IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 25TH FEBRUARY 2010 / 6TH PHALGUNA 1931 WP(C).No. 28937 of 2004(T) -------------------------------------- PETITIONER(S): ----------------------- SUNIL, S/O. NAGAPPAN, PAZHANI HOUSE, MAILIPPADAM, CHEMBUKAVU P.O., THRISSUR. BY ADV.MR.P.V.CHANDRA MOHAN RESPONDENT(S): ------------------------- 1. K. SHAMSUDHEEN, 541, EDAYAR STREET, VELLINI NAGAR, KOVIL STREET, COIMBATORE. 2. UMMAR, S/O. MOHAMMAD, CHUNGONATH HOUSE, VETTIKKATTIRI, NEDUMPURA, THRISSUR DISTRICT. 3. THE NEW INDIA ASSURANCE CO.LTD., 389-391, BRANCH OFFICE, CROSS CUT ROAD, GANDHIPURAM, COIMBATORE. 4. C.K. PRABHAKARAN, S/O. KUNJAPPAN, CHILLIKKATTIL HOUSE, CHEMBUKAVU, THRISSUR. 5. JOHNY. A.P., ARIMBOOR HOUSE, CHEROOR, THRISSUR. 6. NEW INDIA ASSURANCE CO.LTD., THRISSUR. R2 BY ADV. MR.JIJO PAUL R3 & R6 BY ADV.MR.A.C.DEVY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.28937/2004 APPENDIX PETITIONER'S EXHIBITS P1(a) :- COPY OF THE AMENDMENT APPLICATION AND THE AFFIDAVIT. P2:- COPY OF THE ORDER REJECTING AMENDMENT. TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J ------------------------------------- W.P.C No.28937 OF 2004 -------------------------------- Dated this the 25th day of February 2010 ORDER Writ petition is filed by the claimant in an application for compensation pending on the file of the Motor Accidents Claims Tribunal, Thrissur. The application was filed to seek compensation for the injury sustained by him in a motor accident. That application was initially filed under Section 166 of the MV Act 1988 as amended by Act 54 of 1994 claiming a sum of Rs.1,78,000/-. Later, he moved an application for amending the claim as under Section 163A of the MV Act to get compensation under the structured formula. Claimant, a painter, in his application has shown his income as Rs.3,600/- per month. After the amendment of the petition as one under Section 163A of the MV act, the claimant moved an application for correcting his annual income limiting it to Rs.40,000/-. That amendment was opposed by the respondent 3 and 6. The insurance company contending that the application as amended, under Section 163A showing an income, as stated earlier, above Rs.40,000/-, was not maintainable, and so much so, the proposed amendment is not allowable. The tribunal raised an issue as to whether the amended O.Pis maintainable. In answering that issue, the tribunal has reached the conclusion that the application amended W.P.C No.28937 OF 2004 Page numbers as under Section 163A of the MV act in view of the annual income of the claimant stated as above Rs.40,000/- is not maintainable. The claimant was directed to amend the application again as coming under Section 166 of the MV act. Ext.P2 is that order. Challenge in the writ petition is against Ext.P2 order so passed by the Tribunal. 2. I heard the counsel on both sides. Claimant is a painter who has no fixed income and his income depends on the wages derived from his vocation from time to time is the submission of his counsel. It is submitted that no prejudice or hardship will be caused to any of the parties in permitting the claimant to prosecute his claim as under Section 163A of the MV act and that would further enable the claimant to get the compensation under the structured formula. On the other hand, the learned counsel appearing for the respondent, insurance company, submitted that structured formula covered by the schedule which covers awarding of compensation under Section 163A of the MV act is applicable only in the case of socially weaker sections whose annual income is below Rs.40,000/-. As the claimant on his own version is shown to be a person getting income much more than the sum fixed as the outer limit in the second schedule, his claim petition under Section 163A is not maintainable, submits the counsel. W.P.C No.28937 OF 2004 Page numbers 3. I have considered the submissions made by the counsel on both sides and perused Ext.P2 order passed by the Tribunal. The Apex Court in "Oriental Insurance Company v Hansrajbhai" (2001(2) KLT 235(SC) has held that the benefit covered by Section 163A of the MV Act to claim compensation under the structured formula covered by second schedule can be availed by restricting the claim of income below the highest slab, ie, Rs.40,000/- stated in the schedule. That decision indicates that even in a case where the claimant gets a higher annual income of Rs.40,000/-, limiting his income below the highest slab under the second schedule, he can canvass his claim under Section 163A of the MV Act. In "Deepal Girishbhai Soni v United India Insurance Company Ltd." (2004(2) KLT 395 (SC)) rendered by three judges bench, the apex court considering the aforesaid decision has held thus: "We do not agree that the findings in Kodala(Supra) that if a person invokes provision of Section 163A, the annual income of Rs.40,000/- per annual shall be treated as a cap. In our opinion, the proceeding under Section 163A being a social security provision, providing for a distinct scheme, only those whose annual income is upto Rs.40,000/- take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act". W.P.C No.28937 OF 2004 Page numbers 4. Since the latter decision had been rendered by a larger bench and that too after referring to the previous decision, needless to state that decision has to be followed. The law laid by the apex court clearly indicate that only those whose annual income is upto Rs.40,000/- alone can invoke the provisions of Section 163A of the Act to claim compensation under the structured formula covered by the second schedule. In the present case the petitioner had shown his income as Rs.3,600/- per month which on calculation on annual basis exceeds Rs.40,000/-, the highest slab in the second schedule. But he has sought for limiting his income to Rs.40,000/- per annum to bring his application within Section 163A of the MV Act. The learned counsel for the petitioner submits that his income is much less than Rs.40,000/- per annum from his vocation as a painter. I find no reason to doubt the submission of the counsel. As a painter it is not possible to hold that the claimant was having regular income. His income, it can be reasonably assumed, depended as and when he got painting works. In the circumstance I find force in the submission of the counsel that when the application was moved to claim compensation after sustaining injuries in a motor vehicle accident his income was less than Rs.40,000/- per annum. The claimant shall be given an opportunity by the Tribunal to correct his annual income which was shown in his application as W.P.C No.28937 OF 2004 Page numbers Rs.3,600/- per month. In case the petitioner files an application for correcting his annual income, that has to be given consideration and appropriate orders to be passed expeditiously by the Tribunal taking note that the petition has been pending on its file for the last several years. It has to be noted that his petition was presented prior to the decisions rendered by the apex court referred to above explaining the scope and ambit of the second schedule with respect to annual income covered thereunder in presenting of an application under Section 163A of the MV Act. Mere fact that the claimant had shown in the application his monthly income as Rs.3,600/- earlier should not be given much significance to deprive him the benefit of agitating his claim under Section 163A of the MV Act if he seeks for an amendment to reduce his income supported by an affidavit that he is getting only an annual income of less than Rs.40,000/-. Ext.P2 order passed by the court will not stand in the way of entertaining a fresh application filed by the claimant and if any such application is filed, the Tribunal shall pass appropriate orders on such application within three weeks, but, with notice to the respondents. Parties are directed to appear before the Tribunal on 25/03/2010. Sd/- S.S.SATHEESACHANDRAN //TRUE COPY// JUDGE vdv P.A TO JUDGE