Rebsil v. Kunhammed Haji, Abdul Rasheed and United India Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY ,THE 15TH DAY OF FEBRUARY 2019 / 26TH MAGHA, 1940** **MACA.No. 287 of 2015** **AGAINST THE AWARD IN O.P.(M.V.) NO.381/2004 OF THE PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE DATED 05-11-2008** ## **APPELLANT/PETITIONER** **: REBSIL, AGED 20 YEARS, S/O.ABDULLA KOYA, CHOOLAMPADAM, (P.O.) KOLATHARA, KOZHIKODE. BY ADV. SMT.K.V.RASHMI** ## **RESPONDENTS/RESPONDENTS :** |**1**|**KUNHAMMED HAJI, S/O.THARUVAYI,**| |---|---| ||**THOTTOLICHALIL HOUSE, (P.O.) CHEKKIAD,**| ||**VADAKARA, KOZHIKODE-673509.**| |**2**|**ABDUL RASHEED,**| ||**MEETHALE KANDOTH HOUSE (P.O.), CHEKKIAD,**| ||**PARAKKADAVU, KOZHIKODE-673509.**| |**3**|**UNITED INDIA INSURANCE CO.LTD.,**| ||**BRANCH OFFICE, KALLINGAL BUILDING,**| ||**MAIN ROAD, VADAKARA-673001.**| ||**BY ADV. SRI.V.JAYAPRADEEP**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.No. 287 of 2015** **2** ## **JUDGMENT** This appeal is preferred against the award in O.P.(M.V.) No.381 of 2004 of the Principal Motor Accidents Claims Tribunal, Kozhikode by the injured. Appellant sustained injuries in a motor accident on 26.03.2003 and he preferred a claim petition under Section 166 of the Motor Vehicles Act, 1988. The Motor Accidents Claims Tribunal awarded an amount of Rs.3,000/- (Rupees Three Thousand only) as compensation and directed the insurer to satisfy the award and recover the amount the amount from the owner of the vehicle as per law. Being aggrieved by that, the injured preferred this appeal. 2. It would be relevant and useful to mention the facts leading to the accident. On 26.03.2003 while he was standing on the side of the road, a jeep KL-11/E-2887 came in a rash and negligent manner knocked down him, as a result he sustained serious injuries. Immediately he was removed to hospital. The injured was a minor at the time of accident and who was represented by his father in the lower court. 1[st] respondent admitted the ownership of the vehicle. The insurer admitted the insurance coverage of the **MACA.No. 287 of 2015 3** jeep, but contended that the driver was charge sheeted under Section 3(1) of the Motor Vehicles Act. Claimant did not adduce any oral evidence, but his documents were marked as Exts.A1 and A2. 3. Learned counsel appearing for the appellant contended that the claimant sustained serious fracture to femur. He was admitted Koya's Hospital, Feroke and underwent operation there. Knail was inserted at the fracture site subsequently it was removed under local anesthesia. Just amount was not awarded by the Tribunal. 4. Adv. Jayapradeep, the learned counsel appearing for the insurer contended that no appeal shall lie against any award of a Claims Tribunal under Section 173(2) of the Motor Vehicles Act, 1988 if the amount in dispute in the appeal is less than ten thousand rupees. This court cannot ignore the legislative wisdom and policy with regard to filing of appeals, as the right of appeal is not a vested right but it is a creature of the statute. Hence this appeal is not maintainable. 5. Section 173 of the Motor Vehicles Act, 1988 reads as follows: **MACA.No. 287 of 2015** **4** “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 entrained 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”. According to the Section 173(1), 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 subject to the provisions of sub-section 2 of Section 173 of the Act. Section 173(2) would show that 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. 6. Section 173 of the Motor Vehicles Act 1988 permits any person aggrieved by an award to prefer an appeal to the High Court subject to the provision of sub-section (2). Therefore the 'judgment' or 'award' is appealable against the verdict of the Motor Accident Claims Tribunal provided Rule 396(2) of the Kerala Motor Vehicles Rules 1989, **MACA.No. 287 of 2015 5** requires the memorandum to be accompanied with certified copy of the award. The High Court has the power to scrutinize an appeal under Section 173 of the Motor Vehicles Act 1988 at the threshold to satisfy itself that there is a prima facie case made out or to dismiss the appeal if such prima facie case is not made out. The Motor Vehicles Act is aimed to provide relief by way of compensation to the injured or the legal representatives of the deceased in the given situation. The exercise of power by the High Court should not be exerted in order to circumvent the statutory provision contained in a particular act. Sub section (2) of Section 173 clearly lays down that no appeal shall lie against any award of a Motor Accident Claims Tribunal if the amount in dispute in the appeal is less than ten thousand. The 'amount in dispute' means the amount actually in dispute which is the 'amount awarded' by the tribunal without interest and cost. 7. Every words which the legislature used under Section 173 of the Act have to be given its proper and effective meaning, as the Legislature uses no words without purpose and meaning. The theory that the statute **MACA.No. 287 of 2015 6** must be read as a whole is equally applicable to different parts of the same section. The section must be construed as a whole whether or not one of the parts is a saving clause or not. Apex court in **The State of Bihar v. Hira Lal Kejriwal & Anr. (AIR 1960 SC 47)** held that “it is not permissible to omit any part of it, the whole section should be read together”. In this context, it is better to refer the Division Bench decision of this court reported in **Oriental Fire and General Insurance Co. Ltd v. Narayani Amma (1984 KLT 410),** which reads as follows: “On the words "the amount in dispute in the appeal" we might refer to **State of Maharashtra v. Mishrilal Tarachand Lodha & Others, AIR 1964 SC 457.** In that case the respondent defendant filed an appeal in the High Court valuing the claim for purposes of jurisdiction and court fee at the principal amount in the plaint but ignoring the future interest decreed by the Trial Court. The question before the Supreme Court was whether this was correct and in accordance with the expression "amount or value of the subject matter in dispute" in Art.1 of schedule I of the Bombay Court Fees Act, 1959. The appeal memorandum did not deal with the award or rate of pendente lite interest. The amount on this account, the Supreme Court held, did not form the amount of the subject matter in dispute and that what the respondent did was correct. It is true that the Supreme Court was concerned with the amount of court fee but the decision helps to understand the content of the expressiion "amount in dispute". In the course of the decision the Supreme Court referred to a Privy Council case, Doorga Doss Chowdry v. Ramanauth Chowdry, 8 Moo. Ind. Appeal 262, which held that costs of a suit are not part of the subject matter in dispute in the relevant provisions relating to the grant of leave by the High Court to appeal to the Privy Council. The Privy Council Said: ".......if they were allowed to be added to the principal sum claimed, it would be in the power of every litigant, by **MACA.No. 287 of 2015** **7** swelling the costs, to bring any suit up to the appealable value." After quoting this passage the Supreme Court commented: "It may also be said that a litigant's conduct may lead to a protracted trial and consequently to the increase in the amount of pendente lite interest which may raise the value of the subject matter in dispute in appeal to the appealable value".” A reading of the Section 173(2) shows that if the amount in dispute in the appeal is less than ten thousand rupees, no appeal shall lie and it does not include interest and cost. Apex court in **Mishrilal Tarachand Lodha'** case (supra), held that the amount in dispute in the appeal is the amount actually in dispute, which does not include future interest. If that be the position, whatever be the interest and cost added in a case for preferring an appeal and bring any award up to the appealable value, which may lead to protracting the proceedings for preferring an appeal and consequently increase the amount for taking jurisdiction to prefer an appeal, which is against the provisions of Section 173(2). If such contention was permitted to be taken under Section 173(2), it would be inconsistent with the legislative object introduced under that Section. If such an interpretation is given under Section 173(2) of the Motor Vehicles Act, 1988, it would be a proceeding equal to **MACA.No. 287 of 2015 8** increasing the jurisdiction, ignoring the statutory restriction provided therein. In order to avoid such confusion in the statute, it has consequently given a check and balance for preferring an appeal. 8. The question under challenge is, if the award amount inclusive of costs and interest accrued till the date of award comes to ten thousand rupees or above, whether an appeal would lie. If such principle is adopted, it is against the legislative expression provided under Section 173(2). In an appeal under S. 173 by a person liable under the award of the Tribunal, he would be entitled to challenge the compensation fixed under S.168, the order for interest, costs, compensatory costs, etc. There is no dispute for challenging the rate of interest or cost by filing appeal under Section 173(1) of the Motor Vehicles Act. But, the phrase "the amount in dispute in the appeal" include the amounts granted as part of an award. The amount in the appeal for the purpose of S. 173(1), would be the amount a person is liable to pay under the award. This indicate the pecuniary limit of the person for preferring an appeal alone as stated in **Narayani Amma** 's case (supra), not otherwise. **MACA.No. 287 of 2015 9** Therefore, the value of subject matter disputed in appeal to the appealable value is the 'award amount' excluding 'interest' and 'cost'. 9. If the victim sustains serious injuries and permanently disabled in a motor accident, he is entitled to get just amount as compensation. If the Tribunal, ignoring the injuries, awards a meagre amount as compensation, the statutory restriction provided under Section 173(2) is not a ground to admit this appeal. Apex court in **Nagappa Mahadev Doddaamani v. New India assurance company Ltd and Another (1998 9 SCC 271)** held that: “It is settled that in appeal interference is made with quantum of compensation only on the ground of inadequacy or the same being too excessive, as the case may be.” It is settled law that in appeal interference can be made with quantum of compensation only on the ground of inadequacy or the same being too excessive, as the case may be. In this case, the appellant sustained serious fracture and the Tribunal awarded Rs.3,000/- as compensation, obviously, the illegality committed by the Tribunal is a ground to interfere in this appeal ignoring the **MACA.No. 287 of 2015 10** statutory limits provided under Section 173(2) of the Motor Vehicles Act, 1988. In view of **Nagappa's** case (supra) the High Court can admit such appeal and exercise its discretion for awarding just amount as compensation. In the circumstance, the award of the Tribunal is set aside and the matter is remitted to the Tribunal for fresh consideration. Both parties are directed to appear before the Principal Motor Accidents Claims Tribunal, Kozhikode on 28.03.2019. The Tribunal is directed to ascertain the injury and give opportunity to both parties to adduce fresh evidence and dispose the matter as per law within six months from the date of their appearance. NS Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge