Judgment :- 1. The Insurance Company is the appellant. The above appeal arises against an award passed by the Tribunal made in MACTOP. No. 5/2001. It is a case of injury. 2. Thefirst respondent as the claimant filed claim petition seeking for compensation of Rs.2,50,000/-towards pain and suffering, permanent disability, loss of earning power etc., and expenditure for treatment and travelling . 3. Thecase of the claimant before the Tribunal is that on 19.11.2000 at 4.15 p.m. he was walking through the extreme side of Tellicherry Kozhikode Road and when he reached in front of Mahe Church, a Motor Cycle bearing No. PY-03/2622, which was going towards Mahe Bridge, hit on him and thereby he sustained severe injuries as follows:- 1. Lacerated injury right side of face. 2. Lacerated injuiry right upper eyelid. 3. Contusion right side of chest. 4. Colle's fracture (Left) 5. Swellingand pain right knee 6. Pain right side of face 7. Avulsion nail on great toe and right thumb. 8. Pain whole left side of the body, leg and knee. 9. ½ cm lacerated wound over the left cheek. 10. Pain and swelling of right upper teeth. (shaken) The claimant is the ration shop owner and was getting a sum of Rs.6,500/- per month. He was taken to the Government Hospital, Mahe soon after the accident and thereafter taken to Indira Gandhi Cooperative Hospital, Tellicherry for taking treatment and he was there as inpatient from 19.11.2000. He was discharged from the hospital on 29.11.2000. Therefore, the first respondent as claimant has filed the petition in MACTOP No. 5 of 2001 on the file of the Motor Accident Claims Tribunal Mahe seeking for compensation of Rs. 2,50,000 under four heads as stated supra. 4. The second respondent Insurance Company before the Tribunal filed the counter affidavit and contested the matter. It is stated by the Insurance Company that the accident took place due to the negligence of the claimant and not due to the rash and negligent riding of the motor cycle by the first respondent before the Tribunal. The Insurance Company also disputed about the petitioner's earning a sum of Rs. 4,500 per month as ration shop owner. 5. The Tribunal by an award dated 14th March 2002 awarded a sum of Rs. 1,50,659/- as compensation to the claimant together with cost and interest at 9% per annum from the date of petition. The Insurance Company also disputed about the petitioner's earning a sum of Rs. 4,500 per month as ration shop owner. 5. The Tribunal by an award dated 14th March 2002 awarded a sum of Rs. 1,50,659/- as compensation to the claimant together with cost and interest at 9% per annum from the date of petition. For arriving at such a conclusion and quantum the Tribunal has categorically found that the claimant sustained injuries only due to the rash and negligent riding of the Motor cycle by the first respondent owner. The Tribunal also found that the claimant had sustained 10% partial disability as a result of the injury sustained by him in the accident that took place in pursuant to the rash and negligent driving of the first respondent owner. The Tribunal after discussing all the facts and and circumstances fixed the quantum of compensation under seven heads which are as follows:- 1. Compensation for the injuries sustained Rs.10,000 2. Compensation for partial permanent Rs.78,000 disability 3. Compensation for the loss of income Rs.18,000 4. Compensation for pain and sufferings Rs.25,000 (past, present and future) 5. Compensation for loss of amenities Rs.10,000 6. Actuals supported by bills and vouchers Rs. 4,659 7. Miscellaneous expenses like transportation charges etc. Rs. 5,000 Total Rs.1,50,659/- during the period of treatment & convalescing Aggrieved against the said award passed by the Tribunal the Insurance Company has preferred the above appeal. 6. In this appeal though notice was served on the respondents as early as 9.11.2004 and 15.11.2004 itself , they have not chosen to appear either in person or through counsel. 7. The learned counsel for the appellant Insurance Company argued that the Tribunal having seen that the application seeking for compensation was filed under Section 166 (1) of the Motor Vehicles Act ought not to have adopted the structured formula under Section 163-A of the said Act. The learned counsel further contended that the Tribunal failed to note that there was no ascertainment of percentage of loss of earning capacity as per schedule I under Workmen's Compensation Act 1923, especially when the finding of the Tribunal is that the claimant had suffered 10% partial permanent disability only. According to the learned counsel for the appellant, the Tribunal was not correct in awarding a sum of Rs.78,000 towards partial disability. According to the learned counsel for the appellant, the Tribunal was not correct in awarding a sum of Rs.78,000 towards partial disability. It is also argued by the learned counsel for the appellant that P.W.2 Doctor had certified only 10% partial disability under Ex.A8 certificate and there is no certificate certifying the percentage of loss of earning capacity as per schedule I under Workmen's Compensation Act 1923. It is further contended by the learned counsel for the appellant that the Tribunal ought to have calculated the compensation under Section 4(1)(c) of the Workmen's Compensation Act and not under Section 4(1)(b) of the said Act. 8. Insofar as the other heads viz., the compensation for partial permanent disability is concerned, the learned counsel contended that in the absence of any certificate certifying the loss of earning capacity the claimant is not entitled to a sum of Rs. 78,000/-as awarded by the Tribunal. Insofar as the award of Rs.18,000/- towards compensation for loss of income during the period of treatment and convalescing, it is stated by the learned counsel for the appellant that there is no supporting material evidence to claim such a compensation. In respect of compensation for pain and sufferings, the learned counsel submitted that a sum of Rs.25,000 is too high towards that head. Equally, he contended that towards compensation for loss of amenities awarding a sum of Rs. 10,000 is unwarranted. Thus by submitting so, the learned counsel for the appellant argued that the very basis of passing award by the Tribunal is erroneous and consequently the same is to be set aside. In support of his contention, the learned counsel for the appellant relied on the decision in R.SHANKARRAJ VS. H.RAJAPPA AND OTHERS (2009 (1) TNMAC 398) 9. I have heard the learned counsel for the appellant. 10. The first and foremost contention of the learned counsel for the appellant is that the Tribunal having found that the application seeking for compensation has been filed under Section 166(1) of the Motor Vehicles Act, is not justified in adopting the structured formula under Section 163A of the said Act. In other words, it is the contention of the learned counsel that once the application is filed under Section 166 of the Motor Vehicles Act the Tribunal is not entitled to adopt the structured formula under Section 163A of the said Act. 11. In other words, it is the contention of the learned counsel that once the application is filed under Section 166 of the Motor Vehicles Act the Tribunal is not entitled to adopt the structured formula under Section 163A of the said Act. 11. The original application filed by the claimant before the Tribunal when perused shows that the said application was filed under Sections 166 and 163A of the Motor Vehicles Act. Therefore, it is not correct to say that the application was filed only under Section 166. It may be true that the Tribunal has referred in the award in paragraph 1 as if the application was filed under Section 166(1) of the said Act. It may be either omission or oversight. The fact remains that the original application filed before the Tribunal was the one under Sections 166 and 163A. It is also to be noted that in the said application itself it is clearly stated that the claim amount of Rs.2,50,000/- is inclusive of the amount claimed under Section 163 of the Motor Vehicles Act. Therefore, the claimant is fully conscious of the provisions of the law under which the application is made. 12. Section 163A of the Motor Vehicles Act 1988 reads as follows:- Section 163-A. Special provisions as to payment of compensation on structured formula basis:- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be . Explanation – For the purpose of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (2) In any claim for compensation under sub-section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule. 13. The above provision deals with the payment of compensation on structured formula basis by the owner of the motor vehicle or the authorised insurer in the case of death or permanent disablement as indicated in the Second Schedule. The Explanation to the above said Section 163A says that the meaning of "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1983. Under Section 2 (l) of the Workmen's Compensation Act, "total disablement" has been defined as follows:- (l) "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 in such disablement: Provided that permanent total disablement shall be deemed to result from every injury specified in Part I of Schedule I or from any combination of injuries specified in Part II thereof where the aggregate percentage of the loss of earning capacity, as specified in the said Part II against those injuries, amounts to one hundred percent or more; 14. From the reading of Section 163A of the Motor Vehicles Act and the definition clause of " total disablement" as provided under Section 2(l) of the Workmen's Compensation Act 1923, it is clear that the vehicle owner or the authorised insurer is liable to pay the compensation as indicated in the Second Schedule of the Motor Vehicles Act 1988 and for the purpose of looking into the definition of "permanent disability" one has to look into the provisions of the Workmen's Compensation Act under Section 2 (l). What is provided under Section 4 of Workmen's Compensation Act is in respect of the amount of compensation payable under the said Act to the victim therein. What is provided under Section 4 of Workmen's Compensation Act is in respect of the amount of compensation payable under the said Act to the victim therein. Therefore, the contention of the learned counsel for the appellant that the Tribunal ought to have awarded compensation under Section 4(1)(c) of the Workmen's Compensation Act is liable to be rejected. No doubt, it is true that the Tribunal has not discussed anything about the percentage of loss of earning capacity as contemplated under clause 5(b) of the First Schedule. However, the Tribunal has discussed about the percentage of disability and the consequential loss of income in detail at para 23. In my considered view, merely because there is no discussion about the percentage of loss of earning capacity, that itself will not disentitle the first respondent from seeking the just and fair compensation at the hands of the Tribunal. A mere technical defect can not stand in the way of rendering substantial justice. Consequently what follows is only to see as to whether the compensation awarded by the Tribunal to the first respondent herein is a just and fair compensation or not. 15. When the claimant before the Tribunal viz., the first respondent herein has invoked both the provisions of Section 163A as well as Section 166 of the Motor Vehicles Act, while making an application for compensation , the Tribunal has rightly considered the said issue at paragraph 18 of its award and found that appropriate income slot of the injured can be resorted to under the guidelines and predetermined formula available under Section 163A of the Motor Vehicles Act. As I have already pointed out in the earlier paragraphs that the application filed by the first respondent herein before the Tribunal is not only an application filed under Section 166 as observed by the Tribunal, but it is also an application filed under Section 163A. Therefore, the Tribunal was justified in adopting the structured formula and consequently the award of the Tribunal in resorting to the provisions of Section 163A is justifiable. 16. While arriving at the quantum of compensation, the Tribunal has found the age of the first respondent/victim as 47 years by taking note of Ex.A11 which is the extract of School admission register. 16. While arriving at the quantum of compensation, the Tribunal has found the age of the first respondent/victim as 47 years by taking note of Ex.A11 which is the extract of School admission register. Thereafter, while fixing the income of the first respondent, the Tribunal has found that the first respondent was running a ration shop at Mahe and was earning a monthly income not less than Rs.5,000. This finding was rendered by the Tribunal only after taking note of his monthly turnover as Rs.1,20,000/- in procuring commodities in his ration shop out of which he was getting 4.5% commission from the said monthly turn over. Therefore, the Tribunal has found that on an average, the first respondent was earning a sum of Rs. 5,000 per month. Likewise towards the loss of income of the first respondent it was considered by the Tribunal and found that a sum of Rs.1,500 per month towards the same would be reasonable and ultimately a sum of Rs.18,000/- (Rs.1,500 x 12) was awarded as compensation towards the said head. The Tribunal has also found that the first respondent had to employ another person as salesman with a monthly salary of Rs.1,500/-due to his inability which prevented him from doing his routine work. 17. Insofar as the compensation for permanent disability and injuries is concerned, the Tribunal at paragraph 23 of its order has found that the first respondent had sustained 10% partial permanent disability as consequence of the injury sustained in the accident. The Doctor had also opined that owing to the injuries and damages caused to the first respondent to his left wrist , he has lost grip flexion of the left hand. Pointing out such disability of the first respondent, the Tribunal has found that such inability will have definitely far reaching consequences in the day to day routine work of the first respondent. Consequently the Tribunal has awarded a sum of Rs. 78,000/- by taking note of the permanent disability as 10%. At this juncture, it is to be noted that the first respondent has only 6 degree meta tarsal flexion as against 60 to 70 degree normal flexion. Thus, one could undoubtedly come to the conclusion that the first respondent as a ration shop owner cannot discharge his functions in a normal way as he did before the accident. At this juncture, it is to be noted that the first respondent has only 6 degree meta tarsal flexion as against 60 to 70 degree normal flexion. Thus, one could undoubtedly come to the conclusion that the first respondent as a ration shop owner cannot discharge his functions in a normal way as he did before the accident. Therefore, the compensation of Rs.78,000/-towards permanent disability and injuries awarded by the Tribunal is just and proper which does not warrant any interference by this court. 18. Insofar as the award of compensation granting a sum of Rs.25,000 towards pain and suffering and a sum of Rs. 10,000/- towards loss of amenities, I find no valid reason to interfere with the said sum and consequently the award of compensation as granted by the Tribunal is just and fair and it does not warrant any interference by this court. 19. The learned counsel for the appellant relied on the decision of this court in R.SHANKARRAJ VS. H.RAJAPPA AND OTHERS (2009 (1) TNMAC 398) to invite my attention that the entire method of compensation adopted by the Tribunal is not correct by resorting to Section 163A instead of adopting lumpsum method by contending that the application was filed only under Section 166. I find that the said decision is no way applicable to the facts and circumstances of the case, in view of the fact that the application filed by the first respondent claimant was also under Section 163A as found by me supra. Therefore, by considering all the facts and circumstances of the case as well as the order passed by the Tribunal, which is fairly a well reasoned one, I find no valid or justifiable ground to interfere with the award passed by the Tribunal. Accordingly, the appeal is dismissed but without costs.