The main legal point established is that a claim petition under Section 163A of MV Act is not maintainable if the claimant's annual income exceeds the statutory limit, and attempts to scale down income for the petition are impermissible if contradicted by evidence.

JUDGMENT :

This appeal is filed by the claimant under Section 173(1) of MV Act challenging the judgment and award passed in MVC No.91/2007 dated 14.10.2010 on the file of the Fast Track Court, Sirsi (hereinafter referred to as ‘the Tribunal’ for short) whereby the Tribunal has rejected the claim by dismissing the appeal and prayed for allowing the MFA by awarding the compensation.

2. The parties herein are referred with the ranks occupied by them before the trial Court.

3. The factual matrix leading to the case are that, the appellant is a barber by profession and was also working under respondent No.2. On 05.11.2006, at about 11.30 a.m., in Ganasin kani village road while he was proceeding on a Bajaj CT 100 vehicle bearing No.KA-31/K-3971 it met with accident and he sustained grievous injuries over the head and other parts of the body. Then he has taken treatment in Government Hospital and later on shifted to Kasturba Hospital, Manipal and he was inpatient till 14.12.2006 and spent Rs.86,000/- towards treatment and medical bills. That he has filed the claim petition claiming compensation and he has got examined himself as Pw.1 and placed reliance on Ex.P1 to P57. The vehicle was insured with respondent No.1. Though the petition was initially filed under Section 166 of MV Act, subsequently, it was converted under 163A of MV Act by way of amendment. However, the tribunal has rejected the claim petition on the ground that petitioner himself was rash and negligent and further his income does not fit within the parameters. Being aggrieved by this judgment the appellant has filed this appeal.

4. Heard the arguments advanced by learned counsel for the appellant and the learned counsel for the respondent No.1. Respondent No.2 is unrepresented.

5. Learned counsel for the appellant would contend that when the Court has allowed the amendment and when he scaled down his income by bringing his annual income of Rs.40,000/-, the tribunal was not justified in rejecting his claim by making observation that it is impermissible. He would also contend that scaling down of the income and conversion of the petition under Section 166 to 163A of MV Act is permissible and it is a social beneficial act and hence, strict proof is not required. Hence, he would contend that the impugned judgment may be set aside and sought for allowing the petition by awarding the compensation.

6. Per contra the learned counsel appearing for respondent–insurer has opposed the petition on the ground that though the petition was got amended by scaling down the income and by converting it under Section 163A of MV Act, however, the evidence itself disclose that annual income of the petitioner is more than Rs.40,000/- and hence, the petition is not maintainable and he would contend that the admissions given by the claimant cannot be taken away and though he technically scaled down which is not permissible but the evidence again disclose his higher income and as such the petition is liable to be dismissed. Hence, he would contend that trial Court is justified in rejecting the claim petition and sought for dismissal of the appeal.

7. Having heard the arguments and perusing the records, it is undisputed fact that the petitioner has initially filed the petition under Section 166 of MV Act, but after examination and cross examination of Pw.1 he has got it amended under Section 163A of MV Act by reducing the monthly income from Rs.4,000/- p.m., to Rs.3,200/-. Whether rightly or wrongly the said amendment was allowed. The petitioner has disclosed his profession as Barber and private service under respondent No.2. Interestingly on perusal of the petition, it is evident that he did not specifically admit that accident is because of his actionable negligence and he never assert that he was the rider but simply asserts that the vehicle met with accident and he suffered injury. However, during the cross examination it is elicited that he himself was the rider of the motorbike and the accident w