequently, following the dictum in Deepal Girishbhai Soni v. United India Insurance Co.Ltd. (2004 (2) KLT 395 (SC)) M.A.C.A No.856 OF 2005 2 he cannot approach the Tribunal with a claim under Section 163 A of the Motor Vehicles Act. Accepting that fact, the learned counsel for the appellant submits that his claim may be considered only under section 140 of the Motor Vehicles Act. 4. There cannot possibly be a dispute that an independent claim under Section 140 of the Motor Vehicles Act would be maintainable. The stipulations in Chapter 10, particularly Section 144 of the Motor Vehicles Act, clearly show that the provisions of Chapter 10 shall effect notwithstanding anything contained any other provisions or any other law for the time being in force. Section 165 of the motor Vehicles Act further shows that a claim under Section 140 and under Section 163 A must also be reckoned as claims or compensation falling within the purview of 165 of the Motor Vehicles Act. We reckon the claim as one only under Section 140 of the Motor Vehicles Act. 5. According to the learned counsel for the appellant/claimant, claim is only under Section 140 of the Motor Vehicles Act. According to him, he had suffered permanent disablement as defined under Section 142 of Motor Vehicles Act. Section 142 of the Motor Vehicles Act defines the expression M.A.C.A No.856 OF 2005 3 “permanent disablement” for the purpose of Chapter 10 of the Motor Vehicles Act. It reads as follows: “142. Permanent disablement.- For the purposes of this Chapter, permanent disablement of a person shall be deemed to have resulted from an accident of the nature referred to in sub-section (1) of section 140 if such person has suffered by reason of the accident, any injury or injuries involving:- (a) permanent privation of the sight of either eye or the hearing of either ear, or privation of any member or joint; or (b) destruction or permanent impairing of the powers of any member or joint; or (c) Permanent disfiguration of the head or face.” 6. According to the petitioner, he had suffered permanent disablement. He relies on Exts.A7 and A8 certificates issued by the Medical Officers in support of this contention. Ext.A8 disability certificate purportedly issued for the purpose of a workmen's compensation case states that the appellant suffered permanent partial disability to the tune of 10%. 7. It is stated therein that the appellant had suffered fracture head of femur with posterior dislocation right and fracture upper end of Tibia right. He was treated with CMR and lower Femoral traction and hip spica was given on 27.2.1997. It is M.A.C.A No.856 OF 2005 4 further reported that he has limitation of terminal 30 degree flexion of right knee with secondary osteoarthrosis of right knee. He has avascular neurosis of Femoral head right with post traumatic arthritis of right hip. The extent of permanent partial disability assessed is 10%. As per Section 142 (b) of the Motor Vehicles Act permanent disablement includes destruction or permanent impairing of the powers of any member or joint. Ext.A8, the relevant assertions in which we extracted above, plainly reveals that appellant suffered permanent impairing of powers of member/joint. He has hence suffered permanent disability under section 142 of Motor Vehicles Act. 8. Inasmuch as the appellant concedes that the claim need not be considered under Section 163A of the Motor Vehicles Act, it is not necessary for us to delve deeper into the nuances of Section 163A of the Motor Vehicles Act, but we take note that the Explanation to 163A stipulates that for Section 163A “permanent disability shall have the same meaning and extent as in the Workmen's Compensation Act.” Two interesting aspects arise there from. The body of Section 163A(1) does not at all use the expression “permanent disability”. Secondly the Workmen's M.A.C.A No.856 OF 2005 5 Compensation Act significantly does not define permanent disability even though we have definition of the expressions total disablement and partial disablement in that Act. At any rate, we do not think it necessary to go into that controversy in any greater detail now. Suffice if to say that we are not considering the question whether the certificate issued answers the definition of permanent disablement under Section 163 A of Motor Vehicles Act. 9. The second respondent insurer has entered appearance. Contention of the counsel for the appellant that the liability in respect of the driver of a vehicle is covered by the policy of insurance and that the owners liability to satisfy the claim under Section 140 of the Motor Vehicles Act has to be taken over by the Insurance company under the policy in question is accepted . Therefore, it is not necessary to delve deeper into that aspect of the matter also. Admittedly, the liability under Section 140 of the Motor Vehicles Act (and for that purpose liability under Section 166 of the Motor Vehicles Act) in respect of the driver is admittedly covered under the policy of insurance. Extra premium has admittedly been collected to cover such liability of the driver M.A.C.A No.856 OF 2005 6 of the vehicle. 10. It follows, in these circumstances, that the appellant is entitled for compensation under Section 140 of the Motor Vehicles act-he having suffered permanent disability as defined under Section 142 of the Motor Vehicles Act. Under Section 140 of the Motor Vehicles Act the amount payable to the appellant is Rs.25,000/-. Needless to say, the said amount will have to be paid along with 8% interest per annum from the date of the claim petition to the date of payment along with costs including advocate's fee of Rs.1,000/-. In the result: a) This appeal is allowed. b) The impugned order is set aside. c) The second respondent is directed to pay an amount of Rs.25,000/- (Rupees twenty five thousand only) along with interest at the rate of 8% per annum from the date of claim to the date of payment and costs (including Advocates fee Rs.1,000/-) to the respondent within a period of 60 days. d) Cheque for the said amount in the name of the M.A.C.A No.856 OF 2005 7 claimant shall be produced before the Tribunal by the second respondent and the same shall be handed over to the claimant in accordance with law. R.BASANT, JUDGE N.K.BALAKRISHNAN, JUDGE mns