IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 MACA.No. 853 of 2007() ---------------------- OPMV.1385/2000 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD .................... APPELLANTS/PETITIONERS: ------------------------- SUKUMARAN ALIAS CHANDRAN, S/O. ARU, AGED 45 YEARS, RESIDING AT KORAVANKADU HOUSE, MANNATHUKAVU, THENKURUSSI, PALAKKAD. BY ADV. SRI.JACOB SEBASTIAN RESPONDENTS/ RESPONDENTS: ----------------------------------- 1. KASIM, S/O. K.S.ISMAIL, AGE NOT KNOWN, VASKAVEVEEDU, NENMARA POST, PALAKKAD. 2. M.VISWAMBARAN, S/O.MANI, AGED 24, RESIDING AT ERAMPUZHAVEEDU, VAKAVE, NENMARA POST, PALAKKAD. 3. SURESH KUMAR, S/O.RAMANKUTTY, PEON, CANARA BANK, NENMARA, PALAKKAD. 4. THE UNITED INDIA INSURANCE CO. LTD., MAIN ROAD, NENMARA, PALAKKAD. ADV. SRI.U.BALAGANGADHARAN FOR R1 & R2 SMT.M.LALITHA NAIR FOR R4 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J ----------------------- M.A.C.A.No. 853 OF 2007 --------------------------------- Dated this the 11th day of November, 2008 JUDGMENT This appeal is preferred against the award of the Motor Accident Claims Tribunal, Palakkad in O.P.(MV) No.1385/2000. The claimant sustained injuries in a road accident and his claim had been dismissed by the court below. He had moved an application under Section 163 A and 166 of the Motor Vehicles Act, claiming compensation. Ultimately he had let evidence which means that he was prepared to prosecute the case under Section 166 regarding negligence. The Tribunal found that by the scene mahazar produced the claimant himself had gone to the extreme wrong side of the road when the accident had taken place. Therefore it was held that the accident had taken place on account of the negligence of the claimant. So far as Section 163 A is concerned, since he had proceeded under Section 166 of the Motor Vehicles Act he cannot fall back under Section 163 A where a finding on negligence is rendered against him. Therefore I feel this is a case where the matter has to be proceeded under Section 166 of the Motor Vehicles Act. 2. It is true that on account of the negligence of the claimant the accident had taken place. But even in such cases the Tribunal is competent to award compensation under Section 140 of the Motor Vehicles Act for No fault liability. It is seen from the award that M.A.C.A.No. 853/2007 2 Ext. A11 is disability certificate issued by Dr. Subramanian who fixed permanent disability at 25% that is 15% for the knee fracture and 10% for the loss of memory and headache. Whether this permanent disablement will come under the provisions of permanent disablement contemplated under Section 142 of Motor Vehicles Act is a matter to be considered by permitting the parties to adduce evidence. If such permanent disablement is there, the Tribunal is free to award compensation for permanent disablement as contemplated under the provisions of the law. Therefore the M.A.C.A is disposed of confirming that the claimant has failed to prove negligence under Section 166 of the Motor Vehicles Act. For the limited purpose of finding out whether there is a permanent disablement, as contemplated under Section 142 of the Motor Vehicles Act, the matter is remitted back to the Tribunal. If he succeeds, the Tribunal is directed to give compensation which is available to him under Section 140 of the Motor Vehicles Act. The M.A.C.A. is disposed of accordingly. The parties are directed to approach before the Tribunal on 20.12.2008. M.N. KRISHNAN,JUDGE vkm