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2015 DIGILAW 1159 (KER)

Varghese Devassia v. Jossy Varghese

2015-08-18

ANU SIVARAMAN, P.N.RAVINDRAN

body2015
ORDER : P.N. Ravindran, J. This unnumbered appeal arises from the award passed by the Motor Accidents Claims Tribunal, Thodupuzha on 20.1.2015 in O.P.(M.V.) No.56 of 2009. The appellant is the claimant therein. He had in O.P.(M.V.) No.56 of 2009 which was instituted on 6.2.2009, prayed for award of the sum of Rs.7,00,000/- as compensation under various heads for the injuries sustained by him in a motor accident that took place on 7.1.2009. By award passed on 20.1.2015, the Motor Accidents Claims Tribunal awarded the sum of Rs.6,90,245/- as compensation and directed the third respondent insurer to deposit the said amount together with interest at 7% per annum from the date of petition till the date of realisation. The claimant was also held entitled to proportionate costs. The claimant has, dissatisfied with the quantum of compensation awarded by the Tribunal, filed this appeal. 2. Registry has declined to number the appeal on the ground that in view of sub-s.(2) of S.173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act” for short), the appeal is not maintainable. Such an objection has been raised on the ground that as against the appellant’s claim for award of the sum of, Rs.7,00,000/- as compensation, the Motor Accidents Claims Tribunal has awarded the sum of Rs.6,90,245/- and therefore, as the amount in dispute in the appeal is less than Rs.10,000/-, an appeal would not lie. Registry has also relied on the unreported decision of a learned single Judge of this court in M.A.C.A.No.1892 of 2009. 3. When this unnumbered appeal first came up for consideration before us on 23.7.2015, we appointed Sri.Mathews Jacob, learned Senior Advocate of this court as amicus curiae for the purpose of assisting us in considering the question whether sub-s.(2) of S.173 of the Act would govern appeals filed by the claimants who are dissatisfied with the quantum of compensation awarded by the Tribunal. We had in the said order, after referring to the decision of a Division Bench of this court in Oriental Fire and General Insurance Co. Ltd. v. Narayani Amma ( 1984 KLT 410 ) and the decision of a learned single Judge of this court in Ajesh Alex v. John & Ors. We had in the said order, after referring to the decision of a Division Bench of this court in Oriental Fire and General Insurance Co. Ltd. v. Narayani Amma ( 1984 KLT 410 ) and the decision of a learned single Judge of this court in Ajesh Alex v. John & Ors. ( 2006 (4) KLT 828 ) came to the prima facie conclusion that sub-s.(2) of S.173 of the Act can have no application to appeals filed by claimants who are dissatisfied with the quantum of compensation awarded by the Motor Accidents Claims Tribunal. 4. We heard Sri.S.Sachithananda Pai, learned counsel appearing for the appellant and Sri.Mathews Jacob, learned amicus curiae. Sri.Mathews Jacob, learned Senior Advocate submitted that the words “against any award” occurring in sub-s.(2) of S.173 of the Act indicates that the prohibition contained therein is against appeals by the owner, driver and insurer of the motor vehicle involved in the accident and not to an appeal filed by a claimant who is dissatisfied with the quantum of compensation awarded by the Tribunal. The learned Senior Advocate also submitted that the provisions of the Act regarding establishment of Motor Accidents Claims Tribunals and conferment of jurisdiction on such Tribunals to decide claims for compensation arising out of motor accidents being a beneficial piece of social welfare legislation, the Parliament thought it fit that in cases where the amount awarded as compensation or the amount disputed is less than Rs.10,000/-, there should be a finality attached to the awards passed by the Motor Accidents Claims Tribunals. The learned Senior Counsel submitted that the Tribunals constituted under the Act have a duty, irrespective of the claim made in the application, to award just, fair and reasonable compensation and therefore, in an appeal filed by a claimant who is dissatisfied with the quantum of compensation awarded by the Tribunal and seeking enhancement of compensation, no reference can be made to the amount claimed in the claim petition or the amount awarded by the Tribunal for the purpose of deciding whether the amount in dispute in the appeal is less than Rs.10,000/-. The learned Senior Advocate submitted that the Apex Court has in Rajesh & Ors. v. Rajbir Singh & Ors. The learned Senior Advocate submitted that the Apex Court has in Rajesh & Ors. v. Rajbir Singh & Ors. ( 2013 (3) KLT 89 (SC)) held that even without the claim petitions being amended, the Tribunals as well as this court can award just and fair compensation even in excess of the amount claimed in the claim petition and therefore, for that reason also, sub-s.(2) of S.173 of the Act cannot be invoked in appeals filed by claimants seeking enhancement of compensation to hold that an appeal would not lie if the difference between the amount claimed is compensation and awarded by the Tribunal is less than Rs.10,000/-. Sri.S.Sachithananda Pai, learned counsel appearing for the appellant reiterated the aforesaid submissions. 5. Section 110 D of the Motor Vehicles Act, 1939, which was repealed by the Motor Vehicles Act, 1988 contained a provision similar to sub-s.(2) of S.173 of the Act. Section 110D of the Motor Vehicles Act, 1939 reads as follows:- “110D. Appeals. (1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the date of the award, prefer an appeal to the High Court: Provided 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 appeal is less than two thousand rupees.” 6. The question whether the words “the amount in dispute in the appeal” occurring in sub-s.(2) of S.110D of the Motor Vehicles Act, 1939, will take with its fold, the interest accrued after the date of the award, arose for consideration before a Division Bench of this court in Oriental Fire and General Insurance Co. Ltd. v. Narayani Amma (supra). The appellant in that case was the insurer of a stage carriage bus which was involved in an accident. Respondents 1 and 2 in that appeal were the claimants before the Tribunal. The Tribunal allowed the application filed by them for grant of compensation and awarded the sum of Rs.1,546/- as compensation with interest and costs. It also directed the insurer to deposit the amount awarded as compensation. Respondents 1 and 2 in that appeal were the claimants before the Tribunal. The Tribunal allowed the application filed by them for grant of compensation and awarded the sum of Rs.1,546/- as compensation with interest and costs. It also directed the insurer to deposit the amount awarded as compensation. The liability of the insurer was limited to Rs.20,000/- in case the amount payable under the award exceeded it. The maintainability of the appeal was questioned by the claimants relying on sub-s.(2) of S.110D of the Motor Vehicles Act, 1939. They contended that as the amount awarded as compensation is only Rs.1,546/- even if interest at 6% per annum awarded by the Tribunal from 21.12.1976 is taken into account, the amount payable as on the date of the award would be only Rs.1,972/- and therefore, on the terms of sub-s.(2) of S.110D of the Motor Vehicles Act, 1939, the appeal is not maintainable, The appellants contended before the Division Bench that as on the date of filing of the appeal, the amount awarded together with interest exceeded Rs.2,000/- and therefore, as the said amount is the amount in dispute in the appeal, the appeal was maintainable, Repelling the said contention, the Division Bench held that unless the appellant gives up the challenge to any portion of the amount awarded, the amount in dispute in the appeal is the amount covered by the award namely the principal amount awarded as compensation. The Division Bench thereafter proceeded to consider the question whether even if interest awarded by the Tribunal Is taken into account, the amount payable under the award will exceed Rs.2,000/- It was held that as the appellant in that case has not challenged the award of interest or the rate of interest, the amount in dispute is only the amount awarded. The preliminary objection raised by the claimants before the Tribunal was upheld and the appeal was dismissed. 7. The issue again arose before a learned single Judge of this court in Ajesh Alex v. John and Ors. (supra). By the award which was impugned in that case, the claimant was allowed to realise the sum of Rs.9,050/- awarded as compensation with interest at 9% per annum from 17.11.2003 till realisation along with costs Rs.225/-, from the respondents before the Tribunal, The owner of the motor vehicle involved in the accident challenged that award by filing an appeal in this court. Registry objected to the maintainability of the appeal, relying on sub-s.(2) of S.173 of the Act on the ground that the compensation awarded by the Tribunal as per the impugned award is below Rs.10,000/-. Before the learned single Judge, it was contended on behalf of the appellant that the appeal is against the entirety of the award, that as on the date of the impugned award, the amount payable thereunder would be the sum of Rs.9,050/- awarded as compensation, the interest accrued from the date of petition, that is 17.11.2003, till the date of award, that is 3.1.2005, and the costs awarded by the Tribunal namely the sum of Rs.225/-, that the amount thus payable under the award would be more than Rs.10,000/- and therefore, the appeal is not barred by sub-s.(2) of S.173 of the Act. Interpreting the provisions contained in Chapter 12 of the Act, the learned single Judge held that the words “the amount in dispute in the appeal” take within it, all amounts granted as per the award. It was held that the amount in dispute in the appeal for the purpose of S.173 would be the entire amount a person is liable to pay under the award as on the date of the award and which he disputes in the appeal. The learned single Judge also observed that the decision of the Division Bench in Oriental Fire and General Insurance Co. Ltd. v. Narayani Amma (supra) has no application because the ratio in the said decision is that in determining the amount in dispute in the appeal, the interest accrued after the date of the award cannot be added on to inflate the amount in dispute in the appeal. 8. The issue again arose before another learned single Judge of this court In M.A.C.A.No.1892 of 2009. The said appeal by the claimant in O.P.(M.V.) No.1472 of 2000 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda was filed with a delay of 77 days. 8. The issue again arose before another learned single Judge of this court In M.A.C.A.No.1892 of 2009. The said appeal by the claimant in O.P.(M.V.) No.1472 of 2000 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda was filed with a delay of 77 days. When the application to condone the delay came up for consideration, taking note of the fact that as the claim before the Tribunal was limited to Rs.75,000/- and the Tribunal has awarded the sum of Rs.66,600/- as compensation together with interest, the learned single Judge held that as the appeal preferred by the claimant is in respect of an amount less than Rs.10,000/-, the bar under sub-s.(2) of S.173 of the Act will operate with full force, In that view of the matter, the application to condone the delay in filing the appeal and the appeal were dismissed. The judgment in M.A.C.A.No.1892 of 2009 is extracted below in full:- “Claimant is the appellant. He has filed the appeal with petition to condone delay of 77 days, dissatisfied with the quantum of compensation fixed and awarded by the Motor Accidents Claims Tribunal, Irinjalakkuda. His claim for injuries sustained in a motor accident was for a sum of Rs.2,18,000/-, but limited to Rs.75,000/-. Appreciating the materials placed, tribunal awarded him a sum of Rs.66,600/- as compensation allowing him to recover that sum with 7% interest per annum from the date of application till realisation. Third respondent (insurer) was directed to deposit the amount. Appeal is preferred challenging the quantum of compensation awarded, particularly over the sum assessed towards the disability suffered by the claimant consequent to the injuries suffered in the accident. In considering the cause shown for condoning delay, I have also looked into the merits of the appeal. The condonation of delay would arise for consideration only if it is shown that the claimant has got an arguable case to challenge the award passed by tribunal in appeal. He claimed compensation of Rs.75,000/- and was awarded a sum of Rs.66,600/-. Appeal preferred by him against the award is confined to an amount less than Rs.10,000/-. The condonation of delay would arise for consideration only if it is shown that the claimant has got an arguable case to challenge the award passed by tribunal in appeal. He claimed compensation of Rs.75,000/- and was awarded a sum of Rs.66,600/-. Appeal preferred by him against the award is confined to an amount less than Rs.10,000/-. In such a case, statutory bar under S.173(2) of the Motor Vehicles Act applies with full force, which commands that “no appeal will lie against any award of a claims tribunal if the amount in dispute in the appeal Is less than Rs.10,000/-.” Where the appeal by the claimant is found to be not entertainable in view of the statutory bar as indicated above, there is no need to go into the petition filed for condoning the delay. Application for condoning delay is dismissed, and the appeal is rejected.” 9. The Apex Court has in Rajesh & Ors.v. Rajbir Singh& Ors. (supra) held that the Tribunal/court has a duty irrespective of the claims made in the application for compensation, to award just, equitable, fair and reasonable compensation if necessary, by ignoring the claim made in the application for compensation. It was held that it is the duty of the court to fix the compensation, that it should not in that process succumb to niceties or technicalities and that the attempt of the court should be to equate, as far as possible, the misery on account of the accident with the compensation, so that, the injured/dependents should not face the vagaries of life on account of the discontinuance of the income earned by the victim. Reliance was placed on the decision of the Apex Court in Nagappa v. Gurudayal Singh & Ors. (2003) 2 SCC 274 ) and other decisions of the Apex Court in support of the said conclusion. 10. Reliance was placed on the decision of the Apex Court in Nagappa v. Gurudayal Singh & Ors. (2003) 2 SCC 274 ) and other decisions of the Apex Court in support of the said conclusion. 10. it is thus well settled that the Motor Accidents Claims Tribunals constituted under the Act as also this court exercising appellate jurisdiction have a duty to award just and fair compensation having regard to the well settled principles regarding assessment of damages, if necessary by ignoring the claim made in the application for compensation, If that be so, by necessary implication it will have to be held that the operation of sub-s.(2) of S.173 of the Act can have no application to appeals filed by claimants seeking enhancement of the compensation awarded by the Tribunal. In other words, the restriction contained in sub-s.(2) of S.173 of the Act can have application only where the award passed by the Motor Accidents Claims Tribunal is under challenge by the person held liable by the Tribunal to pay the amount awarded as compensation. We accordingly hold that the restriction contained in sub-s.(2) of S.173 of the Act can have no application to appeals filed by claimants in this court seeking enhancement of the compensation awarded by the Motor Accidents Claims Tribunal and that the said provision will apply only to appeals filed by the owner/driver/insurer of the motor vehicle involved in the accident who have been held liable by the Tribunal to pay the compensation awarded by it. Consequently, we overrule the objection raised by the Registry and direct the Registry to number the appeal and the accompanying application and to send up the application to condone the delay for hearing as per roster after the ensuing Onam vacation. We also place on record our appreciation of the valuable assistance rendered by Sri. Mathews Jacob, learned Senior Advocate.