Allowed

Anjali W/O.Late Nidheesh v. Ragesh, S/O.Narayanan

Kerala HC1 Oct 2020MACA/1716/2014

Case brief

AI extract

What is this about?

This court allowed an appeal by the deceased's wife to enhance compensation awarded by the Motor Accident Claims Tribunal. Invoking Order XLI Rule 33 CPC, the court held it could enhance the award even though other dependents (father and mother) did not appeal. The compensation was recalculated based on Supreme Court principles regarding future prospects and specific heads of claim.

What did the court decide?

Enhanced total compensation to Rs.12,98,400/- with 9% interest to be deposited by the insurer and disbursed to all petitioners/dependents.

Anjali W/O.Late Nidheesh Vs Ragesh, S/O.Narayanan — Motor Accident Claims | Kerala HC (2020)

¶1

¶2

MACA 1716 OF 2014

¶3

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶4

PRESENT

¶5

THE HONOURABLE MR.JUSTICE C.S.DIAS

¶6

THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942

¶7

MACA.No.1716 OF 2014

¶8

AGAINST THE AWARD IN OPMV 325/2012 DATED 28-11-2012 OF THE PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL ,KOZHIKODE

¶9

APPELLANT/3RD PETITIONER

¶10

ANJALI, W/O.LATE NIDHEESH KARIPAL HOUSE, P.O. KOTTOOLI, KOZHIKODE-673016.

¶11

BY ADVS.

¶12

SRI.E.NARAYANAN SRI.SUMODH MADHAVAN NAIR

¶13

RESPONDENT/RESPONDENTS/PETITIONERS 1 AND 2

¶14

1 RAGESH, S/O.NARAYANAN S/O.NARAYANAN, THAZHERAMATHKANDI HOUSE, AYANCHERRY, VADAKARA, KOZHIKODE. PIN-673544.

¶15

2 PRAJEESH, S/O. NARAYANAN, RAMATHKANDY HOUSE,AYANCHERRY, VADAKARA, KOZHIKODE. PIN-673544.

¶16

3 HDFC ERGO GENERAL INSURANCE CO.LTD. YMCA ROAD, CHAIRSMAC, GROUND FLOOR 6/845, KOZHIKODE-673001.

¶17

4 SOMAN, AGED 62 YEARS S/O. GOPALAN, VAYAPPURATH HOUSE, PUTHIYANGADI, EDAKKADU.P.O., KOZHIKODE DIST. 673 021

¶18

5 NANDINI, AGED 48 YEARS W/O. SOMAN,KANIYAMKANDI THAZHAM PARAMBA, VAYAPPURATH HOUSE, PUTHIYANGADI, EDAKKADU.P.O., KOZHIKODE DIST.673 021

¶19

R1 AND R2 BY ADV. SMT.M.MANJU R1 AND R2 BY ADV. SRI.R.SUDHISH

¶20

R3 BY ADV. SRI.K.B.RAMANAND

¶21

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 1.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

MACA 1716 OF 2014

“CR”

C.S.DIAS, J.

======================

¶27

MACA No.1716 of 2014

¶28

====================== Dated this the 1^st day of October, 2020.

¶29

JUDGMENT

¶30

Is the Appellate Court competent to enhance the compensation in an appeal filed by only one of the petitioners, is the question that emerges for consideration in this appeal.

¶31

The appellant, the third petitioner in OP(MV) 325/2012, is aggrieved by the award passed by the Motor Accidents Claims Tribunal, Kozhikode. The respondents 1 to 3 in the appeal were the respondents 1 to 3 and the respondents 4 and 5 in the appeal were the petitioners 1 and 2 before the Tribunal. The parties are, for the sake of convenience, referred as per their status in the claim petition.

¶32

The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (in short 'Act'), claiming compensation on account of

¶33

¶34

MACA 1716 OF 2014

¶35

the death of Nidheesh, the son of petitioners 1 and 2 and husband of the third petitioner.

¶36

The concise case of the petitioners in the

¶37

claim petition was that, on 26.10.2010, while the deceased was travelling in a car bearing registration No.KL-18E 2945, driven by the second respondent, owned by the first respondent and insured with the third respondent, the car hit the road divider near Sarovaram Park, Eranhipalam, Kozhikode. In the impact, the deceased got thrown out of the car, and died instantaneously. The deceased was aged 26 years. He was working as a salesman and was drawing a monthly salary of Rs.6,000/-. The petitioners sought a compensation of Rs.17,08,000/-, which was limited to Rs.10,00,000/-.

¶38

The third respondent filed a written statement, inter alia, contending that the compensation claimed was excessive. There was no negligence on the part of the second respondent in driving the car. However, the car was insured with

¶39

¶40

MACA 1716 OF 2014

¶41

the third respondent.

¶42

Neither the petitioners nor the

¶43

respondents adduced any oral evidence. Exts A1 to A3 were produced and marked in evidence on the side of the petitioners.

¶44

After considering the pleadings and materials on record, the Tribunal by the impugned award allowed the claim petition, in part, by holding that the petitioners were entitled to compensation of Rs.6,38,000/- with 7% interest from the date of petition till the date of deposit and proportionate costs. The Tribunal directed the third respondent to deposit the compensation, and the same to be apportioned among the petitioners in the ratio of 2:1:1.

¶45

Dissatisfied with the quantum of compensation, the third petitioner – wife of the deceased, has preferred this appeal.

¶46

Heard the learned counsel appearing for the appellant and the learned counsel appearing for the third respondent in the appeal – the Insurance

MACA 1716 OF 2014

Company.

The learned counsel appearing for the appellant argued that he was confining his arguments to the quantum of compensation awarded by the Tribunal. He contended that the Tribunal has failed to award compensation for future prospects as laid down by the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], Munna Lal Jain and another v. Vipin Kumar Sharma and others [(2015) 6 SCC 347], United India Insurance Co. Ltd vs. Satinder Kaur @ Satwinder Kaur and others [2020 (3) KHC 760] and Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] . He also contended that the Tribunal failed to grant compensation, as per the principles laid down in the above decisions, under the conventional heads viz., loss of estate, loss of consortium and funeral expenses. He prayed that the appeal be allowed and the quantum of compensation be enhanced.

¶51

¶52

MACA 1716 OF 2014

¶53

The learned counsel appearing for the third respondent vehemently opposed the above arguments. He argued that as the respondents 4 and 5/petitioners 1 and 2 have not joined the appellant, it is to be assumed that they are not aggrieved by the award. Hence, the appeal as against the third respondent may be dismissed as the grievance of the appellant is principally against respondents 4 and 5 regarding the apportionment of compensation.

¶54

In the memorandum of appeal, the appellant has specifically contended, in grounds 5 and 6, that the apportionment was wrong and the compensation was not fair and adequate.

¶55

Sec.169(2) of the Motor Vehicles Act, 1988 confers the Tribunal with all the powers of a Civil Court for the purposes mentioned in the said provision. Likewise, Rule 395 of the Kerala Motor Vehicles Rules, 1989, has enabled certain provisions of the Code of Civil Procedure (Code) to apply to the proceedings before the Tribunal.

¶56

¶57

MACA 1716 OF 2014

¶58

In Velunni v. Vellakutty [1989 (2) KLT

¶59

227] and Asmath Khan v. Chandrahasa Bangara & Ors [ 2006 (4) KLT 494] this Court has held that the Tribunal would have the power to apply the principles underlining the provisions of the Code, even though not rendered specifically applicable, and the Claims Tribunal has all the attributes and trapping of a Civil Court and is deemed to be a Civil Court as specifically mentioned in Sec.169 (2) of the Act.

¶60

In view of the declaration of law in the aforecited decisions, I hold that Order XLI Rule 33 of the Code is applicable to a proceeding under the Act. 16. Order XLI Rule 33 of the Code reads

¶61

thus:-

¶62

“33. Power of Court of Appeal – The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal

¶63

¶64

MACA 1716 OF 2014

¶65

or objection [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:

¶66

[Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order]

¶67

Interpreting Order XLI Rule 33 of the Code, the Hon'ble Supreme Court in Mahant Dhangir and another vs Madan Mohan and

¶68

others [AIR 1988 SC 54] held thus:-

¶69

“15. xxx xxx xxx xxx xxx

¶70

The appellate court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words “as the case may require” used in Rule 33 of O.41 have been put in wide terms to enable the

¶71

¶72

MACA 1716 OF 2014

¶73

appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of the judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. It is true that the power of the appellate court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties The Court should not refuse to exercise that discretion on mere technicalities”.

¶74

Therefore, for the Appellate Court to exercise its power under Rule 33 of Order XLI of the Code, all the parties before the Lower Court are to be before the Appellate Court and that the question raised must properly arise out of the judgment of the Lower Court.

¶75

In the case on hand, all the parties before

¶76

the Tribunal are before this Court. The claim petition was filed seeking compensation on account

¶77

¶78

MACA 1716 OF 2014

¶79

of the death of the son of the petitioners 1 and 2 and husband of the third petitioner. Being aggrieved by the inadequacy of compensation awarded by the Tribunal, the appellant has approached this Court. The question before the Tribunal and this Court is the 'just compensation' that is payable to the petitioners – dependents of the deceased.

¶80

In Oriental Insurance Company Ltd. v. Chhama Devi and Ors [2019 KHC 2386] and in Royal Sundaram Alliance Insurance Co., Ltd v. Sharmila and Ors [2018 KHC 7613], the High Courts of Himachal Pradesh and Madras, respectively, have held that the Appellate Court is empowered to enhance the quantum of compensation even in the absence of any appeal or cross-objection by the claimants in an appeal by Insurance Company, invoking Order XLI Rule 33 of Code.

¶81

In Nagappa vs. Gurudayal Singh [ 2003 (1) KLT 115(SC) the Hon'ble Supreme

¶82

¶83

MACA 1716 OF 2014

¶84

Court held that there is no restriction in the Tribunal awarding more compensation than the amount claimed in the claim petition.

¶85

It is rudimentary that an appeal is a continuation of the original proceeding.

¶86

On going through the award, it is seen that the Tribunal has erroneously failed to award future prospects. Similarly, the Tribunal has failed to grant compensation under the conventional heads: (i) loss of estate, (ii) loss of consortium, and (iii) funeral expenses. The Tribunal was bound to follow the law declared by the Hon'ble Supreme Court in Pranay Sethi, Munna Lal Jain, Satinder Kaur and Sarla Verma (supra), which it failed to do. When such impropriety and irregularity has been committed by the Tribunal, in denying 'just compensation' to the petitioners as per the principles laid down in the above precedents, this Court cannot remain a mute spectator and adopt a pedantic approach, and perpetuate the illegality by denying the petitioners

¶87

¶88

MACA 1716 OF 2014

¶89

the compensation that they are legally and legitimately entitled to. This Court has to act ex debito justitiae.

¶90

In State of Arunachal Pradesh v. Ramchandra Rabidas @ Ratan Rabidas and another [(2019) 10 SCC 75] the Hon'ble Supreme Court observed thus:-

¶91

“5. The MV Act is a beneficial legislation, the primary objective being to provide a statutory scheme for compensation of victims of motor vehicle accidents; or, their family members who are rendered helpless and disadvantaged by the untimely death or injuries caused to a member of the family, if the claim is found to be genuine. The M.V Act provides a summary procedure for claiming compensation for the loss sustained in an accident, which is otherwise applicable to suits and other proceedings while prosecuting a claim before a civil court”.

¶92

In light of the law laid down by the Hon'ble Supreme Court in the aforequoted decisions, and on finding that the Tribunal has erroneously failed to grant just compensation, invoking the powers of this Court under Rule 33 of Order XLI read with Sec.151 of the Code, I hold

¶93

¶94

MACA 1716 OF 2014

¶95

that even though the respondents 4 and 5 have not challenged the award, they are also entitled to compensation in the appeal filed by the appellant/third petitioner.

¶96

The Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121] has held that 'just compensation' is 'adequate compensation', which should be fair and equitable depending on the facts and circumstances of the case, to make good the loss suffered as a result of a wrong, as far as money can do so, by applying the well settled principles relating to the award of compensation.

¶97

A Constitution Bench of the Hon'ble Supreme Court in National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680], has held that concept of 'just compensation' has to be determined on the foundation of fairness, reasonableness and equitability, and has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of

MACA 1716 OF 2014

equitability.

In a recent decision, a three Judge Bench of the Hon'ble Supreme Court in Pappu Deo

¶102

Yadav Vs. Naresh Kumar and others has held that the Courts should not adopt a stereotypical or myopic approach, but instead hear the matter taking into account the realities of life both in assessment of the extent of disabilities and compensation under the various heads.

¶103

Keeping in mind the law laid down in Sarla Verma, Pranay Sethi and Pappu Deo Yadav (supra) precedents, I proceed to decide whether the compensation awarded by the Tribunal was just.

¶104

Undisputedly, the son of the petitioners 1 and 2 and husband of the third petitioner died in an accident on 26.10.2010. Exts A1 and A2 substantiate the accident and Ext A3 proves the relationship of the petitioners with the deceased.

¶105

The deceased was 26 years on the date of his death. The petitioners claimed that the

¶106

¶107

MACA 1716 OF 2014

¶108

deceased was a salesman drawing a salary of Rs.6,000/-, which was accepted by the Tribunal. The respondents have not filed any appeal/cross objection challenging the impugned award. Thus, age, income of the deceased and his relationship with the petitioners are not in dispute.

¶109

As deceased was 26 years at the time of accident/death, the multiplier to be adopted is '17' as per the ratio in Sarla Verma and Pranay Sethi (supra). The Tribunal has omitted to grant future prospects, as per the principles in Pranay Sethi , Sarla Verma and Reshma Kumari (supra). Considering that the deceased was not having a permanent employment, the future prospects is fixed at 40%.

¶110

In Sarla Verma (supra), it has been held that the personal and living expenses of the deceased has to be deducted from his monthly income. In the case on hand, the petitioners are the father, mother and wife of the deceased, respectively. Therefore, one-third of the income of

¶111

¶112

MACA 1716 OF 2014

¶113

the deceased has to be deducted.

¶114

On a perusal of the impugned award, it is seen that the Tribunal has awarded an amount of Rs.6,12,000/- towards loss of dependency. Considering that the deceased was 26 years old at the time of his death, his income was fixed at Rs.6,000/-, the multiplier is 17, future prospects is 40% and after deducting 1/3 towards personal and living expenses, the compensation under the head - loss of dependency has to be enhanced and re-fixed at Rs.11,42,400/-, instead of Rs.6,12,000/- fixed by the Tribunal.

¶115

The Tribunal has awarded only an amount of Rs.5,000/- towards funeral expenses. In light of the decisions in Pranay Sethi and Sarla Verma (supra), the amount to be awarded for funeral expenses is Rs.15,000/-. Accordingly, I enhance the amount under the said head by a further amount of Rs.10,000/-. Similarly, the Tribunal has awarded only an amount of Rs.5,000/- towards loss of estate. It is settled that an amount of Rs.15,000/- has to be

¶116

¶117

MACA 1716 OF 2014

¶118

awarded towards loss of estate. Hence, I enhance the compensation under the said head by a further amount of Rs.10,000/-. Under the head – loss of consortium, the Tribunal has only awarded an amount of Rs.10,000/-. It is settled in Pranay Sethi, Sarla Verma and Satinder Kaur @ Satwinder Kaur (supra) that an amount of Rs.40,000/- each has to be awarded to the dependents. Accordingly, I hold that the petitioners are entitled to an amount of Rs.40,000/- each under the heads - parental consortium and spousal consortium. Accordingly, I enhance the compensation under the said head from Rs.10,000/- to Rs.1,20,000/-.

¶119

Therefore, on an overall re-appreciation of the pleadings and materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited precedents, I am of the considered opinion that the appellant/third petitioner and the respondents 4 and 5/petitioners 1 and 2 are entitled for enhanced compensation as modified and recalculated above and given in the table

¶120

¶121

MACA 1716 OF 2014

¶122

below for easy reference.

¶123

SI. No	Head of claim	Amount claimed (in rupees)	Amount awarded (in rupees)	Amounts modified and recalculated by this Court
1	Funeral expenses	10,000/-	5,000/-	15,000/-
2	Loss of estate	1,00,000/-	5,000/-	15,000/-
3	Loss of consortium to 3^rdpetitioner	1,00,000/-	10,000/-	1,20,000/-
4	Transportation to hospital	1,000/-	1,000/-	1,000/-
5	Pain and sufferings	50,000/-	5,000/-	5,000/-
6	Loss of dependency	Nil	6,12,000/-	11,42,400/-
	Total	-	6,38,000/-	12,98,400/-

¶124

In the result, the appeal is allowed by granting the appellant and respondents 4 and 5 (petitioners in OP(MV) 325/2012), an additional compensation of Rs.6,60,400/- (Rupees Six Lakh Sixty Thousand and Four Hundred only) with interest at the rate of 9% per annum from the date of petition till date of realisation with proportionate cost. The 3rd respondent shall deposit the additional compensation granted in this appeal with interest and proportionate cost within a period of two months from the date of receipt of a certified copy of this judgment, after deducting liability, if any, of the appellant towards balance court-fee and

¶125

¶126

MACA 1716 OF 2014

¶127

legal benefit fund. The Tribunal shall disburse the additional compensation to the appellant and respondents 4 and 5, in accordance with law.

Sd/-

C.S.DIAS

JUDGE