IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 7TH JANUARY 2010 / 17TH POUSHA 1931 MACA.No. 1476 of 2009() ----------------------------------- OPMV.335/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, NEYYATTINKARA .................... APPELLANT/2ND RESPONDENT: ---------------------------------------------- THE ORIENTAL INSURANCE COMPANY LTD THIRUVANANTHAPURAM, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18. BY MR.MATHEWS JACOB, SENIOR ADVOCATE, ADV. MR.P.JACOB MATHEW. RESPONDENTS/PETITIONER AND 1ST RESPONDENT: ---------------------------------------------------------------------------- 1. JUSTIN RAJ, S/O. MUTHAYYAN BADEL BHAVAN, CHERUVARAKONAM, VANIYACODE PARASSALA VILLAGE, THIRUVANANTHAPURAM DISTRICT. 2. ARIFA BEEVI, FEROZ MANZIL, CHANNAKARA PO, KANIYAPURAM, THIRUVANANTHAPURAM DISTRICT. BY THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 07/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA.No. 1476 of 2009 ORDER ON I.A. NO.1741/2009 IN MACA NO.1476/2009 DISMISSED. 07/01/2010. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.A.C.A. NO. 1476 OF 2009 = = = = = = = = = = = = = = = Dated this the 7th day of January, 2010. J U D G M E N T This appeal is preferred against the award of the Motor Accidents Claims Tribunal, Neyyattinkara in O.P.(MV)335/03. The claimant, while travelling in a motor car sustained injuries in a road accident. Initially he moved an application u/s 166 of M.V.Act and thereafter had amended it u/s 163A. Initially he had made a claim for Rs.8,000/- as his income but has subsequently reduced it to Rs.3,000/- which would mean that it is less than Rs.40,000/- per annum. He is at liberty to do so and therefore the finding that a petition u/s 163A is maintainable is not to be disturbed. 2. Now the prime question is regarding the compensation and its entitlement. The claimant was aged about 30 years and he had sustained a fracture on acromio clavicular joint and a nasal bone injury. In order to attract the provisions u/s 163A of the M.V.Act there must be permanent disablement. The said permanent disablement is MACA 1476 OF 2009 -:2:- relating to the permanent disability as envisaged under the Workmen's Compensation Act. Therefore it is absolutely mandatory to have materials on record to prove the permanent disablement. A Court or a Tribunal which is not an expert, on the basis of conjectures and surmises cannot find out that the person is having permanent disablement and award compensation. Suppose it is an injury covered by schedule I of the Workmen's Compensation Act then materials are available to prove the disability concerned. So far as this case is concerned admittedly there is no injury as contemplated under schedule 1. Then non schedule injuries require evidence and normally the loss of permanent disability and loss of earning capacity are matters which are to be certified by medical officers after assessing the disability of the person. Just because a person sustains a fracture on the clavicle bone one cannot jump to the conclusion of disability and fracture on a nasal bone also may not cause any permanent disablement for a person. So the Tribunal's finding is on the basis of conjectures and surmises MACA 1476 OF 2009 -:3:- and fixing the disability at 2% and awarding the compensation is without any legal back ground and therefore it cannot be accepted. When there is no possible acceptable evidence of permanent disablement S.163A would not be attracted and therefore the petition will not lie. Therefore the award under challenge is set aside and the claim petition is dismissed. It is made clear that if any amount is deposited by the insurance company let it be reimbursed to the company on appropriate application. M.N. KRISHNAN, JUDGE. ul/-