Molly Kutty v. United India Insurance Company and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **THURSDAY, THE 13TH JANUARY 2011 / 23RD POUSHA 1932** ## **WP(C).No. 32055 of 2009(B)** **---------------------------------------** ## **OPMV.732/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD** **....................** ## **PETITIONER(S):** **--------------------** **MOLLY KUTTY, W/O. ATE MATHEW THOMAS, CHAKKALAYIL HOUSE, NEAR VINAYAKA THEATRE, P.O KANHANGAD.** **BY ADVS. SRI.JAWAHAR JOSE SMT.CISSY JAWAHAR** ## **RESPONDENT(S):** **------------------------** ## **1. UNITED INDIA INSURANCE COMPANY,** - **P.B. NO. 29, NITHYANANDA BUILDINGS, KOTTACHERRY, P.O. KANHANGAD.** ## **2. RAKESH V.K,** **S/O. KUNHIRAMAN V., RESIDING AT KATTADI, P.O. KOLAVAYAL, AJANUR VILLAGE, KASARGOD DIST.** **3. N.K. RAGHAVAN, S/O. KANNAN NAMBIAR, NALLUR HOUSE, P.O. KADUMENI, CHERUPUZHA (VIA), KANNUR DIST.** ## **4. NISHA MATHEW, AGED 17 YEARS,** **5. FEBIN MATHEW, AGED 10 YEARS,(RESPONDNETS** - **4 AND 5 ARE MINORS AND THEY ARE REP. BY THEIR NEXT FRIEND GUARDIAN MOTHER, THE PETITIONER, THE RESPONDENTS 4 AND 5 RESIDING AT CHAKKALAYIL HOUSE, NEAR VINAYAKA THEATRE, P.O. KANHANGAD.** **R1 BY ADV. SRI.P.V.JYOTHI PRASAD R4 & R5 BY ADV. SMT.ANITHA CHERIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.32055/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **P1:- COPY OF THE AMENDMENT PETITION FILED AS IA. NO.1673/2007 WITH ORDERS THEREIN, IN THE DOCKET SHEET.** **P2:- COPY OF THE AMENDMENT PETITION FILED AS IA. NO.1673/2008 .** **P3:- COPY OF THE ORDER IN IA.NO.1177/2008.** ## **TRUE COPY** **P.A. TO JUDGE** **tss** ## **P.N.RAVINDRAN** , **J. --------------------------W.P.(C) No. 32055 OF 2009 -------------------------Dated this the 13[th] day of January, 2011** ## **J U D G M E N T** The petitioner is the first claimant in O.P.(MV) No. 732 of 2005 on the file of Motor Accidents Claims Tribunal, Kasaragod. Respondents 4 and 5 herein are the other claimants. Late Mathew Thomas, husband of the petitioner and father of respondents 4 and 5 herein, met with an accident on 24.7.2005 when he was travelling in a stage carriage bus belonging to the second respondent and driven by the third respondent. The first respondent is the insurer of the said vehicle. Sri. Mathew Thomas passed away on 26.7.2005. The petitioner and respondents 4 and 5 thereupon filed O.P.(MV) No.732 of 2005 claiming payment of the sum of Rs.12 lakhs as compensation. They had in paragraph 6 of the claim petition averred that the deceased was employed as High School Assistant in Government Higher Secondary School, Hosdurg. and was drawing a monthly salary of Rs.7,375/-. Later, after the respondents entered appearance in the claim petition, the claimants filed I.A. No.1613 of 2007 to amend the claim petition. Ext.P1 is a true copy thereof. Along with that application, they had filed I.A. WPC No.32055/09 2 No.1611 of 2007 and produced along with it a salary certificate to prove that the deceased was drawing a monthly salary of Rs.13,610/per mensem. However, in the application for amendment, I.A. No.1613 of 2007 it was stated that the deceased was drawing a monthly salary of Rs.14,681/- with effect from 1.8.2004. The claimants had also prayed consequential amendments to the claim petition. I.A. No.1613 of 2007 was heard on 7.6.2008. By a cryptic order passed on that date, the Motor Accidents Claims Tribunal, Kasaragod dismissed the said application. The order reads as follows: ## **“Heard Adv. Venugopal and counsel for R3. The reason stated for amendment is not sufficient and dismissed.”** 2. The claimants did not challenge the said order. Instead, on 10.7.2008 they filed I.A. No.1177 of 2008 for an amendment of the claim petition. In that application, they prayed that the figure Rs.7,375/- occurring in column No.6 of the claim petition may be struck off and the words “Rs.12,026/- (Rupees twelve thousand and twenty six only) which was later revised to Rs.13,610/- (Rupees thirteen thousand six hundred and ten only) may be substituted in its place. The claimants also prayed for other consequential WPC No.32055/09 3 amendments. Ext.P2 is a true copy of I.A. No.1177 of 2008. The said interlocutory application came up for hearing on 9.10.2009. By Ext.P3 order passed on the same day, the Motor Accidents Claims Tribunal dismissed the application on the short ground that I.A. No.1613 of 2007, the earlier application for amendment stands dismissed and therefore the second application is not maintainable. Ext.P3 is under challenge in this writ petition filed under Articles 226 and 227 of the Constitution of India. 3. I heard Sri.Jawahar Jose, learned counsel appearing for the petitioner, Sri. P.V.Jyothi Prasad, learned counsel appearing for the first respondent insurer and Smt. Anitha Cherian, learned counsel appearing for respondents 4 and 5. The learned counsel for the petitioner contended relying on the decision of the Apex Court in **Nagappa v. Gurudayal Singh and Others** (2003 (2) SCC 274) that the Tribunal ought to have allowed the application for amendment in view of the fact that no period of limitation is prescribed for filing a claim petition and that even without a specific pleading the Tribunal can award more compensation than what is claimed in the application. The learned counsel also submitted that by allowing the amendment of the claim petition enhancing the claim there will be no WPC No.32055/09 4 change in the cause of action and that the Tribunal ought to have in such circumstances allowed the application for amendment. Per contra, the learned counsel appearing for the insurer contended relying on the decision of the Apex Court in **Ayyappally Mohammed Haji v. M.M.Abdulsalam and Others** (2001 (2) (SCC) 428) that in view of the dismissal of the first application for amendment on 7.6.2008, the second application for amendment (Ext.P2) was not maintainable and was rightly dismissed by Ext.P3 order. 4. I have considered the rival submissions made at the Bar by the learned counsel on either side. It is now well settled by the decision of the Apex Court in **Nagappa v. Gurudayal Singh and Others** (2003 (2) SCC 274) that there is no limitation on the compensation that can be awarded by the Motor Accidents Claims Tribunal constituted under the Moor Vehicles Act, 1988 and that there is no restriction that the Tribunal constituted under the Motor Vehicles Act can award compensation only up to the amount claimed by the claimant and in cases where from the evidence on record the Tribunal finds that the claimant is entitled to get more compensation than what is claimed, the Tribunal can pass such an award. In the instant case the widow and son of the deceased, who was employed WPC No.32055/09 5 as Teacher in a Government Higher Secondary School has claimed a total sum of Rs.12 lakhs as compensation under various heads. In the claim petition the widow and children had averred that the deceased was drawing a monthly salary of Rs.7,375/-. Later by virtue of a pay revision order which took effect from 1.8.2004 the salary of the deceased as on the date of his death stood revised as 13,610/-. The claimants thereupon filed I.A. 1611 of 2007 and produced along with the salary certificate to that effect. Along with that application, they filed I.A. No.1613 of 2007 to amend the application. The said applications were filed on 23.11.2007. However in Ext.P1 application (IA No.1613 of 2007) the monthly salary of the deceased was wrongly given as Rs.14,681/-. The Tribunal however dismissed the application by a cryptic order passed on 7.6.2008 holding the the reason stated for amendment is not sufficient. The claimants did not challenge that order. Instead, they filed another application on 10.7.2008 (IA No.1177 of 2008) seeking leave to amend the claim petition. The claimants attempted to put forward the revised salary which the deceased became entitled to draw with effect from 1.8.2004. By the impugned order (Ext.P3) the Tribunal dismissed the said application on the ground that an earlier WPC No.32055/09 6 application was dismissed. It is evident from the materials on record that what prompted the claimants to seek an amendment of the claim petition was a revision in the salary which the deceased became entitled to draw with effect from 1.8.2004. All that the claimants sought to introduce by way of the amendment was the plea that the salary of the deceased was revised with effect from 1.8.2004. Even in the absence of a pleading to that effect, the Tribunal would have had to enter a finding as regards the monthly salary of the deceased. The deceased was a Government servant and the salary certificate was also on record. In the light of the salary certificate which was issued by another Government servant it will be open to the claimants to contend that the salary of the deceased was revised with retrospective effect after his death and therefore the revised salary should be the basis on which the compensation should be determined. In such circumstances, I am of the considered opinion that the Tribunal should have reviewed its own earlier order and allowed I.A. No. 1177 of 2008. I accordingly hold that the decision of the Tribunal evidenced by Ext.P3 cannot be sustained. In the result, I allow the writ petition, set aside Ext.P3 and allow I.A. No. 1177 of 2008. The claimants shall carryout necessary WPC No.32055/09 7 amendments in the claim petition and shall also produce amended copies thereof within two weeks from the date of receipt of a certified copy of this judgment. In view of the fact that the claim petition was filed on 23.11.2005, the Tribunal shall endeavour to dispose of the claim petition within six months from today. **P.N.RAVINDRAN, (JUDGE)** vps WPC No.32055/09 8 WPC No.32055/09 9 WPC No.32055/09 10 WPC No.32055/09 11