NOORJAHAN v. KALADHARAN

K.HEMA, J. -------------------------- M.F.A.No.758 of 1994-----------------------------Dated this the 15th day of February, 2006JUDGMENTPetitioner is a claimant in O.P.(M.V).No.1019 of 1989 on thefile of the Motor Accidents Claims Tribunal, Palakkad. Accordingto the claimant, she sustained a fracture and a permanentdisability arising out of the use of a motor vehicle. She made aclaim under “Section 110(a) and 92(a) of the Motor Vehicles(Amendment) Act, 1988 and Rule 3 of Motor Accidents ClaimsTribunal Rules, 1977”, as noticed in the petition. The Tribunalheld that the petitioner is permanently disabled on the basis ofthe medical certificate. But the award was passed on account ofpermanent disability only at Rs.1,500/- for the 3% disability. Theappellant is aggrieved by the said finding and the portion of thesaid award.

Learned counsel appellant confines the argument onlyin respect of the amount awarded for permanent disability. Hevehemently contended that the Tribunal ought to have awardedat least Rs.12,500/-, since the appellant is entitled to such amountunder Section 140 of the Motor Vehicles Act having establishedthat the appellant has permanent disability as referred to in Section 142 of the Motor Vehicles Act. But, on going through thepetition, there is nothing therein to show that a claim is madeunder Section 140 of the Act. However, page No.1 of the petition [MFA.758/94]2shows that the claim petition is filed under “Section 110A... and92 of the Motor Vehicles (Amendment) Act, 1988.

It is submitted by learned counsel for petitioner that it isonly a mistake in quoting the section. But in the copy of thepetition the Sections mentioned are 140 and 166. It was pointedout that a close perusal of the petition will go to show that whatis type written was acutally Sections 140 and 166 of the MotorVehicles Act, 1988. It is also pointed out that in cases where noclaim is made under Section 140 of the Act, a claimant is boundto mention the same specifically in the claim petition itself underhis or her signature as provided under Section 166(2) of the Act. It is provided under Section 166(2) of the Act that if no claim forcompensation under Section 140 of the Act is made in anapplication filed under Section 166, the application shall contain aseparate statement to the effect immediately before thesignature of the applicant. It is submitted by learned counsel forthe appellant that since no such declaration was made in thepetition under the signature of the appellant, it is to be deemedthat the appellant has made the application under Section 140 ofthe Act also. Therefore, the claim made by her under Section 140ought not have been foreclosed, it is submitted.

The provisions in Chapter 10 of the Act shows that when aclaim is made under Section 140, it has to be dealt with anddecided under the provisions in the said Chapter. Section 141 ofthe Act provides that the right to claim compensation undersection 140 of the Act in respect of death or disablement of anyperson shall be in addition to any claim for compensation in [MFA.758/94]3respect of thereof under any other provision of the Act. It is clearthat in addition to the claim made under Section 140 of the Act aperson can make a claim under Section 166 of the Act also. Boththe claims have to be considered and dealt with if such a claim ismade both under Sections 140 and 166 of the Act. A claim forcompensation under Section 140 of the Act requires to bedisposed of as expeditiously as possible at the first place. It issubmitted that though the application itself was made puttingforward a claim under section 140 of the Act such claim was notconsidered at all as required under Section 141 and Chapter X ofthe Act. It is also submitted that at least when considering theclaim under Section 166 of the Act, the Tribunal ought to haveconsidered the appellant's entitlement under Section 140 of the Act. In these premises it is strongly contended that the Tribunalerred in not awarding the minimum of Rs. 12,000/- for the 3%permanent disability, which was found by the Tribunal.

On going through the records, especially the petition, itcan be sen that Section 140 was not referred to thereinspecifically. It was filed under Sections 92(a) and 110(a) of the Motor Vehicles (Amendment) Act, 1988. But it may appearappellant has not made any statement as required under theproviso to Section 166(2) of the Act. On considering the factsand circumstances of this case, a question will arose whether itwas only a case of wrong quoting of the Section or not. Hence, Ifind that this is a fit case where the appellant has to be given onemore opportunity to moot the question before the Tribunal itself. The Tribunal has to consider whether the appellant is entitled to [MFA.758/94]4any compensation under Section 140 or whether she can beawarded compensation for the permanent disability atRs.12,500/-. For this purpose the matter has to be remanded. In the above circumstances, the Tribunal is directed toreconsider the matter afresh in the light of the observations madein this judgment. The case being one of the year 1989 and thequestion is only a narrow one, it shall be considered and disposedof by the Tribunal within 45 days from the date of receipt of acopy of this judgment, after hearing both sides. The appeal is allowed.K.HEMA, JUDGEvgs. [MFA.758/94]5K.HEMA, J. -------------------------- M.F.A.No.758 of 1994----------------------------- 14th February, 2006JUDGMENT