P.R. Ramachandra Menon, J.

Interference declined by the Motor Accidents Claims Tribunal, dismissing the claim petition filed by the appellant/injured holding that the same is not maintainable under Section 163A of the Motor Vehicles Act is under challenge in this appeal.

2. The appellant was riding his scooter bearing No.KL.11.8636 on 10.02.1994 by 3.00 p.m. When he reached the place of occurrence, a pedestrian allegedly crossed the road abruptly. The appellant applied the brake and swerved the scooter, where upon he lost control and fell on the road sustaining serious injuries. This resulted in an alleged disability to an extent of 30% by virtue of eye-droop. The loss was sought to be compensated by filing claim petition against the owner of the vehicle and the insurer, who were shown as respondents 1 and 2 in the claim petition filed under Section 163A of the Act as aforesaid.

3. Despite completion of service of notice, the first respondent/owner did not choose to contest the matter by filing any written statement. The respondent insurance company filed a detailed written statement disputing the liability on several grounds, including that the claim was not maintainable under Section 163A; that accident had occurred much prior to introduction of the said provision and further that it was barred by limitation, besides the challenge on quantum and such other aspects. The evidence adduced before the Tribunal consists of Exts. A1 to A6 produced from the part of the claimant; besides Exts.X1 certificate of permanent disability issued from the Medical College Hospital, Calicut, which was marked as a court exhibit. The respondent Insurance Company produced Ext.X1 and marked Exts.B1 and B2, which are photocopies of the policy and that of the charge sheet. No oral evidence was adduced from either side.

4. The maintainability of the claim petition was considered by the Tribunal, placing reliance on the judgment of the Supreme Court in (2003)8 SCC 718(Maitri Koley vs.New India Assurance Co.). It was held that the law has to be applied with reference to the position as it existed on the date of accident. Admittedly since the accident in the instant case was on 10.02.199 and the enabling provision under Section 163 A (whereby negligence was never to be pleaded or proved by the claimant/victim) was introduced only with effect from 1 .11.199 , it was held in paragraph 8 that the claim petition was not maintainable.

5. Yet another aspect considered by the Tribunal was whether the petitioner was a person coming within the purview of Section 163A of the Act; by virtue of his declared annual income. The factual position noted was that, as per the claim petition, the income of the claimant was stated as Rs.42000/- and hence the appellant/claimant belonged to a higher category/class. In so far as the beneficiaries of Section 163A were concerned, it was intended only for such persons who were having maximum annual income of Rs.40000/- and as per the decision of the Supreme Court reported in (2004) 5 SCC 385 (Deepal Girishbhai Soni vs. United India Insurance Co. Ltd.) it was not possible to fix a cap or ceiling to the monthly income so as to have it limited to Rs.40000/- and to have claimed the benefit flowing therefrom without the need or necessity to consider or establish the aspect of negligence. It was held that the claim petition was not maintainable on this ground as well. The claim petition was accordingly dismissed, without venturing into quantification of the loss resulted because of injuries. The above finding and reasoning are under challenge in this appeal.

6. Heard Mr. B. Krishnan, the learned counsel for the appellant as well as Ms. Deepa George, the learned counsel appearing on behalf of the Insurance Company.

7. During the course of hearing, the learned counsel for the appellant submits that Section 163A is a substantive provision, which is a deviation from the normal concept of granting compensation in respect of injuries/death