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2016 DIGILAW 480 (KER)

Wilcy Stephen v. A. C. Stephen

2016-06-08

C.T.RAVIKUMAR, K.P.JYOTHINDRANATH

body2016
JUDGMENT : Ravikumar, J. These appeals arise from a common award dated 27.9.2010 in O.P.(M.V)Nos.503 and 1048 of 2006 passed by the Motor Accidents Claims Tribunal, Ernakulam. In fact, both the appeals have been preferred by one and the same person and therefore, hereafter in this judgment she will be referred to as 'the appellant'. The appellant herein filed the aforementioned claim petitions seeking compensation for the death of her two sons namely, Clifford Stephen and Steev Stephen in a motor vehicle accident that occurred on 7.5.2005. O.P. (M.V)No.503 of 2006 was filed seeking compensation for the death of Steev Stephen and O.P.(M.V)No.1048 of 2006 was filed seeking compensation for the death of Clifford Stephen. On that day, the deceased Clifford Stephen was driving the Maruti Alto Car bearing Reg.No.KL-07/AT-5743 belonging to the first respondent who is none other than his own father, from east to west through Thevara bridge. His brother Steev Stephen was sitting beside him on the left seat. During its further course the said vehicle hit against the rear side of the Lorry bearing Reg.No.TN-57/B-7864 and consequently, both of them sustained injuries. Clifford Stephen died instantaneously and Steev Stephen was taken to Medical Trust Hospital, Ernakulam. While undergoing treatment there as an inpatient, on the 4th day, he too breathed his last. It is in the said circumstances that the aforementioned claim petitions have been filed. In fact, O.P.(M.V) No.1048 of 2006 was filed under Section 163-A of the Motor Vehicles Act (for short 'the Act') whereas O.P.(M.V)No.503 of 2006 was filed under Section 166 of the Act. Though the Tribunal had not conducted a joint enquiry it is a fact that the claim petitions were disposed of by the Tribunal as per the common judgment dated 27.9.2010. Evidently, paragraphs 9 and 10 of the impugned award would reveal that separate enquiry was conducted by the Tribunal and in O.P.(M.V)No.1048 of 2006 Exts.A1 to A13 were got marked and in O.P.(M.V)No.503 of 2006 Exts.A1 to A14 were got marked. The said fact is discernible from the appendix to the impugned award, as well. Paragraph 10 would reveal that after conducting separate enquiry, on finding that the victims in both the cases died in the same occurrence common judgment was delivered by the Tribunal. The Tribunal, after considering the evidence on record and the rival contentions passed an award for a total compensation of Rs. Paragraph 10 would reveal that after conducting separate enquiry, on finding that the victims in both the cases died in the same occurrence common judgment was delivered by the Tribunal. The Tribunal, after considering the evidence on record and the rival contentions passed an award for a total compensation of Rs. 1,96,500/- in O.P.(M.V) No.1048 of 2006 and Rs. 1,17,000/- in O.P.(M.V)No.503 of 2006. In both the claim petitions it was ordered that the amounts awarded would carry interest at the rate of 8% per annum from the date of filing of the respective petitions till realisation. It is feeling aggrieved by and dissatisfied with the quantum of compensation granted thereunder that M.A.C.A.Nos.258 of 2011 and 377 of 2011 are filed, as mentioned hereinbefore. 2. We have heard the learned counsel for the appellant in both the appeals and also the learned counsel appearing for the Insurance Company which is arrayed as respondents 2 and 5 on account of it being the insurer of both the vehicles involved in the accident. 3. We will firstly consider whether the Tribunal has committed an error, warranting interference, by disposing of both the claim petitions, one filed under Section 163-A of the Act and the other under Section 166 of the Act, by a common judgment. True that the term employed under Sections 168 and 173 of the Act is 'award' and not 'judgment'. But then, Rule 392 of the Kerala Motor vehicles Rules, 1989 provides as follows:- "392. Judgment and award of compensation.-(1) The Claims Tribunal in passing orders, shall record concisely in a judgment, the findings on each of the issues framed and the reasons for such findings and make an award specifying the amount of compensation to be paid by the insurer, or the owner in the case of vehicles which are not insured and also the person or persons to whom compensation shall be paid. (2) Where compensation is awarded to two or more persons the Claims Tribunal shall also specify the amount payable to each of them. (3) The Claims Tribunal shall furnish copies of the judgment as required to be recorded under sub-rule (1) to the Secretary of the Regional Transport Authority, the registering authority and the licensing authority concerned for taking such action has the authorities consider necessary against the drivers, conductors or owners or the vehicle involved in the accident. (3) The Claims Tribunal shall furnish copies of the judgment as required to be recorded under sub-rule (1) to the Secretary of the Regional Transport Authority, the registering authority and the licensing authority concerned for taking such action has the authorities consider necessary against the drivers, conductors or owners or the vehicle involved in the accident. (4) Notwithstanding anything contained in sub-rules (1) and (2) the record of judgment shall, in respect of claims exceeding five thousand rupees, contain the evidence which shall either be verbatim or a reasonably complete and full memoranda of testimony explaining the basis of compensation, the findings on each such evidence and the reasons for such findings, before making an award specifying the amount of compensation." Evidently, after recording findings on each of the issues framed and the reasons for the findings in the common judgment the Tribunal passed separate awards specifying the amount of compensation to be paid, in both the claim petitions. True that the scope of enquiry under Section 163-A and 166, of the Act are different and therefore, owing to the ostensible difference in the scope of enquiry it would be advisable to deal with such applications separately. The Tribunal is empowered to give separate awards in separate petitions even though those petitions arose out of the same accident (See National Insurance Co. Ltd. v. Daya Rani 2003 (2) KLT SN 163). But, we may hasten to add that this method cannot always be followed as in a case where there is a likelihood of arriving at contradictory and inconsistent decisions on the same questions in respect of claim petitions arising from the same occurrence, as in this case. As law now stands, though a claimant shall not be required to plead or establish that death or permanent disablement in respect of which claim has been made was due to any of the three faults namely, 'wrongful act', 'neglect' or 'default' of the owner of the vehicle or vehicles concerned or of any other person, in a claim petition filed under Section 163.A of the Act, the insurer or the owner of the vehicle/vehicles concerned could defeat such a claim by pleading and establishing any of the aforesaid three faults on the part of the victim or claimant, to avoid the liability. But, as regards a claim under Section 166 of the Act it is essential to plead and/or prove negligence on the part of the driver/rider, in order to succeed. If such claim petitions happened to be filed pertaining to the very same occurrence, one under Section 163-A and the other under Section 166, of the Act and if the issue whether the accident occurred due to the negligence of the driver/rider of the alleged offending vehicle or due to the negligence of the deceased or the claimant who is the victim of the accident, arises for consideration in both the claim petitions, to avoid contradictory and inconsistent decisions on the same questions in claim petitions arising from the same occurrence, they will have to be jointly enquired into. It is to be noted that the hallmark of a judicial decision lies in avoidance of contradictory and inconsistent decisions on the same questions in such situations. Evidently, such a situation emerged in the cases on hand and therefore, having regard to the facts and circumstances, we do not find any illegality in the method adopted by the Tribunal. Therefore, we will proceed with the consideration of the captioned appeals, in accordance with law. M.A.C.A. No. 258 of 2011 4. As noticed hereinbefore, this appeal has been preferred against the award in O.P.(M.V)No.1048 of 2006. The said claim petition was filed under Section 163-A of the Act. A scanning of the impugned award would reveal that the Tribunal fixed the monthly income of deceased Clifford Stephen as Rs. 3,000/- notionally for the purpose of arriving at the compensation payable though the appellants claimed Rs. 10,000/- as his monthly income. The learned counsel for the insurance company contended that in the light of such plea made by the appellant in the claim petition, the said petition itself ought not to have been entertained by the Tribunal and therefore, it has to be dismissed by invoking the power under Order 41, Rule 33 of the Code of Civil Procedure. 5. The question to be decided primarily is whether the respondent-insurer, who neither filed an appeal nor a cross-objection in the appeal filed by the claimant for enhancement of compensation, could seek for the dismissal of the very claim petition itself, based on the claimant's/appellant's plea in the claim petition that the monthly income of the victim was Rs. 5. The question to be decided primarily is whether the respondent-insurer, who neither filed an appeal nor a cross-objection in the appeal filed by the claimant for enhancement of compensation, could seek for the dismissal of the very claim petition itself, based on the claimant's/appellant's plea in the claim petition that the monthly income of the victim was Rs. 10,000/- on the ground that it was sufficient to hold her dis entitled to maintain the claim petition under Section 163-A of the Act? The learned counsel for the respondent - insurance company contended that the fact that the insurer had neither filed the appeal nor a cross-objection in this appeal could not be a ground to negate the said contention in view of the provisions under Order 41, Rule 33 of the Code of Civil Procedure (CPC). The learned counsel for the appellant-claimant strongly resisted the contention on the ground that if the insurer was aggrieved by the rejection of the plea for dismissal by the Tribunal on the aforesaid ground and the scaling down of the victim's income to Rs. 3,000/- so as to bring the claim maintainable under Section 163-A of the Act it should have filed either an appeal or cross-objection in this appeal. Having not cared to prefer an appeal or cross-objection, as a matter of right the respondent - insurer could not seek such an extreme relief of dismissal of the claim petition, in the claimant's appeal, it is contended. 6. Those provisions of the Code of Civil Procedure which are not specifically made applicable to a proceeding before the Tribunal by the M.V. Act and the Kerala Motor Vehicles Rules, 1989 do not priprio vigore apply to a claim petition before the Tribunal and as such, in respect of an appeal arising therefrom. But, it does not mean that this Court or the Tribunal lacks power to modulate the procedures to deal with the proceeding before it. But, it does not mean that this Court or the Tribunal lacks power to modulate the procedures to deal with the proceeding before it. A Division Bench of this Court in Velunni v. Vellakutty reported in 1989 (2) KLT 227 held:- "in order to do justice for which it has been constituted, the Tribunal would have power to apply the principles underlining in the provisions of the Code of Civil Procedure, even though not rendered specifically applicable." Certainly, there is no exclusion of exercise of power under Order 41, Rule 33, CPC by the High Court under the provisions of the M.V. Act or any of the Rules framed thereunder, in an appeal filed under Section 173 of the M.V. Act. Order 41, Rule 33, CPC 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 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 cross-suits or 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." The expressions 'The Appellate Court shall have power to pass' and 'this power may be exercised by the Court' appearing in the rule would reveal beyond doubt that the appellate court is clothed with the power and jurisdiction thereunder to pass any decree and any order mentioned therein, in favour of any of the respondents or parties although such respondents or parties had not filed any appeal or cross-objection and at the same time that its exercise is discretionary. Wherever discretion is conferred the law intends and enjoins its judicial exercise the maxim 'Discretio est discernere per legem quid sit justum' means 'Discretion consists in knowing what is just in law', is to be borne in mind to eliminate the element of arbitrariness. The decision of the High Court of Bombay in Padmadevi Shankerrao Jadhav v. Kabalsing Gormilsing Sardarji reported in 1985 ACJ 382 rendered following the decision of the Hon'ble Supreme Court in Choudhary Sahu v. State of Bihar ( AIR 1982 SC 98 ) assumes relevance in the context of application of the power under Order 41, Rule 33 in an appeal filed by the claimants for enhancement of compensation, at the instance of an opposite party who neither filed an appeal nor cross-objection. In that case the finding of negligence recorded by the Tribunal was sought to be challenged in the appeal by the claimants and, as in this case, the respondents sought for not only the dismissal of the appeal but also of the claim itself in to, by taking recourse to Order 41, Rule 33, CPC. Paragraph 7 of the decision in Padmadevi Shankerrao Jadhav's case (supra) extracting paragraphs 12, 13 and 14 of the decision of the Hon'ble Apex Court in Choudhary Sahu's case (supra) is worthy to be extracted in the contextual situation. It reads thus:- "7. So far as the question as to whether the opponents can challenge the finding qua negligence of the opponent No.1 Kabalsing is concerned, in our view, it is not open to the opponents to challenge the said finding in the absence of filing of an independent appeal or a cross-objection. It is not disputed that in an appeal filed under the provisions of the Motor Vehicles Act it is open to the opposite party to file cross-objections, since the provisions of Order 41, Rule 22 will aptly apply to such an appeal. This position is not disputed even by Shri.Trivedi and in our opinion, rightly. It is not disputed that in an appeal filed under the provisions of the Motor Vehicles Act it is open to the opposite party to file cross-objections, since the provisions of Order 41, Rule 22 will aptly apply to such an appeal. This position is not disputed even by Shri.Trivedi and in our opinion, rightly. As held by the various High Courts, including Karnataka, Allahabad, Gujarat and Andhra Pradesh, in AIR 1975 Kant 18, K. Chandrashekaran Naik v. Narayana; AIR 1982 All 296 , U.P. State Road Transport Corporation v. Smt. Janki Devi; AIR 1982 Guj 145 , National Insurance Co, Baroda v. Diwaliben and AIR 1983 AP 297 , Srisailam Devastanam v. Bhavani Pramilamma, the provisions of the Civil Procedure Code will be applicable to an appeal filed under section 110-D of the Motor Vehicles Act. As a necessary corollary of this, cross-objections could be filed in such an appeal. In our view, this position is placed beyond doubt by the amendment to the provisions of Order 41, Rule 22 of the Code of Civil Procedure. The Explanation to Order 41, Rule 22 clearly provides that a respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent. In the present case, admittedly the ultimate award for compensation passed by the Tribunal is based on the finding on the issue of negligence. Unless it was held that the truck driver was negligent in driving the truck and the accident took place because of his negligence, the award for compensation against the opponents cannot follow. Even if it is held that it was the case of contributory negligence on the part of the truck driver as well as the deceased, then also unless a finding in that behalf is recorded, an award for compensation cannot be passed in favour of the claimants. Therefore, the finding on the question or issue of negligence is not only germane, but is the foundation for awarding compensation. Therefore, the finding on the question or issue of negligence is not only germane, but is the foundation for awarding compensation. Hence a cross-objection could have been filed by the opponents challenging the said award based on the said findings. This has not been admittedly done. Therefore, in our vies, unless a cross-objection is filed, it will not be open to the opponents to challenge the finding in that behalf. We are fortified in this view by the latest decision of the Supreme Court in Choudhary Sahu (dead) by Lrs. v. State of Bihar, (1982) 2 SCR 178 . Precisely a similar question fell for the consideration of the Supreme Court in the context of the provisions of Order 41, Rule 22 and Order 41, Rule 33 of the Code of Civil Procedure. After making a reference to its earlier decisions in (1965) 3 SCR 550 and (1969) 3 SCR 944 , this is what the Supreme Court has observed in paras 12, 13 and 14 of the judgment:- "12. The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to reopen decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from. 13. Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant further interference with the decree of the lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this rule the Court should not lose sight of the other provisions of the Code itself nor the provisions of the other laws viz. The Law of Limitation or the Law of Court-fees etc. 14. In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. 14. In these appeals the Collector on the basis of the material placed before him allowed certain units to the various appellants. In the absence of any appeal by the State of Bihar, there was no justification for the Commissioner to have interfered with that finding in favour of the appellants. The facts and circumstances of these appeals are not such in which it would be appropriate to exercise the power under Order 41, Rule 33. The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding allotment of units to the various appellants in the absence of any appeal by the State of Bihar when the same had become final and rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation." In our view, these observations aptly apply to the present case also. This Court cannot exercise power under Order 41, Rule 33 by losing sight of the other provisions of the Code, or the provisions of other viz., the Law of Limitation, the Law of Court-fees etc. In the present case, Shri. Trivedi practically wants that not only the appeal should be dismissed, but the claim made by the claimants should be dismissed in to, which means that we should pass an order to the prejudice of the claimants, though the opponents have not filed any appeal or cross-objections and the Award passed by the Tribunal has become final, so far as the opponents are concerned. In our view, the wide powers conferred upon this Court under Order 41, Rule 33 cannot be exercised to achieve such a design. This is not legally permissible, nor is it equitable." The extraction from the decision of the Hon'ble Apex Court will explicitly make it clear that the object of Rule 33 under Order 41 is to avoid contradictory and inconsistent decisions on the same questions in the same suit and as the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The further caution of the Hon'ble Apex Court is very much relevant while exercising the said power. The further caution of the Hon'ble Apex Court is very much relevant while exercising the said power. The Apex Court observed:- "The rule does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from." It was held therein that while exercising the wide power under Order 41, Rule 33 the Court should not lose sight of the other provisions under CPC or the provisions of other laws viz., the Law of Limitation, the Law of Court-fees etc. and ultimately held it impermissible in law and equity. 7. Now, reverting to the case on hand, it is evident that the party respondents viz., respondents 1, 3 and 4 remained ex parte before the Tribunal. Evidently, the respondent-insurance company filed petition under Section 170 of the M.V. Act and on obtaining permission contested the matters on all grounds. In the written statement the respondent - insurance company while admitting the insurance coverage of the lorry, stated that the victim in O.P.(M.V)No.1048 of 2006, viz., deceased Clifford Stephen who drove the car, alone was responsible for the accident. Issues were jointly framed in O.P.(M.V) No.1048 of 2006 filed under Section 163-A and in O.P.(M.V)No.503 of 2006 filed under Section 166, of the M.V. Act and issue No.1 reads thus:- "1. Whether the claimant is entitled to get any amount by way of compensation in connection with the death of her sons name Clifford Steephen and Steev Steephen as a result of the injuries sustained in the motor accident?" 8. After formulating issue No.1 as above, despite the fact that the respondent - insurance company raised the contention that the accident occurred solely due to the negligence of Clifford Stephen, the victim in O.P.(M.V)No.1048 of 2006, the Tribunal found that the accident occurred exclusively due to the negligence of the driver of the lorry which was insured with the 5th respondent insurance company and therefore, the said insurance company is liable to indemnify the owner of the said vehicle and proceeded to quantify the compensation payable for the death of Clifford Stephen. Whether the quantification was done in accordance with law and whether quantum fixed as per the impugned award is to be enhanced are matters to be decided subject to finding on the aforesaid question and therefore, they will be decided a little later, subject to such finding. Paragraph 14 of the impugned award itself would reveal that the Tribunal had taken note of the fact that the claimant stated the monthly income of the victim viz., Clifford Stephen as Rs. 10,000/- in the claim petition and then, observed that a claim under Section 163-A of the Act could be maintained only if the yearly income of the deceased had not exceeded Rs. 40,000/-. After making such observation the Tribunal scaled down the monthly income of the deceased notionally to Rs. 3,000/- for calculation purpose. The Tribunal held that no evidence was adduced by the claimant to substantiate the claim of the victim's monthly income as Rs. 10,000/- and in the absence of any such evidence the Tribunal took the monthly income of the deceased notionally, as Rs. 3,000/-. Thus, after scaling down the monthly income of the victim to Rs. 3,000/- and rejecting the precise case of the 5th respondent that the accident had occurred due to the sole negligence of the driver of the car viz., Clifford Stephen the Tribunal held that the 5th respondent - insurance company is liable to indemnify the insured - owner of the lorry, viz., the 3rd respondent. Consequently, the 5th respondent - insurance company was directed to pay the compensation calculated taking the monthly income as Rs. 3,000/-. Despite such findings and fastening of liability the insurance company had not cared either to file an appeal or to file cross-objection in the claimant's appeal for enhancement of compensation, based on any of the findings upon which it feels aggrieved. There can be little doubt with respect to the position that even a wrong order would bind the parties unless it is successfully challenged before appropriate forum. Now, the position obtained in this case is that the Tribunal after scaling down the income of the deceased awarded an amount of Rs. 1,96,500/- as compensation under Section 163-A of the M.V. Act. Now, the position obtained in this case is that the Tribunal after scaling down the income of the deceased awarded an amount of Rs. 1,96,500/- as compensation under Section 163-A of the M.V. Act. The insurance company despite being fastened with the liability to pay the same neither filed an appeal against the award nor filed cross-objection in the claimant's appeal for enhancement of compensation, but takes up the contention that the appeal as also the claim petition shall be dismissed taking recourse to Order 41, Rule 33, CPC. 9. Therefore, the question is whether this is a fit case for invoking the discretionary power under Order 41, Rule 33, CPC for the aforesaid purposes, at the instance of the insurance company, in the above expatiated facts and circumstances? We have already referred to the decision of the Hon'ble Apex Court in Choudhary Sahu's case (supra) and the decision in Padmadevi Shankerrao Jadhav's case (supra) rendered relying on the same. The fact that the provision for compensation under Section 163-A of the Act is a Social Welfare Legislation also cannot be lost sight of. What is obvious in this case is that the accident and the insurance coverage of the lorry involved in the accident with the insurance company are all admitted by the insurance company. Above all, no appeal or cross-objection taking up the contention that the accident occurred solely due to any of the three faults, namely wrongful act, neglect or default of the owner of the vehicle or vehicles concerned or any other person, has been pleaded and proved by the insurer so as to defeat the claim of the appellant - claimant. Despite the scaling down of the monthly income of the deceased Clifford Stephen to Rs. 3,000/- and taking it as the basis for the calculation and above all, rejection of the 5th respondent's precise case that the accident occurred solely due to the negligence of the driver of the car the 5th respondent allowed the judgment and award dated 27.9.2010 to become final. No appeal was filed against the same and also in the appeal filed by the claimant for enhancement no cross-objection has been filed. After more than five years, now, when the appeal is taken up for final hearing, the 5th respondent cannot be permitted to achieve its design to avoid the award passed against it without filing an appeal or cross-objection. After more than five years, now, when the appeal is taken up for final hearing, the 5th respondent cannot be permitted to achieve its design to avoid the award passed against it without filing an appeal or cross-objection. The findings that the claimant is entitled to get compensation under Section 163-A of the M.V. Act and the 5th respondent is liable to indemnify the 3rd respondent and to pay the amount awarded, which became final as against the 5th respondent long ago, cannot be reopened taking recourse to the exercise of power under Order 41, Rule 33, CPC ignoring the other provisions of the Code, the provisions of the M.V. Act, the Law of Limitation or the Law of Court-fees etc. Going by Section 173 of the M.V. Act any person aggrieved by an award of a Claims Tribunal may have to file appeal to the High Court within ninety days from the date of the award. Going by its first proviso no such appeal could be entertained unless the appellant deposits twenty-five thousand rupees or fifty per cent of the amount awarded, whichever is less. Rule 397(3) of the Kerala Motor Vehicles Rules, 1989 prescribes Rs. 100/- as the court fee for an appeal. The findings of the Tribunal against which now, the 5th respondent raises grievance are not only germane, but they form the very foundation for assessment of compensation as per the impugned award. Therefore, in the light of the facts emerged from the discussion based on the evidence on records and in the light of the decisions in Choudhary Sahu's case and Padmadevi Shankerrao Jadhav's case (supra) exercise of power under Order 41, Rule 33, CPC in this appeal is not legally permissible and it will not be equitable, as well. 10. The issue has to be viewed in another angle as well, in the aforesaid circumstances and also the factual position obtained in this case. As noticed hereinbefore, the Tribunal has categorically found that the accident occurred solely due to the negligence of the driver of the lorry which was insured with the 5th respondent. It is pertinent to note that the accident as also the insurance coverage of the aforesaid lorry at the time of the accident are not at all disputed by the insurance company. It is pertinent to note that the accident as also the insurance coverage of the aforesaid lorry at the time of the accident are not at all disputed by the insurance company. In view of the circumstances explained hereinbefore and in view of the indisputable and undisputed position that Clifford Stephen died in the accident involving the aforesaid vehicle insured with the 5th respondent, the claim of the appellant/claimant cannot be defeated at this appellate stage for the aforesaid technical reason that the claimants made a claim of more than Rs. 3333/- as monthly income taking into account the object of compensation on structured formula basis. A reference to the decision of the Hon'ble Apex Court in Roshan Deen v. Preeti Lal reported in AIR 2002 SC 33 would not be malapropos taking into account the fact that the provision under Section 163-A of the Act is a Social Security provision. In Roshan Deen's case (supra) the Hon'ble Apex Court held that the power conferred on the High Court under Articles 226 and 227 of the Constitution of India is to advance justice and not to thwart it. The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Courts, according to the Apex Court, is therefore, not to merely pick out an error of law through an academic angle, but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the by-product of an erroneous view of the law the High Court is not expected to erase such justice in the name of correcting the interpretation of law. In the wake of the said decision as also in view of the fact that it is a social security provision it is only appropriate to look into the scope of and application of the power under Order 41, Rule 33 of the CPC. In the wake of the said decision as also in view of the fact that it is a social security provision it is only appropriate to look into the scope of and application of the power under Order 41, Rule 33 of the CPC. Going by the decisions of the Hon'ble Apex Court in Rameshwar Prasad v. Shambehari Lal Jagannath ( AIR 1963 SC 1901 ) and Choudhary Sahu (Dead) by Lrs v. State of Bihar ( AIR 1982 S.C. 98 ) the discretion conferred by Order 41, Rule 33 of the CPC is very wide and it has been bestowed upon the court to enable it to do complete justice between the parties. When all other factors are satisfied to fasten liability on the 3rd and 5th respondents who are respectively the insured owner and insurer of the lorry, we are of the considered view that interest of justice could be better served by declining to invoke the discretionary jurisdiction under Order 41, Rule 33 of the Code, by keeping reminded ourselves of the aforequoted maxim relating 'discretion'. Accordingly, on the aforesaid grounds also we will not be justified in invoking the power under Order 41, Rule 33, CPC. We may hasten to add that we shall not be understood to have held that in a claim petition under Section 163-A of the Act the Tribunal is empowered to scale down the monthly income to bring the claim within the purview of Section 163-A. We have considered only the question of necessity and justification of exercise of power under Order 41, Rule 33, CPC at the instance of a party who failed to prefer a regular appeal or cross-objection in the appeal preferred by the claimant for enhancement of compensation, in the appeal filed by the claimant. 11. Though the loss due to death is not ransomable keeping in mind the salutary principle 'Restitutio in integrum' means 'restore parties to their original position' which partakes the meaning in compensation cases 'to compensate a person or a party who is a victim of a wrong or tort, for the loss or harm suffered or sustained we will proceed with the matter further to consider the entitlement of enhancement of compensation. 12. As per the impugned award the Tribunal granted a total compensation of Rs. 1,96,500/-. 12. As per the impugned award the Tribunal granted a total compensation of Rs. 1,96,500/-. On a careful perusal of the impugned award as relates O.P.(M.V)No.1048 if 2006, in our view, the method applied by the Tribunal for arriving at the figure of compensation was wholly irregular and unjustified having regard to the fact that the claim petition was filed under Section 163-A of the M.V. Act. Evidently, the Tribunal took the monthly income of the deceased Clifford Stephen as Rs. 3,000/- and then followed the multiplier-multiplicand method for arriving at the compensation payable under Section 163-A of the Act. After fixing the monthly income notionally as Rs. 3,000/- the Tribunal deducted 1/3rd of the same towards personal expenses of the deceased and then adopted the multiplier as 8' by taking into account the 'average age' of the parents viz., the appellant - applicant and the first respondent who is the father of the victim in the accident. What was the necessity to find the 'multiplier' by taking into account the 'average age' of the parents, in a claim petition filed under Section 163-A of the Act for compensation for death? The manner in which quantification of compensation has to be made in a claim petition under Section 163-A is now fairly settled. In the light of the decision of the Hon'ble Apex Court in Ramprasad Balmiki v. Anil Kumar Jain (2008 (4) KLT 312) and also of the decisions of this Court in Jacob v. Mohammed ( 2004 (1) KLT 893 ) and in Kadeeja v. Kerala State Road Transport Corporation (2013 (4) KLT 683) there can be no doubt that calculation has to be made in a claim petition under section 163-A of the Act, based on the structured formula under the Second Schedule to the Act as enjoined under Section 163-A of the Act and there was absolutely no necessity to find out the multiplier for quantifying the compensation. In respect of a claim for compensation for death under Section 163-A the twin relevant factors are the age for finding out the age group and income of the deceased for finding out the particular range of annual income from among the 13 figures given horizontally atop the schedule, within which the annual income of the deceased falls. Therefore, the adoption of multiplier as 8' in this case has to pale into insignificance. Therefore, the adoption of multiplier as 8' in this case has to pale into insignificance. Evidently, the Tribunal has failed to assess the compensation based on the structured formula and in fact, assessed it following the multiplicand-multiplier method and in such circumstances, the method adopted by the Tribunal for calculating the compensation has to be held as bad in law. 13. Obviously, the twin relevant factors viz., age and income are available in this case from the evidence on record. Based on the monthly income the annual income of the deceased had to be taken as Rs. 36,000/-. Once the annual income is available, for arriving at the compensation payable in case of death we need only to look into the age group of the victim to find out the corresponding amount of compensation given in thousands in the vertical columns and then effect its reduction by 1/3rd in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. In this case, the deceased Clifford Stephen was aged 23 years at the time of death as is obvious from the date of birth given in the driving licence. In such circumstances, going by the Second Schedule, he would fall under the group "above 20 years but not exceeding 25 years". Taking into account the annual income of the deceased viz., Rs. 36,000/- and his age group as "above 20 years but not exceeding 25 years" the amount of compensation is Rs. 6,48,000/-. But, in the light of the Note No.1 under the said schedule from the amount of compensation so arrived at in the case of fatal accident, one third of the same has to be deducted considering the expenses which the victim would have incurred towards maintaining himself had he been alive. In such circumstances, an amount of Rs. 2,16,000/- has to be deducted from Rs. 6,48,000/- and the balance alone viz., Rs. 4,32,000/- is the amount of compensation payable for the death of Clifford Stephen. Describing as amount of compensation for dependency an amount of Rs. 1,22,000/- has been awarded by the Tribunal. Therefore, the appellant would be entitled to get only an additional amount of Rs. 2,40,000/- as compensation for death. 6,48,000/- and the balance alone viz., Rs. 4,32,000/- is the amount of compensation payable for the death of Clifford Stephen. Describing as amount of compensation for dependency an amount of Rs. 1,22,000/- has been awarded by the Tribunal. Therefore, the appellant would be entitled to get only an additional amount of Rs. 2,40,000/- as compensation for death. This amount cannot be described as one for compensation for loss of dependency and in fact, it is the compensation payable in the case of death under Section 163-A of the M.V.Act. In terms of the Second Schedule, besides the aforementioned amount, in terms of Note No.3, in case of death, general damages under four heads namely, 'funeral expenses', 'loss of consortium', if beneficiary is the spouse, 'loss of estate' and 'medical expenses' are payable. In this case, no amount towards 'medical expenses' could be granted as no medical bill has been produced. The deceased was a bachelor. Therefore, there is no question of granting loss of consortium. Hence, in addition to the aforesaid amount the appellant is only entitled to get Rs. 2000/- towards funeral expenses and Rs. 2,500/- towards loss of estate. The said amounts are already awarded under the aforesaid heads, as per the impugned award. M.A.C.A. No. 377 of 2011 14. This appeal is preferred against the award in O.P.(M.V) No.503 of 2006. The said claim petition was filed under Section 166 of the M.V. Act. In this case, as per the impugned award, the Tribunal granted a total compensation of Rs. 1,17,000/-. The appeal is preferred seeking for its enhancement. No appeal has been preferred by any of the respondents and they have also not filed cross objection in this appeal. The Tribunal has found that the accident in question occurred due to the negligence of the driver of the lorry insured with the 5th respondent. The deceased was only a passenger in the car involved in the accident. As noticed hereinbefore, the accident as also the insurance coverage of the said lorry were admitted by the 5th respondent in its written statement. The deceased Steev Stephen, the son of the appellant was aged 14 years at the time of the accident and he was a school going student. The Tribunal fixed Rs. 15,000/- as his annual income and one third of the same was deducted. The deceased Steev Stephen, the son of the appellant was aged 14 years at the time of the accident and he was a school going student. The Tribunal fixed Rs. 15,000/- as his annual income and one third of the same was deducted. But, at the same time, the Tribunal identified the multiplier as 8' looking into the average age of the parents. The learned counsel for the appellant submitted that the wrong fixation of monthly income and multiplier resulted in erroneous estimation of the compensation under the head 'loss of dependency'. The learned counsel further contended that the Tribunal ought to have taken into account the future prospects of the deceased. It is contended that though an amount of Rs. 15,000/- was claimed towards funeral expenses only an amount of Rs. 5,000/- was granted and the Tribunal has granted only meagre amounts under the heads 'transportation', 'damage to clothing' and 'pain and suffering'. The learned counsel appearing for the respondent insurance company contended that a bare perusal of the impugned award would reveal that the Tribunal has granted adequate compensation under all heads. It is submitted that 'just compensation' has been awarded to the appellant and no appellate interference is called for, in this case. 15. The first question to be considered is whether the Tribunal has erred in fixing the multiplicand as also the multiplier for the purpose of computing the compensation for 'loss of dependency'? In the light of the decision of the Hon'ble Apex Court in R.K. Malik v. Kiran Pal ( (2009) 14 SCC 1 ) no volume of argument is required as to how the multiplicand and multiplier have to be fixed in the case of compensation for death of children who are students. The Apex Court held in paragraph 14 thereunder that even when compensation is payable under Section 166 read with Section 168 of the Act, deviation from the structured formula as provided in the Second Schedule is not ordinarily permissible. Evidently, the said observation was made with reference to the identification of the multiplicand as also the multiplier. In the light of the said observation and looking into the Second Schedule it can only be said that the Tribunal has correctly taken the annual income of deceased Steev Stephen who was a student aged 14 years as Rs. 15,000/-. Evidently, the said observation was made with reference to the identification of the multiplicand as also the multiplier. In the light of the said observation and looking into the Second Schedule it can only be said that the Tribunal has correctly taken the annual income of deceased Steev Stephen who was a student aged 14 years as Rs. 15,000/-. Then the question is whether the Tribunal went wrong in fixing the multiplier and that question is also to be looked into in the light of the said decision. Such a consideration would reveal that it was wrongly fixed by the Tribunal. It is to be noted that in terms of the Second Schedule which is to be followed for fixing the multiplier going by the decision in R.K. Malik's case (supra), considering the fact that the deceased was aged less than 15 years the multiplier applicable is 15'. At any rate, it is impermissible to fix the multiplier with reference to the age of the parents of the deceased in the light of the decision of the Hon'ble Apex Court in Sarla Verma v. Delhi Transport Corporation (2010 (2) KLT 802 (SC)). The further grievance of the appellant is regarding the non-reckoning of future prospects of the deceased, while fixing the multiplicand. In the light of the decision in R.K. Malik's case (supra) certainly, the appellant is justified in taking up the said contention. Taking into account the fact that the deceased was aged 14 years and was studying in the IXth standard and the decisions on the issue, we are of the view that it would only be proper to add 50% to the annual income reckoning the future prospects for fixing the multiplicand. But, at the same time, for arriving at the multiplicand applicable one third of the income thus arrived at has to be deducted. On such addition and deduction the annual income reckoned for the purpose would be Rs. 15,000/- and on multiplying the same with 15', the multiplier applicable, the appellant would be entitled to get a compensation of Rs. 2,25,000/-. But, the Tribunal has already granted an amount of Rs. 80,000/- under the said head. Hence, after deducting the said amount the appellant is entitled to get only an additional amount of Rs. 1,45,000/- under the head 'loss of dependency'. Towards funeral expenses as against the claim of Rs. 2,25,000/-. But, the Tribunal has already granted an amount of Rs. 80,000/- under the said head. Hence, after deducting the said amount the appellant is entitled to get only an additional amount of Rs. 1,45,000/- under the head 'loss of dependency'. Towards funeral expenses as against the claim of Rs. 15,000/- the Tribunal granted only Rs. 5,000/-. The contention of the appellant is that it requires a modification in the light of the decision of the Hon'ble Apex Court in Rajesh v. Rajbir Singh (2013(3) KLT 89(SC)). In the said decision the Hon'ble Apex Court held that in the absence of any evidence of higher expenses a minimum of Rs. 25,000/- has to be granted towards funeral expenses. In such circumstances, after deducting the amount already granted an amount of Rs. 20,000/- is awarded under the said head. Towards 'pain and suffering' the appellant claimed Rs. 25,000/-, but, the Tribunal granted only an amount of Rs. 5,000/-. Evidently, the deceased Steev Stephen succumbed to the injuries sustained in the accident. But, the exact date and time regarding his death was not brought on record. But, at the same time, a perusal of the postmortem certificate dated 11.5.2005 would undoubtedly reveal that rigor mortis was present at the time of the postmortem. In such circumstances, taking into account the time of the accident and the time of conduct of the postmortem and the nature of the injuries including head injuries, it has to be taken that the deceased must have suffered enormous pain at least for a period of 2 days. In such circumstances, we are of the view that the amount granted under the head 'pain and suffering' viz., Rs. 5000/- is too low. Taking note of the age of the deceased and the nature of the injuries, as is obvious from Ext.A3, we are inclined to grant an amount of Rs. 20,000/-, over and above the amount granted by the Tribunal under the said head. Thus, the appellant is entitled to get an additional compensation of Rs. 1,85,000/-. 16. In the result, M.A.C.A. No. 258 of 2011 17. This appeal is allowed to the extent indicated above. The appellant will be entitled to a sum of Rs. 2,40,000/- in addition to what is already awarded under the impugned award, with interest at the rate of 8% per annum from the date of petition till the date of realization. 16. In the result, M.A.C.A. No. 258 of 2011 17. This appeal is allowed to the extent indicated above. The appellant will be entitled to a sum of Rs. 2,40,000/- in addition to what is already awarded under the impugned award, with interest at the rate of 8% per annum from the date of petition till the date of realization. It is awarded. The 5th respondent is directed to deposit the said additional amount of compensation along with interest within three months from the date of receipt of copy of this judgment. Parties to bear the respective costs. M.A.C.A. No. 377 of 2011 18. This appeal is allowed as mentioned above. The appellant will be entitled to get an additional compensation of Rs. 1,85,000/-, over and above what has been awarded by the Tribunal. It is awarded. The 5th respondent shall deposit the same with interest at the rate of 8% per annum from the date of the petition till the date of realization within three months from the date of receipt of copy of this judgment. Parties to bear the respective costs.