Subramanyan S/o Kuttappan v United India Insurance 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** **MONDAY, THE 22ND DAY OF AUGUST 2016/31ST SRAVANA, 1938** **MACA.No. 2232 of 2011 () -------------------------** **AGAINST THE AWARD IN OPMV 1607/2005 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL,PERUMBAVOOR DATED 26-07-2011** **APPELLANT(S)/PETITIONER IN O.P.(MV):1607/2005:** **---------------------------------------------** **SUBRAMANYAN S/O.KUTTAPPAN,AGED 58 YEARS,GREESHMA,CANAL ROAD, SUBASH LANE,U.C.COLLEGE.P.O,ALUVA-2.** **BY ADVS.SRI.REJI GEORGE SMT.ANUPAMA JOHNY SRI.GOPAKUMAR G. (ALUVA) SMT.JAISY MATHEW** **RESPONDENT(S)/(RESPONDENT NO:3 IN O.P.(MV):1607/2005):** **------------------------------------------------------** **UNITED INDIA INSURANCE CO.LTD. K.G.TOWERS,IST FLOOR,THRISSUR ROAD,ANGAMALY-683572.** **BY ADVS. SRI.THOMAS MATHEW NELLIMOOTTIL SRI.JOHN JOSEPH VETTIKAD** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 22-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.No.2232 of 2011 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22[nd] day of August, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The main question posed for consideration in this appeal is whether the appellant falls within the expression 'person aggrieved' employed under Section 173 of the Motor Vehicles Act (in short 'M.V.Act')? Section 173 (1) of the M.V. Act deals with the provision for appeal to the High Court by 'a person aggrieved' by an award passed by a Claims Tribunal. Such a consideration has become inevitable since the appeal is filed by the appellant/claimant against an award whereby and whereunder compensation in excess of the claim was granted and seeking enhancement of the quantum of compensation. Shorn of details the facts necessary for deciding the said question are as follows:- The appellant sustained injuries in a motor vehicle accident that occurred on 6.6.2005 at about 11 a.m. He was then driving his ambassador car bearing registration No.KLK 4444 through Paliyekkara – Pudukkad road. His wife and friend were his fellow M.A.C.A.No.2232 of 2011 2 passengers. On their way to Amala Institute of Medical Sciences, Amala Nagar, Thrissur they reached near Manalippalam and then the offending vehicle which is a mini lorry bearing registration No.KL-7/AG-9433, driven by the 1[st] respondent came from the opposite direction, dashed against their car. As a result, the appellant and the others sustained injuries. The appellant who was immediately taken to Thrissur Heart Hospital remained there as an inpatient there from 6.6.2005 to 20.6.2005. Thereafter, he continued treatment as an inpatient at St. James Hospital, Chalakudy from 13.9.2005 to 24.9.2005 and then at Cochin Spine Hospital from 8.1.2006 to 18.1.2006. It is in the said circumstances that he filed the above mentioned claim petition for compensation under Section 166 of the M.V.Act. limiting his claim to Rs.4 lakhs. 2. Evidently, to sustain the said claim the appellant got himself examined as PW1 besides getting examined Doctor Pathrose as PW2. On his side Exts.A1 to A18 were got marked. On the side of the respondents no oral evidence was adduced and the copy of the policy in respect of the M.A.C.A.No.2232 of 2011 3 aforesaid mini lorry was marked as Ext.B1. After evaluating the evidence on record and appreciating the rival contentions the Tribunal passed the impugned award for a total compensation of Rs.4,30,368/- alongwith interest and costs. Needless to say in terms of Rule 397 (1) of the Kerala Motor Vehicles Rules, 1989 the advolerm fee for Rs.4 lakhs alone was paid by the appellant and therefore the Tribunal ordered for realisation of court fee for the excess amount awarded viz., Rs.30,368/- i.e. Rs.304/-. In this appeal preferred against the said judgment and award passed by the Tribunal in O.P.(M.V.)1607/2005 the petitioner seeks enhancement of the quantum of compensation awarded as above. 3. We have heard the learned counsel for the appellant and the learned counsel appearing for the respondent. 4. The contention of the learned counsel for the appellant is that the fact that the appellant confined his claim to Rs.4 lakhs and the Tribunal granted compensation more than the amount thus claimed cannot be a fetter to his M.A.C.A.No.2232 of 2011 4 right to prefer an appeal under Section 173(1) of the M.V.Act. The learned counsel submitted that in fact, the claim petition would reveal that the appellant's own assessment of compensation was Rs.5,37,500/- though he limited the claim to Rs.4 lakhs. It is therefore, contended that according to the appellant he is entitled to get more amount by way of compensation than the amount now granted. It is also contended that the Tribunal has failed to compensate the appellant adequately under different heads and hence he should be considered as 'a person aggrieved' for the purpose of Section 173 of the M.V.Act. 5. Per contra, the learned counsel for the respondent submitted that since the appellant was granted compensation in excess of his claim before the Tribunal the appellant cannot fall within the expression 'person aggrieved' and since he seeks for enhancement of compensation evenafter obtaining compensation more than the claim he is not entitled to prefer an appeal against an award in terms of Section 173(1) of M.V. Act. It is such contentions that necessitated consideration of the aforesaid M.A.C.A.No.2232 of 2011 5 ## question. ## 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 of fifty percent 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.” 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 on wrongfully refused him something or wrongfully affected of his title to M.A.C.A.No.2232 of 2011 6 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 dealing with the revisional power under Section 90 of the M.V.Act. 7. The learned counsel appearing for the appellant 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 M.A.C.A.No.2232 of 2011 7 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 and therefore, while adjudicating the just compensation under Section 168 of the M.V. Act the powers of the Claims Tribunals are not fettered to go into the claims in detail and also to grant compensation in excess of what is actually claimed. In otherwords, it would be open to the Tribunals to grant compensation in excess of the amount claimed if in its opinion the just compensation commensurating with the injuries sustained is more than the amount actually claimed. Solely seeking enhancement of compensation without showing that by the legal decision he had suffered a legal grievance or in otherwords, as held in Binu Chacko's case that he was deprived of or refused something to which he is legally entitled to, how can an appeal be laid in such circumstances when the claimant was granted compensation in excess of his claim. Certainly, the mere fact that he is dissatisfied with the quantum of compensation granted eventhough in excess of his claim or M.A.C.A.No.2232 of 2011 8 he now feels that he is entitled to more, cannot be a reason to treat him as 'a person aggrieved' for the purpose of Section 173 (1) of the M.V. Act. The same is the position regarding the appellate court. If in an appeal the appellate court finds that the just compensation is more than the amount actually granted by the Claims Tribunal it would empower the appellate court to grant amount of compensation in excess of the amount actually claimed. In that context it is only relevant to refer to a decision of the Hon'ble Apex court in **Rajesh v. Rajbir Singh [2013 (3) KLT 89 (SC)]** . In paragraph 19 of the said judgment 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.” 8. Suffice it to say that in the light of the dictum laid down in Rajesh's case it would be open to the Tribunal or a court and virtually it is the duty of the court to properly M.A.C.A.No.2232 of 2011 9 award just and equitable, fair and reasonable compensation and if necessary ignoring the claim made in the application for compensation. Obviously, it is in view of the said exposition of law that the Tribunal as per the impugned award granted more amount of compensation than claimed. 9. But the question emerged for consideration is different. How can a petitioner in 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 the Section 173 of the M.V.Act. The meaning of the term 'amount in dispute in the appeal' was considered by a Division Bench of this Court in Oriental Fire and Genl. Insurance Co. Ltd v. Narayani Amma reported in 1984 KLT 410. No appeal will lie against an award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees how can it be said that an appeal challenging the quantum of compensation will lie against an award of a Claims Tribunal when the amount assessed thereunder is more than the amount claimed, by the claimant in the absence of any other grievance on a M.A.C.A.No.2232 of 2011 10 legal issue. There can be no doubt that merely because a claimant has actually made an own assessment of compensation to which he is entitled and then limited the claim below such assessment, the amount to which the claim is limited and for which court fee has been paid alone can be taken as the amount claimed. In such circumstances, the claimant cannot be permitted to fallback on his own original assessment, ignoring the fact that he had then limited the claim, to consider him as 'a person aggrieved'. 10. As noticed hereinbefore in this case the appellant limited his claim to Rs.4 lakhs and the Tribunal after considering all the relevant factors granted compensation in excess of the same to be precise, Rs.4,30,368/-. Though the appellant attempt to canvass the position there exists dispute regarding the assessment of permanent disability as according to him his disability is more 20% as assessed by the Tribunal. It is to be noted that the appellant had not adduced evidence to establish that the injures sustained in the accident resulted in permanent disability. The Tribunal M.A.C.A.No.2232 of 2011 11 took note of the nature of the injuries and assessed the permanent disability of the appellant as 20% and granted compensation for disability. In the said circumstances, legally the petitioner could not have any grievance on that issue. In such circumstances, the submission of the counsel for the appellant that an application has now, been filed in this appeal to refer the applicant to a Medical Board deserves to be rejected especially, taking note of the fact that it is filed after more than 10 years since the accident. The claim petition was filed by the appellant in the year 2005 claiming compensation for the injuries sustained by him in an accident that occurred on 6.6.2005. An application filed with such a prayer, after more than a decade, especially in the circumstances mentioned hereinbefore deserves no consideration and consequently, it is dismissed. The attempt on the part of the appellant to get the claim petition amended as relates claim amount also cannot be allowed at this distance of time, at the appellate stage, in the above circumstances. As noticed hereinbefore, the claim petition was filed in the year 2005. Obviously the M.A.C.A.No.2232 of 2011 12 claim petition was disposed of as per the impugned judgment and awarded only on 26.7.2011. There is absolutely no case for the appellant that during the pendency of the claim petition he filed an application to bring in an amendment as relates, the quantum of compensation. Now, the appellant filed an application in this appeal seeking permission to amend his claim petition so as to make the claim for an amount of Rs.5,37,500/- as originally assessed by him. In a bid to justify, such a claim the appellant along with the said application filed a disability certificate dated 30.3.2010 issued by one Dr.S. Mahadevan Pillai, a Senior Consultant Spine Surgeon. It is sought to be produced in this appeal as Annexure A. As noticed hereinbefore O.P.(M.V) 1607/2005 was disposed of by the Tribunal only on 26.7.2011 i.e. after more than one year since its issuance, if it was actually issued on 30.3.2010. Why the appellant had failed to produce it before the Tribunal and seeks for amending the claim. No reason, whatsoever, is forthcoming in that regard. Therefore, the attempt on the part of the appellant is to bring an M.A.C.A.No.2232 of 2011 13 amendment as relates the claim as also to bring in a challenge against the assessment of permanent disability. Hence, the applications filed in that regard are also dismissed. For the foregoing reasons, this appeal is liable to fail and accordingly, it is dismissed. In the circumstances, there is no order as to costs. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/