Mithun Subramanian v. Nidhish Eldo Joseph and The New India Assurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH THURSDAY, THE 8TH DAY OF SEPTEMBER 2016/17TH BHADRA, 1938 MACA.No. 2613 of 2016 () -----------------------------AGAINST THE AWARD IN O.P(MV)No.853/2012 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, ERNAKULAM DATED 30-05-2016 APPELLANT/PETITIONER: --------------------------- MITHUN SUBRAMANIAN, AGED 22 YEARS, S/O SUBRAMANIAN, PULICKAL HOUSE, MUPPATHADOM P.O, ERAMAM, ALUVA. BY ADVS.SRI.RAHUL SASI SMT.NEETHU PREM RESPONDENTS/RESPONDENTS: ---------------------------------- ## 1. NIDHISH ELDO JOSEPH, S/O JOSEPH T.V, PROPRIETOR, T.J. RUBBERS, NEAR IDA, 4TH MILE, ERUMATHALA P.O, ALUVA, ERNAKULAM 683 112. 2. THE NEW INDIA ASSURANCE CO. LTD, DIVISIONAL OFFICE, P.B NO 2451, KOTTAKKAL AYURVEDA SALA BUILDING, M.G ROAD, COCHIN 682 016. R2 BY ADV. SRI.VPK.PANICKER R2 BY SRI.A.A.ZIYAD RAHMAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 08-09-2016, ALONG WITH MACA.NO.2628 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **“C.R.”** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** --------------------------------------M.A.C.A.Nos.2613 & 2628 of 2016 --------------------------------------Dated 8th September, 2016 ## **JUDGMENT** ## **Ravikumar, J.** The main question posed for consideration, which would decide the very maintainability of these appeals, is whether the appellants fall, within the expression `person aggrieved' employed under Section 173 of the Motor Vehicles Act (in short `M.V.Act') in view of the circumstances hereafter to be narrated. Subject to the provisions of sub-section (2), Section 173(1) of the M.V. Act provides for an appeal to the High Court by `a person aggrieved' by an award passed by a Claims Tribunal. Consideration of the aforesaid question has become inevitable since the appeals are filed by the appellants/ claimants seeking enhancement of the quantum of compensation against awards whereby and whereunder compensation in excess of their claim was granted. O.P.(M.V)Nos.853 of 2012 and 2326 of 2012 from which the above appeals arise, germane from one singular motor vehicle accident and they were jointly enquired into and a common award dated 30.5.2016 was passed by the Motor Accidents Claims Tribunal, Ernakulam. Hence, the appeals are jointly considered. M.A.C.A.Nos.2613 & 2628 of 2016 2 2. Shorn off details the facts necessary for deciding the said question are as follows:- Actually, three vehicles involved in the accident in question that occurred on 13.12.2011. The deceased in the latter appeal viz., Waseem Sajad was riding the motor cycle bearing Reg.No.KL-11/AC 7658 from east to west through Aluva - A.M.Road. The appellant in the former appeal was a pillion rider on another motor cycle bearing Reg.No.KL-42/E 3014 ridden by his friend Adhithyaraj towards the same direction through the same road. When they reached Thottumugham the offending car bearing Reg.No.KL-41/B 7576 driven by the common first respondent towards the same direction overtook the motorcycle ridden by the victim in the latter appeal through its left side and then suddenly turned towards right, without giving proper signal. As a result, the said vehicle hit against both the motor cycles. Waseem Sajad sustained injuries and later succumbed to the injuries on 20.3.2012. The appellant in the former appeal sustained grievous injuries and they ultimately resulted in permanent disability. In the circumstances, the injured Mithun Subramanian filed O.P.(M.V)No.853 of 2012 limiting the claim of compensation to 5 lakhs. The deceased₹ Waseem Sajad was a bachelor and his legal heirs viz., his mother and sister filed O.P.(M.V)No.2326 of 2012 limiting the claim to 15 lakhs.₹ M.A.C.A.Nos.2613 & 2628 of 2016 3 In O.P.(M.V)No.853 of 2012, the Tribunal granted an amount of ₹ 6,83,060/- (Rupees Six Lakhs Eighty Three Thousand and Sixty only) with interest at the rate of 9% per annum from the date of petition till realisation as against a claim of 5 Lakhs. It is pertinent to note that₹ as against a claim of 2 lakhs as compensation for permanent disability₹ the Tribunal granted a compensation of 4,01,760/- (Rupees Four₹ Lakhs One Thousand Seven Hundred and Sixty only). In O.P.(M.V) No.2326 of 2012 ₹ 16,20,500/(Rupees Sixteen Lakhs Twenty Thousand and Five Hundred only) was awarded as against a claim limited to 15 lakhs. The common first respondent, the insurer of the₹ offending vehicle - car, was held liable to indemnify its insured owner. Despite such an award no appeal has been preferred by the insurer. 3. We have heard the learned counsel for the appellants and the learned counsel appearing for the common first respondent. 4. The nub of the contention of the learned counsel for the appellants is that the fact that the appellants confined their claim to ₹ 5 lakhs and 15 lakhs and the Tribunal granted compensation more₹ than the amount thus claimed, cannot be a fetter to their rights to prefer an appeal under Section 173(1) of the M.V. Act seeking M.A.C.A.Nos.2613 & 2628 of 2016 4 enhancement of the quantum of compensation. The learned counsel submitted that in fact, in the claim petitions, the appellants made own assessment of compensation of more than 5 lakhs and 15 lakhs₹ ₹ respectively though the claim was limited to 5 lakhs and 15 lakhs₹ ₹ respectively. It is contended that the Tribunal has deprived them `just compensation'. The contention is that the Tribunal has failed to compensate the appellants adequately under different heads and hence they would fall within the expression `person aggrieved' for the purpose of Section 173(1) of the M.V. Act. 5. Per contra, the learned counsel for the first respondent submitted that since the appellants were granted compensation much in excess of their claim before the Tribunal they would not fall within the expression `person aggrieved' and since their grievance is only against the quantum of compensation even after obtaining compensation more than the claimed amount they are not entitled to prefer an appeal against the common award dated 30.5.2016 in terms of Section 173(1) of the M.V. Act. It is such contentions that necessitated consideration of the aforesaid question. M.A.C.A.Nos.2613 & 2628 of 2016 5 6. In that regard it is worthwhile to refer to Section 173 of the M.V. Act and it reads thus:- “ **173. Appeals** .- (1) Subject to the provisions of subsection (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court: Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent. Of the amount so awarded, whichever is less, in the manner directed by the High Court: Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.” 7. The term `person aggrieved' is not defined under the M.V. Act. Therefore, its meaning in common parlance has to be looked into. In _Ramanatha Aiyar's Concise Law Dictionary_ the word `aggrieved' is given the meaning `a person who has suffered a legal grievance - a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him M.A.C.A.Nos.2613 & 2628 of 2016 6 something or wrongfully affected of his title to something.' Going by the New International Webster's Comprehensive Dictionary, Encyclopedic Edition, the word `aggrieved' means `injured', as by legal decision adversely infringing upon one's rights. In this context, it is not inapropos to refer to a Full Bench decision of this Court in **Binu Chacko** v. **Regional Transport Authority and Another** reported in **2006 (2) KLT 172** . Going by the said decision `to be legally aggrieved' a person must be not merely dissatisfied with or even prejudicially affected by an act or decision, he must also have been deprived of or refused something to which he was legally entitled to or is subjected to a legal burden. True that the said decision was rendered while dealing with the revisional power under Section 90 of the M.V. Act. 8. The learned counsel appearing for the appellants relied on the principle of ` _restitutio in intergum_ ' which means `restore into the original position' and in the matter of determination of compensation it means `to compensate a person or a party who is a victim of a wrong or tort, for the loss or damage sustained or suffered'. It is further contended that while considering the `just compensation' under Section 168 of the M.V. Act the Claims Tribunals have a duty to weigh the various factors and quantify the amount of just compensation M.A.C.A.Nos.2613 & 2628 of 2016 7 and therefore, while adjudicating the just compensation under Section 168 of the M.V. Act the Claims Tribunals got unfettered powers to go into the claims in detail and also to grant compensation in excess of what is actually claimed. In other words, it would be open to the Tribunals to grant compensation in excess of the amount claimed if in its opinion the just compensation to which the claimant deserves, is more than the amount actually claimed. The said contention is certainly in conformity with the decision of the Hon'ble Apex Court in **Rajesh** v. **Rajbir Singh (2013(3) KLT 89(SC)).** In paragraph 19 of the decision in **Rajesh's** case the Hon'ble Apex Court held thus:- “In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the Application, if any, to properly award a just, equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.” (underline supplied) Certainly, the reference was about the duty of Tribunals to register reports of accidents received under Section 158(6) of the M.V. Act as M.A.C.A.Nos.2613 & 2628 of 2016 8 applications for compensation under Section 166(4), without waiting for claim petitions, in terms of its earlier decision in **Jai Prakash** v. **National Insurance Co. Ltd. and Others** reported in **(2010) 2 SCC 607** . Obviously, in the case of applications for compensation thus registered there will not be any claim for any amount under any specific head and it is for the Tribunal to award `just compensation' with reference to the settled principles on assessment of damages. Suffice it to say that in the light of the dictum laid down in **Rajesh's** case (supra) it would be open to the Tribunal or a court and virtually, it is the duty of the court to properly award just and equitable, fair and reasonable compensation and if necessary, by ignoring the claim made in the application for compensation. Indisputably, it is in view of the said exposition of law by the Hon'ble Apex Court that the Tribunal as per the impugned awards granted more amount of compensation than claimed by the appellants in their respective claim petitions. Solely seeking enhancement of compensation without showing that by the legal decision he had suffered a legal grievance or in other words, as held in **Binu Chacko's** case (supra) that he was deprived of or refused something to which he is legally entitled to, how can a claimant maintain an appeal in such circumstances where the claimant was granted compensation in excess of his claim. Certainly, the mere fact M.A.C.A.Nos.2613 & 2628 of 2016 9 that he is dissatisfied with the quantum of compensation granted even though in excess of his claim or after the award he felt that he is entitled to more, cannot be a reason to treat a claimant as `a person aggrieved' for the purpose of Section 173(1) of the M.V. Act. 9. How can a petitioner in a claim petition who is a grantee of compensation in excess of his claim could be considered as a `person aggrieved', entitled to prefer an appeal in terms of Section 173 of the M.V. Act when as per the said legal decision nothing was deprived of or refused to him to which he was legally entitled to ? Merely because a claimant had actually made an own assessment of compensation to which he is entitled, and then, limited the claim below such assessed amount it cannot be a reason for such a claimant to canvass the position that denial of the compensation assessed by him, as can be seen from the claim petition or his hindsight that he is entitled to more than the amount claimed, should confer him an indefeasible right to prefer an appeal even if he is not otherwise aggrieved by the award in question. Admittedly, in terms of Rule 397(1) of the Kerala Motor Vehicles Rules, 1989 (for short `the Rules' only), _ad valorem_ fee was paid by the appellants herein only for the amount to which the claim is limited. In the eye of law that amount alone can be taken as the M.A.C.A.Nos.2613 & 2628 of 2016 10 amount claimed and the aforesaid question has to be decided based on the amount thus claimed as compensation. In such circumstances, the claimants cannot be permitted to fall back on their own original assessment, ignoring the fact that the claim was then limited below that amount and court fee was paid only for the amount actually claimed while considering the aforesaid question. As a matter of fact, in the former appeal, evidently, the Tribunal has granted compensation which is more than the own original assessment viz., 6,60,000/-, made by₹ the appellant therein. In the contextual situation another aspect is also relevant to take note of. It can be better explained by referring to Rule 397 of the Rules and it reads thus:- “ **397. Fees** .-(1) Every application under sub-section (1) of Section 166 of the Act, for payment of compensation shall be accompanied by a fee of rupee one in the form of Court Fee Stamp, if the claim in a case of accident is confined to special damages and if any further general damages, are claimed, an _advalorem_ fee shall be charged on the aggregate of the special and general damages claimed on the following scales, namely:- ## _Amount Claims_ ## _Amount of Court Fee_ (i) Upto Rs.5,000 (ii) Rs.5,001 to 50,000 Rs.10 Rs.10 plus ¼% of the amount Rs.5,000. M.A.C.A.Nos.2613 & 2628 of 2016 11 (iii) Rs.50,001 to 1,00,000 Rs.122.50 plus ½% of the amount by which the claim exceeds Rs.50,000. (iv) Over Rs.1,00,000 Rs.372.50 plus 1% of the amount by which the amount of claim exceeds Rs.1,00,000. (2) The Claims Tribunal may, in its discretion, exempt a party from the payment of the fee prescribed under subrule (1): Provided that when the claimant succeeds and an award is made in his favour, the party ordered by the award to pay the compensation shall deposit the amount of compensation before the Claims Tribunal and the claimant shall be paid only such amount available after deducting the court fee which would have been paid by the claimant had he not been exempted under sub-rule (2) of this rule. (3) The fee for an appeal shall be rupees one hundred.” ## This Court in the decision in **Raman Nair** v. **Mukundan Nair** reported in **2005 (3) KLT SN 83 : 2005 KHC 1176** held that a rowing enquiry as required under the Code of Civil Procedure is not required for granting exemption from payment of court fee, as permissible under sub-rule (2) of Rule 397 of the Rules and its proviso. ## 10. In the decision in **Suma** v. **Rajesh** reported in **2011** **(4) KLT 109** the question was whether claimants could seek exemption M.A.C.A.Nos.2613 & 2628 of 2016 12 from payment of court fee for the reason that they got no means to pay. It was held that seeking exemption from payment of court fee under the Motor Vehicles Act is not similar to an application claiming dispensation of court fee to sue as an indigent person. It was further held that a rowing enquiry as provided under the Code of Civil Procedure would not be required for exercising the power under the aforesaid Rules in the matter of granting exemption from payment of court fee and it could be allowed on condition that the claimant would be entitled to such amount only after deducting the court fee payable. 11. In the light of the provisions under Rule 397 of the Rules and the decisions referred (supra) the claimants cannot put forth a contention that they refrained themselves from making a claim in tune with their own assessment solely because they got no means to pay the _ad valorem_ fee. The appellants got no case that they filed such an application and it was rejected. Suffice it to say that in view of all the aforesaid circumstances and provisions the aforesaid question can be considered only with reference to the amount actually claimed to which court fee was paid and also by taking into account the amount awarded. M.A.C.A.Nos.2613 & 2628 of 2016 13 12. As noticed hereinbefore, in this case, the appellant in the former appeal limited his claim to 5 lakhs and the Tribunal after₹ considering all the relevant factors granted compensation in excess of the same, to be precise, 6,83,060/-. Though the appellant attempted₹ to canvass the position that there exists dispute regarding the assessment of permanent disability as according to him, his disability ought to have been taken as 62%, according to us, it also cannot be a reason to contend that he was deprived of or refused the amount to which he was legally entitled to. It is to be noted that Ext.C3 is the disability certificate issued by the Medical Board issued from Medical College, Kottayam and going by the same his permanent disability is only 31%. The appellant was aged 20 years at the time of the accident and he was then pursuing his study in B.Sc Degree course. Still, the Tribunal notionally fixed his income as 6,000/- despite the fact that he₹ was a non-earning person and then, the entire percentage of disability viz., 31% was taken into account for the purpose of granting compensation for permanent disability. He was given a compensation of 4,01,760/- as against the claim of 2,00,000/- under that head.₹ ₹ Evidently, the Tribunal after considering the evidence on record and the nature of injuries found that the appellant is entitled to get more than the compensation claimed viz., 5,00,000/- and awarded an amount of₹ M.A.C.A.Nos.2613 & 2628 of 2016 14 ₹ 6,83,060/- with 9% interest per annum from the date of petition till realisation. 13. As relates O.P.(M.V)No.2326 of 2012 from which the latter appeal arises, the deceased was a bachelor and was aged 19 years. He was also a B.Sc Degree student viz., a non-earning person. The claimants/appellants are his mother and sister and his father predeceased him. As noticed hereinbefore, as against a claim of ₹ 15,00,000/- they were granted 16,20,500/- with interest at the rate₹ of 9% per annum from the date of petition till realisation. Despite the fact he was a student and a non-earning person the Tribunal fixed the monthly income notionally as 6,000/-. In fact, regarding his status as₹ a B.Sc student no evidence was adduced. Towards compensation for love and affection the appellants, who are respectively the mother and sister of the deceased, were given 2,00,000/-. In view of the₹ aforesaid circumstances as also in the absence of any averment and evidence to the effect that either of them had actually witnessed the incident no separate damages are awardable for the grief or sorrow caused by the death. There is also no case that either of them was afflicted with any recognizable psychiatric illness on account of having witnessed the accident in question. Having scanned the contentions M.A.C.A.Nos.2613 & 2628 of 2016 15 raised by the appellants in both the appeals we do not find any reason whatsoever to arrive at a conclusion that they suffered a legal grievance as nothing to which they are legally entitled to, in the circumstances, was deprived of or refused to them. In the said circumstances, legally the appellants could not have any grievance on that issue. For the foregoing reasons, these appeals are liable to fail as the appellants cannot be said to be aggrieved persons legally entitled to seek enhancement of compensation. Accordingly, both the appeals are dismissed. There will be no order as to costs, in both the appeals. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS // true copy // P.S. To Judge