IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28937 of 2004(T)
1. SUNIL, S/O. NAGAPPAN, PAZHANI HOUSE,
... Petitioner
Vs
1. K. SHAMSUDHEEN, 541, EDAYAR STREET,
... Respondent
2. UMMAR, S/O. MOHAMMAD, CHUNGONATH HOUSE,
3. THE NEW INDIA ASSURANCE CO.LTD.,
4. C.K. PRABHAKARAN, S/O. KUNJAPPAN,
5. JOHNYU. A.P., ARIMBOOR HOUSE,
6. NEW INDIA ASSURANCE CO.LTD.,
For Petitioner :SRI.P.V.CHANDRA MOHAN
For Respondent :SRI.A.C.DEVY
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :25/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J
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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