The Oriental Insurance Co. Ltd. v. Prasad Joseph; Usha A.; Sarojini C.P. & The Hon'ble Motor Accidents Claims Tribunal, Taliparamba (OP(MAC) Nos. 78/2017 and 79/2017)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. MUHAMED MUSTAQUE
Judgment Date: 2019-11-26
Court Decision / Holding: The impugned orders are set aside. The claimant is entitled to only those costs as sought for in the claim petition. OP(MAC) Nos.78 & 79 of 2017 disposed of as above.
Final Disposition: Impugned orders set aside; costs limited to those claimed; petitions disposed of accordingly in line with the principle that costs are reimbursement of litigation expenses but not exceeding what was claimed.

Parties to the Case

Appellants / Petitioners

The Oriental Insurance Co. Ltd., Thalipparamba, Kannur District, represented by its Assistant Manager, Regional Office, Ernakulam North, Kochi-18

Respondents

Prasad Joseph
The Hon'ble Motor Accidents Claims Tribunal, Talipparamba
Usha A.
Sarojini C.P.

Legal Representation & Advocates

Counsels for Petitioners

• Smt. K. S. Santhi
• Sri. Alexy Augustine
• Smt. Latha Susan Cherian
• Sri. George Cherian (Sr)

Counsels for Respondents

• Sri. John Numpeli (Junior)

Case Synopsis & Summary

The Kerala High Court, before a Single Judge, heard two Original Petitions (OP MAC Nos. 78/2017 and 79/2017) challenging the Motor Accidents Claims Tribunal’s orders on costs in two MACT claim petitions where the Tribunal had awarded a higher compensation than claimed. The principal issue was the correct quantum of costs in MACT proceedings when the compensation awarded exceeds the amount claimed. The Full Bench of this Court (ICICI Lombard General Insurance Company v. Devasia, 2019 (3) KLT 652) had previously held that the MACT is empowered to award proportionate costs under the Civil Rules of Practice and Advocates Fees Rules, i.e., costs can be awarded as a proportion of litigation expenses. The judgment clarifies that cost means the expenses incurred by the losing party in litigation, including advocate fees fixed under the Advocates Fees Rules, 1969, and that while a Tribunal may award higher compensation, it cannot award costs for amounts not actually incurred or claimed. Since the claimant restricted the claim, he also restricts his costs accordingly. Consequently, the impugned orders are set aside; the claimants are entitled only to the costs sought in their claim petitions. The petitions are disposed of accordingly, with the court endorsing the principle that costs are reimbursement of litigation expenses but limited to what was claimed.”

Provisions of Law Cited

Civil Rules of PracticeAdvocate Fees Rules, 1969

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the Motor Accidents Claims Tribunal is empowered to award proportionate costs; however, where compensation is awarded higher than claimed, the costs must correspond to actual costs incurred and claimed. They urged that the impugned orders be set aside and that costs be limited to those sought in the claim petitions.

Contentions of Respondents

The respondents’ arguments are not expressly detailed in the excerpt; the proceedings focused on applying the Full Bench principle that costs can be awarded proportionately and on limiting costs to what was claimed.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
ICICI Lombard General Insurance Company v. Devasia	2019(3) KLT 652 (F.B.)	Positive	Cited as the basis in the Full Bench that the MACT is empowered to award proportionate costs.
Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and Others	(2012) 1 SCC 455	Positive	Quoted to define the meaning of 'cost' as litigation expenses, including advocate fees under Advocate Fees Rules; supports the concept of costs being reimbursed and the ceiling provided by the Rules.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** # **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **OP (MAC).No.78 OF 2017(O)** **AGAINST THE AWARD PASSED IN OP(MV)NO 675/2016 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA** ## **PETITIONER:** **THE ORIENTAL INSURANCE CO.LTD., THALIPARAMBA, KANNUR DISTRICT, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.** **BY ADVS. SMT.K.S.SANTHI SRI.ALEXY AUGUSTINE SMT.LATHA SUSAN CHERIAN SRI.GEORGE CHERIAN (SR)** ## **RESPONDENTS:** **1 PRASAD JOSEPH, S/O JOSEPH, AGED 46 YEARS, MUNJANATT HOUSE, ALAKODE AMSOM, ALAKODE POST, HILL TOP, TALIPARAMBA, TALUK, KANNUR DIST. 2 THE HON'BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA.** ## **BY ADV.** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 26.11.2019, ALONG WITH OP (MAC)NO.79/2017(O), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(MAC)Nos.78 & 79 of 2017** **-2-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** # **OP (MAC).No.79 OF 2017** **AGAINST THE AWARD PASSED IN OP(MV)NO 108/2016 ON THE FILES OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TALIPARAMBA** ## **PETITIONER:** **THE ORIENTAL INSURANCE CO.LTD., KANNUR, REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, ERNAKULAM NORTH, KOCHI-18.** **BY ADVS. SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN SRI.GEORGE CHERIAN (SR) SRI.ALEXY AUGUSTINE** ## **RESPONDENTS:** **1 USHA .A., AGED 39 YEARS, W/O PAVITHRAN C.P., ARIYARATH HOUSE, SREEKANDAPURAM, NOW RESIDING AT VALAKKAI, P.O. KOYYAM, KARIMBAM (VIA), TALIPARAMBA, KANNUR DISTRICT. 2 SAROJINI C.P., AGED 63 YEARS, W/O NARAYANAN, CHANDRATHIL HOUSE, KOOTTUMUGHAM P.O., SREEKANDAPURAM, KANNUR DISTRICT. 3 THE HON'BLE MOTOR ACCIDENTS CLAIMS TRIBUNAL, TALIPARAMBA.** ## **R1, R2 BY ADV. SRI.JOHN NUMPELI (JUNIOR)** **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 26.11.2019, ALONG WITH OP (MAC)NO.78/2017(O), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(MAC)Nos.78 & 79 of 2017** **-3-** ## **JUDGMENT** **[ OP (MAC)No.78/2017, OP (MAC)No.79/2017 ] Dated this the 26th day of November 2019** The component of cost in an award in claim petition before a Motor Accidents Claims Tribunal is the issue to be considered in these original petitions. 2. The dispute arises in the context of a claim petition being allowed for a higher amount than that was claimed by the claimant. There may not be difficulty in awarding costs by calculating the amount of compensation for award, if such award is less than the amount claimed, as the law says a proportionate cost can be awarded. But in cases where the claim petition is allowed awarding a higher amount than what is sought for in the claim, the question relating to the quantum of cost arises for consideration. This case in fact, projects such a vested question. 3. The Full Bench of this Court in **[ 2019(3) KLT 652] (F.B) ICICI Lombard General Insurance Company v. Devasia** **OP(MAC)Nos.78 & 79 of 2017** **-4-** had taken a view that the cost can be awarded in proceedings in a claim petition before the Motor Accidents Tribunal. The Full Bench of this Court based upon the provisions of the Civil Rules of Practice and Advocates Fee Rules came to a conclusion that the Motor Accidents Claims Tribunal is empowered to award proportionate cost. 4. The term cost refers to what the losing party agrees to pay towards the litigation expenses of the opposite party. See the judgment of **Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust and Others (2012) 1 SCC 455.** The ceiling of cost in regard to the advocate fees is fixed under Advocate Fee Rules. The Advocate fee as referable under Advocate Fee Rules, 1969 is a presumed or agreed fee payable to the Advocate. Therefore, it is also forms part of the costs of the Award. The Full Bench also upheld the power of the Tribunal to award the proportionate cost. 5. The awarding of the proportionate cost is a means to understand whether the claimant is entitled to claim the entire **OP(MAC)Nos.78 & 79 of 2017** **-5-** proportionate cost for the higher amount or not, in case the compensation is awarded for a higher amount than what is claimed. This Court has to consider this issue in these original petitions. In both the original petitions, higher amount was awarded than the amount claimed. The cost, as already observed is ordered to be paid based on the actual cost incurred by the parties. The Tribunal is vested with the power to award more compensation than what is claimed. However, at the same time the Tribunal cannot award any cost otherwise which a litigant had not incurred. When the claimant restricts his claims, it means that he also restricts his cost which he otherwise can claim. As already noted, cost is a component of the litigation expenses incurred by a litigant. It is more of a reimbursement. It does not form a part of the compensation amount that is awarded. In view of the fact that the claimant himself had restricted the claim for cost by reducing his claim amount, the claimant cannot get more than what he had asked for. 6. That be the case, the impugned orders have to be set **OP(MAC)Nos.78 & 79 of 2017** **-6-** aside. The claimant would be entitled to only those costs as sought for in the claim petition. Accordingly, the impugned orders are set aside. These original petitions are disposed of as above. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** **akv** **OP(MAC)Nos.78 & 79 of 2017** **-7-** ## **APPENDIX OF OP (MAC) 78/2017** **PETITIONER'S/S EXHIBITS:** **EXHIBITP1** **TRUE COPY OF THE AWARD IN OP(MV) NO.675/16 OF MACT THALIPARAMBA DATED 11-1-2017** **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// C.A. TO JUDGE **OP(MAC)Nos.78 & 79 of 2017** **-8-** ## **APPENDIX OF OP (MAC) 79/2017** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE AWARD IN OP(MV) NO.108/16 OF MACT TALIPARAMBA DATED 29-4-2016** **RESPONDENT'S/S EXHIBITS : NIL.** //TRUE COPY// C.A. TO JUDGE