M.A.C.A.No. 1109 of 2004 (D) / OP(MV) No.1120/1996

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 M.A.C.A.No. 1109 of 2004 (D) ---------------------------------------OP(MV) NO..1120/1996 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, IRINJALAKUDA ........................... APPELLANT/10TH RESPONDENT: ----------------------------------------------UNITED INDIA INSURANCE COMPANY LTD., REP. BY ITS MANAGER, T.P.CELL, VETTUKATTIL BUILDINGS, KOCHI-16. BY ADV. SRI.P.R.RAMACHANDRA MENON ## RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 9 RESPECTIVELY: ---------------------------------------------------------------------------------------------------- 1. MURALI @ MURALIDHARAN, S/O.VISWAMBHARAN, KALACHANDRAVEETTIL, NEENDOOR, VADAKKEKKARA, N.PARAVUR. 2. SASIDHARAN NAIR, S/O.NANDINIKUTTY AMMA, KALAPURAKKAL HOUSE, P.O. EZHIKKARA, N.PARAVUR. 3. THE MANAGING DIRECTOR, K.S.R.T.C., THIRUVANANTHAPURAM. 4. A.K.SULAIMAN, S/O. KOCHUNNI, KALLUDAMAPARAMBU VEEDU, KUNNUKARA, AYROOR VILLAGE, N.PARAVUR. 5. VASANTHI, W/O. LATE VASUDEVAN, PANAMBIL HOUSE, PATTANAM. P.O. VADAKKEKKARA, N.PARAVUR. 6. DIVYA, D/O. LATE VASUDEVAN, REP. BY HER GUARDIAN MOTHER, VASANTHI -DO- -DO-. 7. DIBIN, S/O. LATE VASUDEVAN, REP. BY HIS GUARDIAN MOTHER, VASANTHI -DO- -DO-. 8. NITHIN, S/O. LATE VASUDEVAN, REP. BY HIS GUARDIAN MOTHER, VASANTHI -DO- -DO-. 9. SUBRAMANIAN, FATHER OF LATE VASUDEVAN, -DO- -DO-. 10. KAUSALYA, MOTHER OF LATE VASUDEVAN, -DO- -DO-. M.A.C.A.No. 1109 /2004 (D) ADV. SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC - R3 SRI.T.H.ABDUL AZEEZ - R1 SRI.G.D.PANICKER - R.5 SMT.JEENA JOSEPH - R.5 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.No. 1109/ 2004 ORDER ON I.A. NO. 2482 OF 2004 IN M.A.C.A NO.1109 OF 2004 DISMISSED SD/29/10/2008 M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE scm ## **M.N. KRISHNAN, J** ## **-----------------------** ## **M.A.C.A.No. 1109 OF 2004** ## **---------------------------------** Dated this the 29[th] day of October, 2008 ## **JUDGMENT** This appeal is preferred against the award of the Motor Accident Claims Tribunal, Irinjalakuda in O.P.(MV) No. 1120/1996. O.P. 1120/1996 was filed under Section 166 of the Motor Vehicles Act. The Tribunal after consideration of the material found that the accident had taken place due to the negligence of the claimant and therefore came to the conclusion that he is not entitled to any compensation under Section 166 of the Motor Vehicles Act. But the Tribunal held that he is entitled to compensate under Section 163 (A) of the Motor Vehicles Act. 2. The learned Tribunal had relied on the decision of this Court reported in _**National Insurance Company Limited v. Muneer [2003 (1) KLT 137]**_ . A reading of that decision would reveal that the learned Tribunal was not correct in understanding the principles laid down in that decision. It is very specifically stated in that decision itself “the claim under Section 166 of the Motor Vehicles Act and 163 (A) of the Motor Vehicles Act are alternative and claimant cannot claim under both with a prayer to ## **M.A.C.A.No. 1109 OF 2008** ## **-2-** adjust the amount paid under Section 163(A) to his claime under Section 166.“ The Division Bench said that “ it is far from saying that a claimant who has chosen to stake his claim under Section 166 of the Motor Vehicles Act cannot get the minimum guaranteed compensation under Section 163(A) of the Motor Vehicles Act”. So it was only with respect to the contention of the amount the Division Bench of this Court was making those observations. Making it crystal clear the claim under Section 163(A) and 166 are independent and mutually exclusive. This point has been recently considered by the learned Judge of this Court in the decision reported in _**National Insurance Co. Ltd. v. Jabbar [2007 (1) KLT 331]**_ . The learned Judge held that the provisions under Section 163(A) and Section 166 are different, one cannot pursue his remedies under both the provisions simultaneously. He has to act/elect to go either for provisions under Section 163(A) or under Section 166. So it will be pointed out that it is appropriate that the option or election is exercised while invoking the Tribunal's jurisdiction, that is, at the institution of application. So it is crystal clear that it is for the claimant to choose the jurisdiction under ## **M.A.C.A.No. 1109 OF 2008** ## **-3-** Section 166 or 163(A). I am also concious of the fact that a Division Bench of this Court held that amendment can be permitted. But it has to be done at a stage not at the time of the passing of the award but before the matter is being considered. Unfortunately in this case the claimant has never chosen to convert the petition under Section 166 to 163(A). The Tribunal considered the whole matter under Section 166 of the Motor Vehicles Act came to the conclusion that the accident took place on account of negligence of the claimant and then it reached a conclusion that compensation can be awarded under Section 163(A). It is totally impermissible under law and the Tribunal has no jurisdiction to exercise an option which the law gives only to the parties and therefore the proceedings of the Tribunal to grant compensation under Section 163(A) cannot be sustained. Therefore the said finding is set aside. 3. Now what remains is, is the claimant entitled to any compensation? Under Section 142 of the Motor Vehicles Act permanent disablement is categorized in 142 (a) to (c). Section 142(b) deals with destruction or permanent impairing of the powers of any member or joint or (c) deals with permanent disfiguration of **-4-** ## **M.A.C.A.No. 1109 OF 2008** the head or face. A perusal of the award would show that the petitioner had developed nerve palsy and left facial palsy persists. Facial palsy can be considered to be one thing which will having impact of the disfiguration of the face for the reason that the blood circulation on that area will be totally curtailed making the face without blood flow. It has to be stated that it will affect the important parts of our body as well. So the nature of injuries sustained in the accident can amount to disfiguration of face in this case coupled with affecting the joints on account of the non circulation of the blood due to the facial palsy. Therefore Section 142 will come to play and when it is so, even if the accident had taken place on account of negligence of the claimant, he will be entitled to the No fault liability compensation under Section 140 of the Motor Vehicles Act. Therefore I award a sum of Rs. 25,000/under Section 140 of Motor Vehicles Act in this case. In the result the appeal is disposed of as follows: The finding of the Tribunal that the claimant is entitled to compensation under Section 163(A) is set aside and he is awarded a compensation of Rs. 25,000/- under Section 140 of the Motor ## **M.A.C.A.No. 1109 OF 2008** ## **-5-** Vehicle Act with 9% interest on the said sum from the date of petition till realisation and Insurance Company namely the 10[th] respondent is directed to deposit the said amount within a period of 60 days from the date of receipt of this judgment. If the amount is already deposited and it covers the amount so ordered, the claimant is permitted to withdraw the same considering the gravity of the injury and the passage of time the Tribunal is directed to release the entire amount in favour of the claimant. The M.A.C.A. is disposed of accordingly. If there is any balance amount in deposit thereafter, it shall be reimbursed to the Insurance Company. ## **M.N. KRISHNAN, JUDGE** vkm