Baby Devasia v. Babu Thomas and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **FRIDAY, THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** ## **OP (MAC).No. 100 of 2016** **AGAINST THE ORDER/JUDGMENT IN OPMV 662/2009 of MACT PALA DATED 22-08-2016** ## **PETITIONER:** **BABY DEVASIA, S/O DEVASIA, AGED:41 YEARS,KAPPILPARAMBIL HOUSE, KAROOR P.O, MUNDUPALAM, LALAM VILLAGE.** **BY ADV. SRI.P.C.HARIDAS** ## **RESPONDENTS:** - **1 BABU THOMAS, MANAGING PARTNER, PALA TIMBERS, MARKET JUNCTION, PALA (EXPIRED)-686575.** - **2 K.K.JOSHKUMAR, KAYARAMKODAM (H), NOW RESIDING AT PALA TIMBERS, MARKET JUNCTION, PALA-686575.** - **3 THE RELIANCE GENERAL INSURANCE CO.LTD., JACKSON BUILDING, MANORAMA JUNCTION, KOTTAYAM P.O.,-686001,CHELLIOZHUKAM ROAD, KOTTAYAM DT.** - **4 ANCY BABU, OZHACKAL HOUSE, PALA -686575 5 RAHUL BABU, OZHACKAL HOUSE, PALA -686575 6 SONA BABU, OZHACKAL HOUSE, PALA -686575 R3 BY ADV. SRI.K.B.RAMANAND** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 26.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 OP(MAC)100 OF 2016 ## **JUDGMENT** The petitioner is the claimant in O.P.(MV)No.662 of 2009 on the file of the Motor Accident Claims Tribunal, Pala, a claim petition filed under Section 166 of the Motor Vehicles Act, 1989, claiming compensation for the injuries sustained in a motor accident, which occurred on 23.11.2008, while he was standing on the side of a public road. At the place of accident, he was hit by a crane bearing registration No.KL-5/W324 owned by the 1[st] respondent, driven by the 2[nd] respondent, and insured with the 3[rd] respondent before the Tribunal. During the pendency of the claim petition, the registered owner of the said vehicle died and his legal heirs are impleaded as additional respondents 4 to 6, who are arrayed as respondents 4 to 6 in this original petition. 2. In the claim petition, the petitioner claimed a total compensation of Rs.2,98,000/- under different heads and limited the same to Rs.2,00,000/- for the purpose of payment of court fee. Ext.P1 is a true copy of the claim petition in O.P.(MV) No.662 of 2009 and Ext.P2 is the written statement filed by the 3[rd] 3 OP(MAC)100 OF 2016 respondent insurer, who alone contested the matter. Now the petitioner has filed this original petition under Article 227 of the Constitution of India, seeking an order to set aside Ext.P8 order dated 22.08.2016 of the Tribunal in IA No.2008 of 2016 in O.P. (MV) No.662 of 2009 and an order directing the Tribunal to consider the said interlocutory application afresh and allow the same. The petitioner has also sought for other consequential benefits. 3. On 22.09.2016 when this original petition came for admission, this Court admitted the matter on file. The 3[rd] respondent insurer entered appearance through counsel and notice was ordered to other respondents. This Court has also granted an interim stay as prayed for, i.e., stay of all further proceedings in O.P.(MV) No.662 of 2009 on the file of the Motor Accident Claims Tribunal, Pala. 4. Heard the learned counsel for the petitioner and also the learned counsel for the 3[rd] respondent insurer. Despite service of notice none appears for respondents 2 and 4 to 6. 5. The sole issue that arises for consideration in this original 4 OP(MAC)100 OF 2016 petition is as to whether any interference is warranted on Ext.P8 order passed by the Tribunal, whereby IA No.2008 of 2016 filed by the petitioner, seeking an order to amend O.P.(MV) No.662 of 2009 stands rejected. The reasoning of the Tribunal, as contained in Ext.P8 order reads thus:- “7. **Point No.1** :- The petitioner has at present produced a salary certificate issued from a private concern claiming that he is having a monthly income of Rs.15,000/- per month. The petitioner was aware of this fact when the original petition was filed during August 2009. The petitioner has no case that the monthly income shown originally was due to clerical error. In Thomas George P. (Dr) and another V. Santha O. and others (ILR 2016 (3) Kerala 451) our Hon'ble High Court has held that “the tribunal should grant just compensation to the claimant which may be more than the claim made in the claim petition. The tribunal need not be restricted by the claim made in the claim petition”. So even if, the amendment is not allowed no injuries will be caused to the petitioner. If the petitioner succeeds to prove his income, the tribunal will definitely allowed the same. The amendment sought for is not necessary for the purpose of determining in the real 5 OP(MAC)100 OF 2016 questions in the controversy between the parties. In such circumstances the petition is only to be dismissed. I do so.” 6. I.A.No.2008 of 2016 is one filed by the petitioner, who is the claimant in O.P.(MV)No.662 of 2009 seeking amendment of Ext.P1 claim petition, invoking the provisions under Order VI Rule 17 of the Code of Civil Procedure, 1908 read with Rule 395 of the Kerala Motor Vehicles Rules, 1989. The first amendment sought for is in respect of Column No.6 of Ext.P1 claim petition regarding monthly income of the claimant as Rs.15,000/-, instead of Rs.7,500/-. The other amendments sought for as Sl.Nos.2 to 12 in I.A.No.2008 of 2016 are for the purpose of claiming higher compensation under various heads by making appropriate amendment in column No.25 Part I and Part II, line Nos.16, 17 and 21 in page 5 of the claim petition. 7. The Tribunal by Ext.P8 order rejected the said application relying on the judgment of this Court in **Dr.Thomas George P. and another v. Santha O. and others (ILR 2016 (3) Kerala 451)** . In the said decision, the Division Bench of this Court held 6 OP(MAC)100 OF 2016 that the compensation payable in a claim under Section 166 of the Motor Vehicles Act is 'just compensation', by virtue of the provisions under Section 168 of the said Act. The mere fact that the claimants made only a claim for a lesser compensation amount cannot be a reason for not granting higher compensation, if the Tribunal ultimately found that the claimants are entitled to get more. 8. In the instant case, as already noted, the first amendment sought for is in respect of column No.6 of Ext.P1 claim petition regarding the monthly income of the claimant as Rs.15,000/-, instead of Rs.7,500/-. The Tribunal has to fix monthly income of the claimant for the purpose of assessing compensation under various heads based on the pleadings and materials on record. Another amendment sought for is regarding loss of earning claimed in Column No.25 Part I of Ext.P1 claim petition, for the period from 23.12.2008 to 23.12.2012 instead of the original claim made for six months from 23.11.2008. The Tribunal has to fix the period of loss of earning based on the pleadings and materials on record. Since the petitioner has 7 OP(MAC)100 OF 2016 sought for amendment regarding the monthly income claimed in Ext.P1 claim petition and also the period for loss of earning, the Tribunal ought not to have dismissed I.A.No.2008 of 2016 on the ground that the amendment sought for is not necessary for the purpose of determining the real questions in controversy between the parties. 9. The provisions contained in Chapters X to XII of the Motor Vehicles Act, 1988, is a benevolent legislation aimed at providing relief to victims of motor accidents, and in death cases to their legal representatives. It is now well settled that court should not succumb to the procedural wrangles and tangles, hyper technicalities and niceties. The effort should be to adduce the cause of justice and settle the dispute once for all. In **N.K.V.Bros.(P)Ltd. v. Karumai Ammal [(1980) 3 SCC 457]** the Apex Court held that the court should not succumb to niceties, technicalities and mystic maybes. 10. In such circumstance, the original petition is disposed of by setting aside Ext.P8 order dated 22.08.2016 of the Motor Accident Claims Tribunal, Pala in IA No.2008 of 2016 in OP(MV) 8 OP(MAC)100 OF 2016 No.662 of 2009 and the said interlocutory application is allowed as prayed for. The Tribunal shall proceed with the matter, after affording the respondents in the claim petition an opportunity to file additional written statement. Since, the claim petition is of the year 2009, the Tribunal shall take appropriate steps to see that the same is finally disposed of, as expeditiously as possible. Sd/- **ANIL K. NARENDRAN JUDGE** **yd** 9 OP(MAC)100 OF 2016 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT-P1 TRUE COPY OF O.P (MV) NO. 662/2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** **EXHIBIT-P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 3RD RESPONDENT IN O.P (MV) NO. 662/2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** - **EXHIBIT-P3 TRUE COPY OF THE IA NO. 2008/2016 IN OP(MV) NO. 662/2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** - **EXHIBIT-P4 TRUE COPY OF THE OBJECTION TO EXT.P3 FILED BY THE 3RD RESPONDENT** - **EXHIBIT-P5 TRUE COPY OF THE PETITION TO ACCEPT DOCUMENTS FILED BY THE PETITIONER** - **EXHIBIT-P6 TRUE COPY OF THE DISABILITY CERTIFICATE ISSUED TO THE PETITIONER** - **EXHIBIT-P7 TRUE COPY OF THE CERTIFICATE FOR INCOME ISSUED TO THE PETITIONER** - **EXHIBIT-P8 TRUE COPY OF THE ORDER DATED 22/8/2016 IN IA NO. 2008/2016 IN OP (MV) NO. 662/2009 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY P.A. TO JUDGE