National Insurance Company Ltd. v. Omanakkuttan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH WEDNESDAY, THE 3RD DAY OF FEBRUARY 2016 / 14TH MAGHA, 1937 **MACA.No. 496 of 2012** AGAINST THE AWARD IN O.P(MV)1863/2009 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM ## **APPELLANT /** 2ND RESPONDENT: NATIONAL INSURANCE CO. LTD., KOTTAYAM, REPRESENTED BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G. ROAD, ERNAKULAM, COCHIN 682035. BY ADV.SRI.E.M.JOSEPH ## **RESPONDENTS** /CLAIMANTS & 1ST RESPONDENT: 1. OMANAKUTTAN, AGED 44 KAKKATTU THAZHICHAYIL, THIRKODITHANAM P.O, MUKKATTUPADI-686 105 2. MEENA OMANAKUTTAN, AGED 40 W/O. OMANAKUTTAN, KAKKATTU THAZHICHAYIL THIRKODITHANAM P.O, MUKKATTUPADI-686 105 3. MANOJ.O.K, S/O OMANAKUTTAN KAKKATTU THAZHICHAYIL, THIRKODITHANAM P.O, MUKKATTUPADI-686 105. 4. MUHAMMED NIZAR. T.H, NIYAZMANZIL FATHIMAPURAM, CHANGANACHERRY-686 101. RR-R4 BY ADV. SRI.N.S.MOHAMMED USMAN R1-R3 BY ADV. SRI.K.A.HASHIM R1-R3 BY ADV. SRI.S.VIMAL CHANDRAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 03-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------------------ M.A.C.A. No.496 of 2012 ------------------------------------------Dated this the 3[rd] day of February, 2016 ## **JUDGMENT** ## **C.T.Ravikumar, J.** National Insurance Company Ltd., the second respondent in OP(MV)No.1863/2009 filed this appeal challenging the quantum of compensation awarded by the Motor Accidents Claims Tribunal, Kottayam in the claim petition filed by respondents 1 to 3 herein who are the legal heirs of the victim of the accident, as per the award dated 7.12.2011, passed thereon. The appellant is the insurer of the motor cycle bearing Reg.No.KL 5/H 6461 belonging to the 4[th] respondent herein/the first respondent therein, which allegedly hit against the motor cycle ridden by Sri.Manu O.K., for whose death in the said accident respondents 1 to 3 herein had filed the aforesaid claim petition for a compensation of 8,00,000/- under Section 163-A of the Motor₹ Vehicles Act (for short 'the MV Act'). The appellant assails the award raising trifold contentions. Firstly, it is contended that the Tribunal ought to have absolved the appellant from the liability to indemnify the 4[th] respondent herein/the first respondent therein, who was the owner of the offending vehicle as the accident in which Sri.Manu.O.K. lost his M.A.C.A.No.496 of 2012 2 life had occurred due to the negligence on the part of the victim himself and therefore, respondents 1 to 3, the legal heirs of Sri.Manu.O.K. are not entitled to get compensation. Secondly, it is contended that even if respondents 1 to 3 herein are entitled to compensation then also the deduction made towards personal and living expenses of the deceased is a matter that invites interference as it was effected in total disregard to the dictum laid down by the Hon'ble Apex Court in _**Sarla Verma v. Delhi Transport Corporation**_ reported in _**(2010 (2) KLT 802 (SC))**_ Though going by the said decision, taking into account the fact that the deceased Manu.O.K. was a bachelor, 50% of the income ought to have been deducted only 1/3[rd] of the same was deducted on that count while fixing the multiplicand for the purpose of computing the compensation under the head loss of dependency. Thirdly, it is contended that the Tribunal had wrongly fixed the multiplier as '17' instead of taking it as '15' for the purpose of computing compensation for loss of dependency. The learned counsel appearing for the 4[th] respondent endorsed the contentions advanced on behalf of the appellant. 2. Per contra, the learned counsel appearing for the claimants/respondents 1 to 3 herein contended that the grounds raised as above are absolutely unsustainable and the impugned award did not warrant any interference on any of such grounds. M.A.C.A.No.496 of 2012 3 3. For a proper consideration of this appeal an encapsulation of the facts is inevitable as hereunder:- On 13.04.2009 the deceased Manu.O.K. was riding motor cycle bearing Reg.No.KL-33/7240 from Mukkattupadi to Thrikkodithanam and at about 7.15 p.m. when he reached near the Panchayath Office, a motor cycle bearing Reg.No.KL 5/H 6461 ridden by the first respondent therein/the 4[th] respondent herein, from east to west i.e., from the opposite direction dashed against his motor cycle and consequently Manu.O.K. sustained injuries. He was initially taken to Government Hospital, Changanassery and from there he was referred to Medical College Hospital, Kottayam. He succumbed to the injuries on 22.04.2009 while undergoing treatment there. It is in the said circumstances that respondents 1 to 3 herein who are respectively his parents and brother had filed OP(MV).No.1863/2009 seeking a total compensation of Rs.8 lakhs alleging negligence on the part of the 4[th] respondent herein, the owner-cum-rider of the said motor cycle and also raising necessary averments to make the appellant herein liable to indemnify the 4[th] respondent. It was averred therein that the deceased was a bachelor aged 24 years and he was a welder by profession. On the side of the claimants Exts.A1 to A10 were got marked and on the side of the respondents Exts.B1 to B4 were marked. Both sides did not M.A.C.A.No.496 of 2012 4 adduce any oral evidence. The Tribunal on appreciation of the evidence on record and the arguments advanced by both sides held that the question of negligence is not at all a matter to be looked into as the application was filed under Section 163A of the M.V. Act and granted an amount of Rs.4,26,326/- as compensation with 7.5% interest from the date of petition till realisation. The appellant herein was directed to deposit the amount as awarded as the offending vehicle was then having a valid insurance coverage. It is in the said circumstances that the second respondent therein/insurer filed the captioned appeal raising the aforementioned contentions. 4. We have heard the learned counsel for the appellant, the learned counsel for respondents 1 to 3 as also the learned counsel appearing for the 4[th] respondent. 5. Admittedly, the application for compensation was filed by respondents 1 to 3 herein under Section 163A of the M.V. Act. A perusal of the impugned judgment would reveal that the appellant as also the 4[th] respondent herein had specifically raised contentions in their respective written statements to the effect that the accident had occurred solely due to the negligence of the deceased Manu.O.K. The pleadings of the respondents 1 to 3 as is evident from the claim petition and also the discussions of the same in the impugned award would M.A.C.A.No.496 of 2012 5 reveal that they had pleaded specifically that the accident had occurred solely due to the rash and negligent driving of the first respondent therein/the 4[th] respondent herein. At the same time, it is evident that the Tribunal had formulated the issues for determination as hereunder:- - (i) Whether the accident has happened due to the use of a motor vehicle and the petition is maintainable under Section 163A of the M.V. Act ? - (2) Whether the petitioners are entitled to get any amount as compensation and if so, the quantum there of ? ## (3) Relief and cost ? 6. Thus it is obvious that though the appellant/second respondent therein and the 4[th] respondent/the first respondent therein had taken up specific pleadings to the effect that the accident in which Sri.Manu.O.K. lost his life, had occurred solely due to his negligence, no issue regarding the negligence was framed by the Tribunal. At the same time, a scanning of the impugned award would reveal that the Tribunal had relied on the decisions of this Court in _**National Insurance Company Ltd. v. Malathi C. Salian**_ reported in _**2003(3) KLT 460**_ , _**United India Insurance Company Ltd v. Mohanan**_ reported in _**2011 (3) KLT 669**_ , _**Manager, National Insurance Company Ltd v. Suhara and others**_ reported _**in 2010(2) KHC 536**_ , and _**Banglore Metropolitan Transport Corporation v. Sarojamma**_ M.A.C.A.No.496 of 2012 6 reported in _**2008 (3) SN.46 (C.N.56) SC**_ , to hold the contention of the appellant herein regarding the maintainability of the claim petition on the aforesaid ground as unsustainable. Therefore, essentially the question to be considered is whether the Tribunal went wrong in not framing an issue as to whether the accident had occurred on account of the negligence on the part of the deceased ? 7. The contention of the appellant and also the 4[th] respondent is that they had specifically taken up the contention before the Tribunal, that the accident had occurred solely due to the negligence on the part of the deceased. In this context it is relevant to refer to the decisions of the Hon'ble Apex Court in _**National Insurance Company Ltd. v. Sinitha**_ reported in _**2011 (4) KLT 821 SC**_ and _**Oriental Insurance Company Ltd. v. Joseph**_ reported in _**2012 (2) KLT 132(FB)**_ . Besides the said decisions the learned counsel for the appellant has also placed reliance on the decision of a Division Bench of this Court in _**Babu v. Jose**_ reported in _**2015(1) KLT 662**_ . It is contended that when negligence on the part of the deceased who lost his life in an accident was specifically attributed by the respondents before the Tribunal in their respective pleadings to resist the claim for compensation under Section 163-A of the MV Act, the Tribunal got obligation under law to frame an issue regarding the aspect of M.A.C.A.No.496 of 2012 7 negligence and to return a finding in respect of the said issue. In short, the contention is that the Tribunal went wrong in not framing such an issue and further that respondents 1 to 3, the claimants are not entitled to get any compensation for the death of Manu.O.K. As noticed hereinbefore, the learned counsel for respondents 1 to 3 had resisted the contention on the ground that in an application under Section 163A of the M.V. Act, the question of negligence need not be looked into and therefore, the Tribunal could not be said to have committed any error of law in not framing such an issue and consequently, in granting the compensation. 8. In _**Sinitha** 's case (supra)_ the Hon'ble Apex Court virtually framed two questions for consideration viz., firstly, whether Section 163A of the M.V. Act is founded on 'fault liability' and secondly, whether it is open to the concerned party (owner or insurer) to defeat a claim raised under Section 163A of the M.V. Act by pleading and establishing any of the three faults namely 'wrongful act' 'neglect' or 'default' ? Paragraphs 13 to 16 of the said decision would reveal that Section 140 of the M.V. Act is founded under the 'no fault liability' principle and that Section 163A of the M.V. Act is founded under the 'fault liability' principle. The sum and substance of the decision in **Sinitha** 's case (supra) is that in an application under Section 163A of M.A.C.A.No.496 of 2012 8 the M.V. Act, the claimants need not plead or prove that the death or permanent disablement in respect of which the claim was made had occurred due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person, as is obvious from the very provisions under Section 163-A of the M.V Act. After holding so, the Apex Court went on to consider the question as to whether it is open either to the owner or to the insurer to defeat a claim raised under Section 163-A of the M.V. Act by establishing the claim. 9. **Sinitha** 's case (supra) assumes relevance in this context. Virtually, the Apex Court considered the question as to whether it would be open to the party concerned i.e., owner or insurer, to defeat a claim, under Section 163A of the M.V. Act, by pleading and establishing any one of the three faults namely 'wrongful act', 'neglect' or 'default'. Obviously, the pleadings filed by the appellant concerned was not before the Hon'ble Apex Court and in the said circumstances, for the purpose of determining the plea of negligence raised by the appellant/insurance company, the Hon'ble Apex Court looked into the issues framed by the Tribunal in that case. 10. The Hon'ble Apex Court observed that it would be difficult to understand the proof of the first issue framed by the Tribunal and further that a person might be 'responsible' for an act, yet he might M.A.C.A.No.496 of 2012 9 not be 'negligent'. An illustration was also given therein. The Apex Court held that even if in a case where a person may be responsible for an act, yet he may not be negligent and that negligence is a factual issue and it is to be decided and it could be established only through cogent evidence. It is also relevant to note that the Hon'ble Apex Court observed in the decision that no issue was framed by the Tribunal for adjudicating 'negligence in the accident' under reference and that from the factual aspects it is clear that the appellant/Insurance company did not seek the court's intervention on such a plea. We are of the view that, as in the case before the Hon'ble Apex Court, in this case also no specific issue was framed by the Tribunal for adjudicating the negligent aspect in relation to the accident and furthermore, neither the insurance company/the appellant nor the 4[th] respondent/the owner-cum-driver of the offending vehicle sought the Tribunal's intervention on such a plea. The Hon'ble Apex Court took note of the fact that in that case, for holding that the rider on whose death the compensation was sought for was responsible for the accident, the Tribunal had placed reliance on copies of First Information Report, postmortem certificate, scene mahazar, report of inspection of the vehicle, inquest report and final report. Even after taking note of the fact that those documents were relied on by the Tribunal to arrive at a finding that the rider was M.A.C.A.No.496 of 2012 10 responsible for the accident, the Apex Court held that no such document could constitute proof of 'negligence' at the hands of the rider, for the accident. The Apex Court further held that in the absence of concrete evidence this factual jumble would remain as an unresolved tangle. Further it was held that in a claim raised under Section 163A of the M.V. Act, the claimants have neither to take a plea nor to establish negligence. At the same time, it was held that the negligence (as also 'wrongful act' and 'default') could be established by the owner or insurance company, as the case may be, to defeat a claim under Section 163A of M.V. the Act. The Apex Court also held that in such circumstances, it is imperative for the petitioner therein viz., insurance company to have negligence pleaded and established through cogent evidence. The Hon'ble Apex Court further held that such a procedure would have afforded an opportunity to the claimants to repudiate the same and then consider the question whether the petitioner therein had discharged his onus ? 11. The Hon'ble Apex Court evidently took note of the fact that the petitioner therein/insurance company did not produce any witnesses before the Tribunal and consequently, the Tribunal arrived at the finding that in the absence of pleading and evidence it would not be possible to conclude that the onus placed on the shoulders of the M.A.C.A.No.496 of 2012 11 petitioner therein based on its case, that negligence on the part of the rider alone led to his death, taken for the purpose of defeating the claim under Section 163A of the M.V. Act was discharged successfully. Thus, it is evident that in the decision in _**Sinitha** 's case (supra)_ the Hon'ble Apex Court in unambiguous terms held that it would be open either to the owner or to the insurer to defeat a claim raised under Section 163A of the M.V. Act by pleading and establishing any of the three faults namely 'wrongful act', 'neglect' or default'. A scanning of the said decisions would reveal the position beyond any shadow of doubt that in order to succeed in a claim under Section 163A of the M.V. Act, a claimant need not plead and prove that the death or permanent disablement in respect of which the claim was made occurred due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. But, in the light of the aforesaid decisions, it can be safely concluded that in a case where either the owner/the insured or the insurer specifically raised a pleading to the effect that the accident in question had occurred solely on account of any of the faults namely 'wrongful act' 'negligent' or 'default' on the part of the victim of the accident, the party concerned has to establish such pleading by adducing cogent evidence. In such circumstances, it is incumbent on the Tribunal to formulate an issue M.A.C.A.No.496 of 2012 12 with respect to the negligence, if any, on the part of the victim whenever such a specific pleading was taken either by the insurer or the insured. Even while holding so, we are making it clear that the fact that the claimant need not plead or prove the said aspects has to be borne in mind while considering such an issue if formulated based on the specific pleading of either the insurer or the insured. In other words, even after framing an issue relating negligence at the instance of the owner or the insurer if the finding of the Tribunal on that issue is negative, based on the evidence, the application under Section 163-A of the M.V. Act has to be proceeded with for the purpose of granting an award based on the structured formula, taking into account the twin factors viz., the age group and the range of income. A Full Bench of this Court considered the said issue in _**Joseph** 's case (supra)._ It was held therein that to avoid the liability of payment of compensation, the insurer should take the defence by pleading any of the faults i.e., 'wrongful act', 'neglect' or 'default' and establish the same by adducing cogent evidence. In the light of the said decisions referred _supra_ it is evident that though for the purpose of getting compensation in a claim petition under Section 163A of the M.V. Act, the applicant need not plead and prove that the death or permanent disablement in respect of which the claim was made occurred due to any wrongful act or neglect M.A.C.A.No.496 of 2012 13 or default of the owner of the vehicle or vehicles concerned or of any other person, but, to defeat a claim under Section 163A of the M.V. Act, either the owner or the insurer has to plead and establish any of the three faults namely, 'wrongful Act', 'negligent' or 'default' through cogent evidence. 12. Now, we will consider the applicability of the decision of the Division Bench of this Court in _**Babu** 's case (supra)_ . The learned counsel appearing for the appellant drew our attention to paragraph 5 thereunder. A close scrutiny of the judgment in _**Babu** 's case (supra)_ would reveal that in that, the Tribunal refused to grant compensation and dismissed the claim petition filed under Section 163-A of the M.V Act. Essentially, the appellant therein raised the contention that in an application under Section 163A of the M.V. Act, the question as to whether the driver of the offending vehicle was negligent or not, need not have been formulated as an issue since that could not be a decisive factor when two vehicles are involved in an accident and the victim was only a passenger or a driver in one of the vehicles. It is not discernible from the said decision as to whether any of the respondents who resisted the claim for compensation specifically raised the contention that the accident in question had occurred solely due to any of the three faults viz., wrongful act, neglect or default from the part of the victim M.A.C.A.No.496 of 2012 14 concerned. That apart, it is to be noted that in that case the claimant/appellant was travelling in an autorikshaw belonging to him and driven by the driver engaged by him. That autorikshaw colluded with another motor vehicle. The claim petition ultimately culminated in the said appeal filed by the appellant therein who was only a passenger under Section 163-A of the M.V Act. In such circumstances, even if the person who had driven the autorikshaw or the driver of the other vehicle in which the appellant/injured travelled was negligent, could not have been raised as a ground for defeating claim of the appellant. In the said circumstances, such aspects were inconsequential and therefore, there was absolutely no scope for taking up a contention that the accident involved in that case had occurred owing to the negligence on the part of the driver of the other vehicle. It was in that context that this Court held in paragraph 5 thereunder thus:- _“5. When two vehicles are involved in an accident and the passenger or driver of one vehicle makes an application invoking S.163A of the Act as against the driver, owner and insurer of the other vehicle, no issue relatable to the negligence at the hands of the driver of other vehicle would arise for decision. In such a situation, this is the trite legal principle that emanates out of the “no fault” doctrine enshrined in S.163A of the Act. Even if negligence is attributed through pleadings in an application under S.163A of the Act, that question goes into oblivion when the application for compensation is under S.163A. This is the law.”_ M.A.C.A.No.496 of 2012 15 13. Certainly, in that case, taking into account the fact that no negligence could have been attributed to the appellant/injured who was sitting inside the autorikshaw in the passengers seat, the question whether negligence was attributed or proved against the driver of the other vehicle was not having any relevance at all taking into account the fact that it was the injured passenger in the autorikshaw filed application for compensation under Section 163A of the M.V. Act. True that, in such circumstances, even in an application under Section 163-A of the M.V. Act by the driver of one vehicle as against the driver, owner and insurer of the other vehicle, no issue relatable to the negligence at the hands of the driver of other vehicle would arise for consideration as held by the Division Bench in **Babu** 's case (supra). But at the same time it is to be noted that in the light of the decision of the Honourable Apex Court in _**Sinitha** 's case (supra)_ and the Full Bench decision of this Court in _**Joseph** 's case (supra)_ though a claimant need not plead and prove negligent aspect on the driver of the offending vehicle to succeed in a claim petition filed under Section 163-A of the M.V. Act converse position is possible. In other words, to defeat the claim it would be legally permissible either for the insured or the insurer to avoid the liability by pleading and establishing that the death or permanent disablement in respect of which the claim was made occurred solely due M.A.C.A.No.496 of 2012 16 to any of the three faults of the victim concerned. Section 163-A (2) reads thus :- ## _**“163A Special provisions as to payment of compensation on structured formula**_ ## _(1) xxxxxxxx_ _(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.”_ A careful scanning of Section 163-A(2) of the M.V. Act would reveal that the said provision specifically dispense with the requirement to plead and establish that the death or permanent disablement in respect of which the claim made, had occurred due to 'wrongful act' or 'neglect' or 'default' of the owner of the vehicle or vehicles concerned or any other person. At any rate, in the light of **Sinitha** 's case (supra) it cannot be said that such rights are not available to the owner of the vehicle or its insurer for defeating a claim under Section 163-A of the M.V. Act. 14. In the light of the discussions as above, we will have to consider the question whether in this case the appellant/second respondent insurance company had taken up any specific pleading of negligence on the part of the deceased Manu.O.K. as the cause of the accident and succeeded in establishing the same through cogent M.A.C.A.No.496 of 2012 17 evidence. 15. In this case, evidently, the appellant/second respondent therein as also the 4[th] respondent/1[st] respondent in their respective written statements filed before the Tribunal specifically pleaded that the accident in question had occurred solely due to the negligence on the part of the deceased Manu.O.K. In such circumstances, what is to be looked into is whether they had adduced any evidence to establish the same and if so, whether they had succeeded in establishing the same through cogent evidence. Evidently, to establish the same they have produced Ext.B1 award and Ext.B3 chargesheet. It is only appropriate to refer to the pleadings of the appellant as also the 4[th] respondent herein/the first respondent regarding the negligence on the part of the deceased Manu.O.K. made in a bid to defeat the claim for compensation of respondents 1 to 3 herein. A perusal of the written statement filed by the first respondent therein/the 4[th] respondent herein would reveal that he took up the contention that the accident had occurred due to the negligence of the deceased. Further, it is stated therein that in connection with the accident a crime was registered against Manu.O.K. at Thrikkodithanam Police Station and later, consequent to his death, an abated charge was filed. M.A.C.A.No.496 of 2012 18 16. The claim petition filed by him as O.P.(M.V)No.117/2011 seeking compensation for the injuries sustained in the said accident alleging negligence against the accused was settled by the second respondent therein viz., the appellant herein in the Lok Adalath. The appellant herein filed the written statement admitting the fact that motor cycle with Reg.No.KL 5/H 6461 belonging to the 4[th] respondent herein was validly insured with it and that the 4[th] respondent herein was not having a valid driving licence for riding the motor cycle at the relevant time and that the accident had occurred due to the negligence of the deceased and the deceased was the accused in Crime No.118/2009 of Thrikkodithanam Police Station registered in connection with the aforesaid accident. The deceased was not wearing a headgear at the time of the accident. 17. Ext.B1 is an award passed by the Lok Adalath in the aforesaid claim petition based on a settlement arrived at between the parties viz., the 4[th] respondent and the appellant. Needless to say that in the said circumstances, evidently, the Tribunal had no occasion to consider the question whether the accident in question in which the 4[th] respondent sustained injury had occurred solely on the negligence on the part of the deceased Manu.O.K. Evidently, that aspect was not at all gone into and the award was passed by the Lok Adalath solely taking M.A.C.A.No.496 of 2012 19 into account the settlement arrived at between the parties. Hence, the same could not have been looked into at all for the purpose of holding the question of negligence against the deceased. In the said circumstances, the same could not have been relied on against the petitioners-respondents 1 to 3 herein to defeat their claim under Section 163A of the M.V. Act in respect of the death Sri.Manu.O.K. As regards the other document produced for the said purpose viz., Ext.B3 chargesheet in crime No.118/2009, certain important aspects have to be looked into. Evidently, immediately after the accident the 4[th] respondent who is the claimant in question went to the Police station and lodged a statement, based on which an FIR was registered at Thrikodithanam Police station in respect of the accident in question. Evidently, subsequent to the death of Manu.O.K. on 22.04.2009 an abated report viz., Ext.B3 abate charge was filed before the court. True that, it is a final report within the purview of section 173(2) of the Code of Criminal Procedure. No oral evidence was adduced with respect to the same. The fact is that FIR was registered in Crime No.118/2009 of Thrikkodithanam Police station evidently, based on the FIS lodged by the 4[th] respondent who is the owner-cum-rider of the motor cycle involved in the accident. Manu.O.K. was the other person who allegedly rode the other motor cycle involved in the accident at the relevant time M.A.C.A.No.496 of 2012 20 and he was immediately taken to the hospital and ultimately, he died from there while undergoing treatment as an inpatient. The investigating officer who conducted investigation in Crime No.118/2009 was not examined. No other eye witness was also examined. All the aforesaid circumstances have to be borne in mind while considering the question whether the appellant established negligence on the part of deceased Manu.O.K. as the reason for the accident that led to his death, by cogent evidence. The word 'cogent' means compelling or convincing. It cannot be said or believed that the Hon'ble Apex Court in the decision in **Sinitha** 's case (supra) simply coined the word 'cogent' while holding what should be the degree of evidence required to be adduced to defeat a claim under Section 163-A of the M.V. Act, by the owner of a vehicle or its insurer. Evidently, it has to be said that it was done with a purpose regarding the fact that Section 163-A is a social security provision enacted to mitigate the hardships of claimants in motor vehicle accident cases and in a bid to achieve the purpose the legislature has specifically provided that the claimant shall not be required to plead and prove the aforesaid three faults viz., wrongful act, neglect or default of the owner of the vehicle or vehicles concerned or any other person and therefore, prescribing a high degree of evidence for defeating such a claim. We have already found that the Hon'ble M.A.C.A.No.496 of 2012 21 Apex Court held in _**Sinitha** 's case (supra)_ that after taking up a plea of negligence to defeat a claim under Section 163A of the M.V. Act the same has to be established by cogent evidence. In that case before the Apex Court to prove that aspect copies of FIR, postmortem report, scene mahazar, report of inspection of vehicle, inquest report and final report were produced by the respondents before the Tribunal. Even then, the Hon'ble Apex Court held that neither of the appellant nor the respondents could establish proof of negligence. We have already adverted to the evidence available in this case. No doubt, neither Ext.B1 nor Ext.B3 would be sufficient to convincingly establish negligence on the part of the deceased Manu.O.K. In short, Exts.B1 and B3 cannot constitute cogent evidence to defeat the claim of respondents 1 to 3 herein under Section 163A of the M.V. Act. For the foregoing reasons and in the circumstances we see no reason to hold that the Tribunal had committed any error or illegality in entertaining the claim of petition filed by respondents 1 to 3 herein under Section 163 A of the M.V. Act. 18. Evidently, the other contention of the appellant herein is that the Tribunal had gone wrong in arriving at the amount to be deducted towards personal and living expenses of the deceased while fixing the multiplicand for the purpose of computing the compensation under the head loss of dependency. It is the contention that it was done M.A.C.A.No.496 of 2012 22 with giving due regard to the decision in **Sarla Verma's** case (supra). Yet another contention has been raised with regard to the fixation of monthly income for the aforesaid purpose. True that, respondents 1 to 3 viz., the applicants contended that the deceased Manu.O.K. was a welder by profession and he was earning Rs.3,330/- per month. To substantiate the said contention they have produced Ext.A8 dated 06.05.2007 issued from Aiswarya Engineering Works. But at the same time the claimants did not examine the person who issued the said certificate and in fact, no other competent witness was also examined to prove the same. In short, despite the production of Ext.A8 the claimants had not taken any steps to legally brought the same on record to prove the income. In the light of the decision in **Ponnumany @ Krishnan and another v. Mohanan and others** reported in **AIR 2008 SC 2014** notional fixation of the income for calculation purpose when the claimant failed to establish the income cannot be said to be illegal warranting appellate interference, even in an application filed under Section 163-A of the M.V. Act. In such circumstances, we are of the considered view that the Tribunal is justified in fixing the income of the deceased notionally at Rs.3,000/-. We do not find any reason to interfere with the fixation of the monthly income. Now, we will consider the other contention raised in the light of the decision of the Hon'ble M.A.C.A.No.496 of 2012 23 Apex Court in _**Sarla Verma's** case (supra)._ Deceased Sri.Manu.O.K. was a bachelor aged 24 years and 50% of the income should have been deducted towards his personal and living expenses. It is also the contention of the appellant that the Tribunal went wrong in fixing the multiplier as `17' and according to him, the Tribunal ought to have taken the multiplier, in the light of the decision in **Sarla Verma** 's Case (supra), as `15'. Ext.A6 is the copy of the SSLC book of the deceased and as per the same he was aged only 23 years at the time of the accident. But, the question is whether calculation of compensation under the head loss of dependency is necessary rather, permissible in the case on hand when the application is filed under Section 163-A of the Act. Another question also crops up for consideration, in view of the undisputed and indisputable factual position obtained in this case, i.e., whether 50% of the income should be deducted towards personal and living expenses considering the marital status of the deceased as 'bachelor'. For deciding these questions the crucial aspect that is to be borne in mind is that admittedly, the claim petition was filed under Section 163-A of the M.V. Act and the award was passed by the Tribunal fully realising the said position. Still, the Tribunal adopted the multiplier-multiplicand method to assess compensation for loss of dependency. The Tribunal ought not have gone into those aspects M.A.C.A.No.496 of 2012 24 especially when it had correctly took note of the fact that the claim petition was filed under Section 163-A of the M.V. Act. However, Ext.A6 is relevant for the purpose of identifying the age group of the victim from the different age groups given in the second schedule. We have already held that the notional fixation of the monthly income as ₹3,000/- requires no interference. Since the age of the appellant is `23 years' he belongs to the age group `20-25 years' and the annual income range is 36,000/-. ₹ In such circumstances, going by the second schedule, the corresponding figure given in thousands is `648'. Going by the note thereunder 1/3[rd] of the same is to be deducted to find out the amount payable for death. On deduction, the amount payable is ₹4,32,000/-. In addition to that towards Medical Expenses, as per bills, the Tribunal granted an amount of 13,836/-. Towards funeral₹ expenses 2,000/- was granted and towards `loss of estate' an amount₹ of ₹2,500/was granted. Hence, total amount payable is Rs.4,50,336/- (₹4,32,000+₹13,836+₹2000+₹2500). The Tribunal has already granted an amount of 4,26,336/-. Hence, the balance amount₹ to be paid as per the structured formula is 24,000/-.₹ 19. We have already found that there is absolutely no merit in the said contentions regarding wrong adoption of multiplier and that the deduction ought to have been made in view of the dictum laid down by M.A.C.A.No.496 of 2012 25 the Apex Court in **Sarla Verma** 's case (supra) while calculating compensation for loss of dependency. In a claim petition under Section 163-A the compensation has to be ascertained based on the structured formula. Normally, when that be the position, in view of our findings hereinbefore, the appeal is to be dismissed. But, the question to be decided in this case is whether this Court will be justified in dismissing the appeal without considering the question whether the claimants/respondents 1 to 3 are entitled to get 24,000/- towards₹ enhanced compensation in the light of the facts revealed from the evidence on record and based on our discussions and in view of the fact that the they were denied actual amount of compensation in terms of the structured formula. 20. True that respondents 1 to 3 did not prefer any appeal or take up a cross objection in the captioned appeal. However, in view of the provisions under Order XLI Rule 33 of the Code of Civil Procedure and the decisions of the different High Courts we are of the view that it is only just and proper to invoke the discretionary power under the aforesaid provision. Order XLI Rule 33 Reads thus: _“_ _**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_ M.A.C.A.No.496 of 2012 26 _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 or objection [and may, where there have been decrees in crosssuits 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]._ _Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”_ ## 21. In _**Thiruvalluvar Transport Corporation Ltd. v.**_ _**Sakunthala and others**_ reported in _**2001 ACJ 1322**_ the High Court of Madras held that even in an appeal under Section 173 of the M.V. Act the provisions under Order XLI Rule 33, CPC would be applicable and the appellate Court could enhance the compensation even in the absence of an appeal or cross objection in the appeal filed by the owner of the offending vehicle. In _**Tamil Nadu State Transport Corporation (Kumbakonam Division III) Ltd. Through its Managing Director, Karaikudi Town v. Vasantha and others**_ reported in _**2006 (2) TAC 1004(Mad)**_ it was held that nothing will preclude the appellate court from granting a deserving relief in appropriate circumstances having regard to the powers vested under Order XLI Rule 33 as also under Section 151 CPC. In _**Himachal Road Transport Corporation v.**_ M.A.C.A.No.496 of 2012 27 _**Saroj Devi and others**_ reported in _**2002 ACJ 1146**_ it was held that the appellate court is not precluded from passing an order in the light of the provisions under Order XLI Rule 33, CPC in circumstances which it considers just without there being any appeal or cross objection. In _**Jay Singh v. Lal Muni Devi and another**_ reported in _**2001 ACJ 1423**_ the High Court of Patna held that under Order XLI Rule 33, CPC the appellate court could make appropriate orders to do complete justice between the parties and for the purpose of giving just compensation. In the light of the aforesaid decisions rendered by the various High Courts as also in the light of the provisions under Section 151 CPC as also Order XLI Rule 33, CPC we are of the view that we would be failing in dispensation of justice, if we are not granting additional compensation of 24,000/- to respondents 1 to 3 to which they are₹ entitled in terms of the structured formula under the second schedule. 22. In the said circumstances even while holding that this appeal filed by the second respondent in OP(MV) No.1863/2009 is devoid of any merit invoking the power under Section 151 CPC and under Order XLI, Rule 33, CPC we hold that respondents 1 and 2 are eligible to receive an additional compensation of 24,000/-. In other₹ words, the impugned award will stand modified to that effect. The appellant is directed to deposit the enhanced amount of 24,000/-.₹ M.A.C.A.No.496 of 2012 28 Needless to say that if under the impugned award any amount is remaining to be paid it shall also be paid, within a period of three months from the date of receipt of a copy of this judgment. In the facts and circumstances of the case, we do not think it appropriate to mulct the liability to pay interest on the appellant for the enhanced amount. Resultantly, the appeal is disposed as above. Sd/- **C.T.RAVIKUMAR, JUDGE** Sd/- **MARY JOSEPH, JUDGE** vs