IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 1163 of 2006()
1. THE ORIENTAL INSURANCE COMPANY LIMITED,
... Petitioner
Vs
1. B.D.DAVIS @ DAISON,S/O DEVASSIKUTTY,
... Respondent
For Petitioner :SRI.MATHEWS JACOB (SR.)
For Respondent :SRI.V.RAJAGOPAL
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :25/11/2008
O R D E R
J.B.KOSHY & THOMAS P. JOSEPH, JJ.
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M.A.C.A.No.1163 of 2006
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Dated 25th November, 2008
JUDGMENT
Koshy,J.
An application under section 166 of the Motor Vehicles Act
was filed by the first respondent contending that he sustained serious
injuries in a motor accident on 21.3.1997. He was driving a car at the
time of the accident. Even though application was filed under section
166, before taking evidence, after seven years of filing the claim petition,
it was converted as an application under section 163-A of the Motor
Vehicles Act. The claimant can opt either claim under section 166 or
163-A before a decision is taken in the matter. Therefore, there is
nothing wrong in converting the application from one under section 166
to one under section 163-A. In an application filed under section 163-A,
negligence aspect need not be proved. But, section 163-A application is
maintainable only in case of death or permanent disablement. Injuries
are stated in Ext.A6 wound certificate. As a result of the injuries
whether there is any permanent disablement or not is not mentioned
anywhere. The Tribunal did not grant any compensation for permanent
disablement, but granted compensation for transport to hospital,
damage to clothing, attendant’s expense etc. which are not allowable
under section 163-A. If claims are filed under section 163-A, it should
strictly adhere to the provisions under the second schedule. The
MACA.1163/2006 2
Tribunal did not consider the same. The Tribunal should assess
whether there is any permanent disablement or not. If there is no
permanent disablement, section 163-A application will not lie. If there
is permanent disablement, compensation has to be calculated strictly
as per the second schedule and general damages as mentioned in
clause 4 of the second schedule can be granted. With regard to
medical expenses, only expenses supported by bills subject to a
maximum of Rs.15,000/= can be granted and with regard to loss of
earnings, maximum that can be granted is 52 weeks’ income as can be
seen from clause 5 of the second schedule. The Tribunal did not grant
compensation as per the second schedule. In the above
circumstances, we set aside the impugned award. However, we
remand the matter to the Tribunal for finding out whether there is any
permanent disablement or not. The Tribunal will be free to refer the
matter to a medical board to assess whether there is permanent
disablement or not. If there is any permanent disablement, the
Tribunal shall assess the compensation strictly as per the second
schedule. Parties shall appear before the Tribunal on 19th January,
2009.
J.B.KOSHY
JUDGE
THOMAS P. JOSEPH
JUDGE
tks
MACA.1163/2006 3
ORDER ON I.A.NO.1302 OF 2006 IN M.A.C.A.No.1163 OF 2006
DISMISSED
25.11.2008 SD/- J.B.KOSHY, JUDGE.
SD/- THOMAS P. JOSEPH, JUDGE.
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