IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 MACA.No. 1486 of 2011(E) ----------------------- OPMV.306/2007 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT : PETITIONER ------------------------ P.JANARDHANAN, AGED 42 YEARS, S/O.P.P.KUNHAMBU, R/AT PULUKOOL HOUSE, KODAKKAD, OLAT P.O., HOSDURG TALUK. BY ADV. SRI.A.ARUNKUMAR RESPONDENT(S): --------------- 1. THAMBAN.T, AGED 54 YEARS, S/O.T.KUNHAMBU, THEKKUMBAD HOUSE, CHOORIKKOVVAL, KODAKKAD P.O., HOSDURG TALUK. 2. THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY, IST FLOOR PERUMAL BUILDING, PERUMBA, PAYYANNUR, KANNUR, KERALA-670 307. SHRI M.A.GEORGE, STANDING COUNSEL FOR R2 ADV. SRI.RAJAN P.KALIYATH FOR R2 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. *********************** M.A.C.A No.1486 of 2011-E ***************************** Dated this the 10th day of October, 2011 JUDGMENT BASANT, J. Claimant is the appellant. His claim under Section 163 A of the Motor Vehicles Act was dismissed by the Tribunal by the impugned award on the short ground that the annual income of the appellant exceeds Rs.40,000/-. 2. The appellant had claimed that his monthly income was Rs.6,000/- (annual income Rs.72,000/-). The Tribunal had entered a finding that the claimant's monthly income is Rs.3,500/-. Even accepting that, his annual income exceeds Rs.40,000/-. Going by the decision in Deepal Girish Bhai Soni & Ors. V. United Insurance Co. Ltd., Baroda [AIR 2004 S.C 2107], the claim under Section 163A is thus clearly not sustainable. The claim only deserves to be dismissed. 3. The learned counsel for the appellant submits that at any rate the claim must then have0 been considered under M.A.C.A No.1486 of 2011-E 2 Section 166 of the M.V Act. We find merit in that contention. The appellant's prayer that his claim must be considered under Section 166 of the M.V Act if such claim be not maintainable under Section 163A, does appear to us to be fair, reasonable and just. The appeal hence deserves to be allowed to that extent alone. We have heard the learned counsel for the appellant and the learned counsel for the 2nd respondent/insurance company. We are satisfied that this appeal can be allowed and appropriate directions can be issued. 4. In the result: a) This appeal is allowed in part; b) The finding in the impugned award that the claim is not maintainable under Section 163A is upheld; c) But the Tribunal is directed to dispose of O.P(MV) 306 of 2007 afresh in accordance with law reckoning the same as a claim under Section 166 of the M.V Act; d) The parties shall appear before the Tribunal on 01.12.2011 to continue with the proceedings. 5. Hand over a copy of this judgment to the learned counsel for the appellant straightaway. The Registry shall communicate the judgment to the Tribunal also ensuring that the M.A.C.A No.1486 of 2011-E 3 copy of the judgment reaches the Tribunal well prior to 01.12.2011. 6. We make it clear that the Tribunal must consider the entire claim afresh under Section 166 of the M.V Act uninfluenced by any observations/findings in the impugned award. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/