The New India Assurance Company … vs Christudas on 27 January, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 2267 of 2009()


1. THE NEW INDIA ASSURANCE COMPANY LTD.,
                      ...  Petitioner

                        Vs



1. CHRISTUDAS, S/O.KUTTAPPAN,
                       ...       Respondent

2. ANILKUMAR, S/O.GOMATHY,

                For Petitioner  :SRI.MATHEWS JACOB (SR.)

                For Respondent  :SRI.R.T.PRADEEP

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :27/01/2010

 O R D E R
                     M.N. KRISHNAN, J.
                  ...........................................
                  M.A.C.A.No.2267 OF 2009
                 .............................................
            Dated this the 27th day of January, 2010.

                        J U D G M E N T

This is an appeal preferred against the award of the

Claims Tribunal, Neyyattinkara in OP(MV)No.1893/2003. A

man, who had sustained some injuries over the chin and

fracture of the two incisor teeth, had moved an application

for compensation under Section 163 A of the Motor Vehicles

Act. It is true that question of negligence pales in to

insignificance. But when it is a claim made under that

section in order to enable a person to get compensation

either it must have resulted in death or permanent

disablement and explanation to Section 163 A very clearly

speaks that permanent disability shall have some meaning

and extent as in the Workmen’s Compensation Act, 1923.

Section 2(l) of Workmen’s Compensation Act deals with total

disablement. Total disablement means such disablement,

whether of a temporary or permanent nature, as incapacitates

a workman for all work which he was capable of performing

at the time of the accident resulting in such disablement.

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So, it is the type of disablement that is expected under the

provisions of the Workmen’s Compensation Act. Section 2(g)

deals with partial disablement relates to affecting of the

working capacity of the individual. Here is a case where the

claimant has sustained fracture of two incisors. Even when

there is loss of an incisor, this Court considering the

question under Section 140 of the Motor Vehicles Act in the

decision reported in United India Insurance Co. Ltd. v.

Thomas (200 (1) KLT 516), it will not amount to permanent

disability . Therefore fracture of a tooth will not in any way

affect the working capacity of a person so as to attract

compensation under Section 163 A.

2. The learned counsel very strongly contends before

me that disability is there on account of the recurrence

attack of headache and vertigo. The learned counsel in

fairness had given a copy of the disability certificate and I

am surprised to see that the doctor just on examination

mentioned recurrent attack of headache and vertigo. No

radiological examination is done. Nothing is there to

establish this and not even a scrap of paper is produced to

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M.A.C.A.No.2267 OF 2009

show the follow up treatment. The doctor is also examined

in this case. Just because a disability certificate is produced

the Tribunal shall not ipso facto jump to the conclusion

regarding the correctness of the same especially when the

injury sustained is only fracture of the two incisor and

nothing else.

Therefore I find that the award passed by the Tribunal

under Sections 163 A is quite unwarranted and it requires

interference. The appeal is allowed and the claim petition is

dismissed. No costs. If any amount is deposited by the

insurance company let it be reimbursed to the insurance

company on appropriate application.

M.N. KRISHNAN, JUDGE

cl

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