IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 MACA.No. 802 of 2003() ---------------------- OPMV.396/1998 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD .................... APPELLANT/PETITIONER: -------------------------------------- SADASHIVA SHETTY, AGED 39 YEARS, SON OF AITHAPPA SHETTY, RESIDING AT MUNIYOOR, P.O. PERDALA, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.I.V.PRAMOD RESPONDENTS/ RESPONDENTS: ------------------------- 1. K.SATHYANARAYANA, S/O.BALAN MANIYANI, KORAKKAD HOUSE, P.O. KASARAGOD, KASARAGOD. 2. K.HASSAN KUTTY, S/O. ABOOBACKER, KURUDAPPADAVU HOUSE, P.O. ADYNADKA, DK. KARNATAKA STATE. 3. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. LTD., BANK ROAD, KASARAGOD. 4. BATTU RAI, S/O. DERANNA RAI, BADOOR KERI HOUSE, P.O. BADOOR, KASARAGOD TALUK & DISTRICT. 5. THE MANAGER, THE NATIONAL INSURANCE CO. LTD., BRANCH OFFICE, M.G. ROAD, KASARAGOD. BY ADV. SRI.MATHEWS JACOB (SR.) FOR R5 SRI.ANCHAL C.VIJAYAN FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- M.A.C.A. No. 802 OF 2003 --------------------- Dated this the 26th day of June, 2008 JUDGMENT This appeal is preferred against the award passed by the Motor Accident Claims Tribunal, in OP(MV) 396/98. It is an application originally filed under section 166 of the Motor Vehicles Act but was later amended under section 163A of the Act. Unfortunately, the Tribunal found contributory negligence and also raised an issue as to who was at fault for the accident. 2. When a petition is entertained under section 163A the question of negligence is foreign to the consideration of the claimant and this court had taken the view that even if the accident is caused on account of the negligence of the person, he is entitled to file a claim under section 163A of the Act. Therefore, the finding of the question of contributory negligence needs to be vacated and I do so. 3. Then the next question is regarding the quantum of compensation. In order to attract section 163A, there must be permanent disability and that disablement is as contemplated under the provisions of the workmen’s Compensation Act. Here the disability certificate is produced showing the percentage of disability at 5%. Under section 163A for non fatal injuries there is limitation in granting the amount as follows. MACA No.802/03 2 Only a maximum of 52 weeks loss of earning can be granted in grievous injury. Pain and suffering can be granted at the rate of Rs.5,000/- and the medical expenses actually incurred or the maximum of Rs.15,000/-, whichever is lower. Disability is to be worked out as per schedule. When it is done in this case, the compensation has to be given as follows. Being a grievous injury for pain and suffering, I award a sum of Rs.5,000/-. The Tribunal found that three month’s loss of earning has to be granted , which is within the permissible limit, that is Rs.6,000/-. So far as medical expense is concerned, the bills produced are for Rs.11,892/- which I round as Rs.11,890/-. So far as disability compensation is concerned, if the income is taken at Rs.2,000/- and disability at 5% the annual loss of earning will come to Rs.1,200/- which when multiplied by 16 will come to Rs.19,200/-. When it is consolidated, the total compensation would be Rs.42,090/-. In the result, the MACA is allowed and the claimant is awarded a compensation of Rs.42,090/- with 7% interest from the date of petition till realisation and the third respondent Insurance Company is directed to deposit the amount within 60 days from today. If any amount is already deposited, that can be given credited to as well. M.N.KRISHNAN, JUDGE vps MACA No.802/03 3 MACA No.802/03 4 MACA No.802/03 5