IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 442 of 1997(A)
1. BABY JOHN
For Petitioner :SRI.MATHEW SEBASTIAN
For Respondent :SRI.GEORGE CHERIAN (THIRUVALLA)
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice HARUN-UL-RASHID
O R D E R
KURIAN JOSEPH & HARUN-UL-RASHID, JJ.
---------------------------------------------------------------- M.F.A. NOS. 442, 353, 398, 774 & 562 OF 1997
---------------------------------------------------------------- Dated this the 15th day of February, 2008
The above appeals arise from the common award passed by the Additional Motor Accidents Claims Tribunal, Alappuzha in O.P.(MV) Nos.699, 700 and 1104 of 1993. M.F.A. No.442 of 1997 is filed against the award in O.P.(MV) No.699 of 1993. The appellants who are the claimants in the said original petition are respectively the father, mother and brother of deceased Monisha. M.F.A. No.353 of 1997 is filed by the sole claimant against the award passed in O.P.(MV) No.700 of 1993. The claimant in the said case is the mother of the deceased who is also the second claimant in O.P.(MV) No.699 of 1993. Both the appeals are filed by the claimants challenging the quantum of compensation. M.F.A. Nos.398 and 774 of 1997 are filed by the Managing Director of the Kerala State Road Transport Corporation, Thiruvananthapuram (for short "the K.S.R.T.C.") who is the third respondent in O.P.(MV) Nos.699 and 700 of 1993, challenging the award by which 20% liability was fixed on it. MFA NOS.442/97 & CON. CASES. 2
M.F.A. No.562 of 1997 arises from the award passed in O.P.(MV) No.1104 of 1993 by the same Tribunal. The said appeal is filed by the K.S.R.T.C. claiming enhancement for the damage caused to the bus. Parties to these appeals are referred to as petitioners and respondents as mentioned in O.P.(MV) No. 699 of 1993.
2. The facts of the case in nut shell are as follows:
O.P.(MV) No.699 of 1993 was filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ("the M.V. Act") claiming compensation for the death of Monisha Unni who died in a motor vehicle accident on 5.12.1993 at 6 a.m. at X'Ray Junction, Cherthala. The petitioners are the father, mother and brother of the deceased. The first and second respondents are respectively the owner and insurer of the car in which the deceased was travelling. The third and fourth respondents are respectively the owner and driver of the bus. The deceased Monisha was a famous cine artist and dancer. She was aged 21 at the time of her death. She bagged the National award for the first film in which she acted at the age of 14. The deceased had acted in 25 films and in 1992 itself she had acted in six films. The petitioners stated that deceased Monisha was an expert in Bharathanatyam, Mohiniyattom and other classical dances, that she used to perform dance programmes every year in the U.S.A., U.A.E., MFA NOS.442/97 & CON. CASES. 3
Kuwait and other Gulf countries as well as in Kerala and other States and that she used to get Rs.1,50,000/- for a single set of programme in Gulf countries and Rs.10,000/- for one programme in Kerala and other States. They also stated that the deceased used to get Rs.50,000/- to Rs.1,00,000/- for a single film and that her annual income was more than Rs.6,00,000/-. According to them, had it not been for the accident, the deceased would have continued in her profession for at least twenty years more. They, therefore, claimed Rs. one crore as compensation, but limited their claim to Rs.60,00,000/-. The petitioners further stated that the accident occurred due to the negligence of the driver of car bearing Registration No..KDE 3774 in which the deceased was travelling and the driver of K.S.R.T.C. bus bearing Registration No.KLX 6139. The driver of the car and another person also died in the accident. The claim was resisted by respondents 1 to 4. The first and second respondents contended that the accident occurred due to the negligence on the part of the fourth respondent, the driver of the bus and hence they are not liable to pay any compensation. Though the insurance policy of the car was admitted, they disputed the income of the deceased and the dependency of the petitioners. The third and fourth respondents filed a joint written statement denying their liability to pay compensation. According to them, the accident occurred due to the negligence on the part of the driver of the car. They also disputed the MFA NOS.442/97 & CON. CASES. 4
income of the deceased and the dependency of the petitioners. The second petitioner also filed another O.P.(MV) No. 700 of 1993 claiming compensation for the injuries sustained by her in the accident. Both these Original Petitions and O.P.(MV) No.1104 of 1993 filed by the K.S.R.T.C. were tried together. The mother of the deceased was examined as PW.1. Four other witnesses were examined on the side of the petitioners in O.P. (MV) Nos.669 and 700 of 1993 as PWs.2 to 5 and Exts.A1 to A81 were marked. Ext.B1 was marked on the side of the respondents. PWs.1 to 3 were examined on the side of the petitioner in O.P.(MV) No.1104 of 1993 and Exts.A1 to A6 were marked. The father, mother and brother of deceased Monisha who are the petitioners in O.P.(MV) No.699 of 1993 claimed Rs.60,00,000/- as compensation for the death of Monisha. The mother of the deceased who is the claimant in O.P.(MV) No.700 of 1993 claimed Rs.5,00,000/- as compensation for the injuries sustained by her in the accident.
3. The Tribunal found that the accident occurred due to the negligence on the part of the driver of the car and that the K.S.R.T.C. bus driver also contributed to the accident in the proportion of 80% and 20% . By a common award dated 6.9.1996 the Tribunal awarded Rs.9,49,000/- with 12% interest from the date of the Original Petition till realisation to MFA NOS.442/97 & CON. CASES. 5
the claimants in O.P.(MV) No.699 of 1993. The first petitioner was granted Rs.3,00,000/-, the second petitioner Rs.5,00,000/- and the balance amount of Rs.1,49,000/- was granted to the third petitioner. The petitioners were allowed to realise 80% of the total amount of Rs.9,49,000/- with 12% interest from respondents 1 and 2 and the balance 20% with 12% interest from respondents 3 and 4. The Tribunal also allowed partly the claim in O.P.(MV) No.700 of 1993. The mother of the deceased who is the petitioner in O.P.(MV) No.700 of 1993 was permitted to realise an amount of Rs.2,42,500/- from the respondents therein with 12% interest from the date of the petition till realisation. In that case also, the second respondent was directed to pay 80 % of the award amount and the third respondent was directed to pay 20% of the amount. The petitioner in O.P.No.1104 of 1993 was allowed to realise from the first and second respondents therein 80% of Rs.36,180/- (Rs.28,944/-) with 12% interest per annum from the date of the petition till realisation. The award passed by the Tribunal is under challenge in these appeals.
4. M.F.A. NO.442 OF 1997: One of the questions to be considered in this appeal is whether a brother of a person killed in a motor vehicle accident can claim compensation in an application filed under Section 166 of the M.V. Act. The appeal is filed by the father, mother and brother of MFA NOS.442/97 & CON. CASES. 6
the deceased. who are the claimants in O.P.(MV) No.699 of 1993, being aggrieved by the inadequacy of the compensation awarded. Section 166(1) of the M.V.Act states the different set of persons who can file applications for compensation arising out of an accident of the nature specified in sub- section(1) of Section 165 of the M.V.Act. Sub-clause ) of Section 166(1) is extracted below:
"Where death has resulted from the accident by all or any of the legal representatives of the deceased."
Claim under Section 1-A of the Fatal Accidents Act, 1855 can be made only for the benefit of spouse, parent and child of the deceased; it cannot be made for the benefit of brother or other relations of the deceased. The scope of Section 166 of the M.V.Act is wider and more comprehensive and under this provision claim can be made by or for the benefit of all the legal representatives of the deceased. The expression 'legal representative' has not been defined in the Act. Definition of the expression 'legal representative' has been incorporated in Section 2(11) of the Code of Civil Procedure, 1908. According to this definition, 'legal representative' means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and MFA NOS.442/97 & CON. CASES. 7
where a party sues or is sued in a representative character the person on whom the estate devolves or the party so suing or sued. The above definition, no doubt, in terms does not apply to a case before the Claims Tribunal but it has to be stated that even in ordinary parlance the said expression is understood almost in the same way in which it is defined in the Code of Civil Procedure. The definition reflects the sense in which the expression is understood ordinarily and, therefore, must govern cases before the Tribunal. Ordinarily, heirs of the deceased are the persons who represent the estate of the deceased and must be taken to be his legal representatives. A legal representative in a given case need not necessarily be the wife, husband, parent and child. It is thus clear that in case of death of a person in a motor vehicle accident, compensation can be claimed only by the legal representatives. They may claim besides special damages etc. compensation for economic loss and loss to the estates. Viewed in this light, brothers or other relations of the deceased who are not the heirs of the deceased, not being his legal representatives, cannot claim compensation. This is so even if as a matter of fact they were dependent on the deceased for financial help.
5. Learned counsel appearing for the Insurance Company submitted that when the parents are alive, siblings cannot be legal heirs. Under MFA NOS.442/97 & CON. CASES. 8
Section 15(1) of the Hindu Succession Act, the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16 - (a) firstly, upon the sons and daughters (including the children of any pre- deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; ) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly upon the heirs of the mother. Section 16 of the Hindu Succession Act regulates the order of priority among the five groups of heirs mentioned in Section 15(1) and the ratio of shares for each group. According to Rule 1 of Section 16 of the Hindu Succession Act, among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Thus it is clear that the five groups are in the descending order and that the heirs in each of the group will take simultaneously. In the decision reported in Gujarat State Road Transport Corporation v. Ramanbhai Prabhabhai, 1987 ACJ 561 (SC) which related to the case of a claim petition filed by brothers of a minor child who died in a motor vehicle accident, on the basis that they were the heirs and legal representatives of the deceased, the Supreme Court observed that in Indian families brothers, sisters and brothers' children and sometimes foster children live together and they are dependent upon the bread-winner of the family and if the bread-winner is MFA NOS.442/97 & CON. CASES. 9
killed on account of a motor vehicle accident, there is no justification to deny them compensation. The Supreme Court held that the brother of a person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110-A of the Act, if he is a legal representative of the deceased.
6. The decision of the Supreme Court cited supra was followed by the Madhya Pradesh High Court, Indore Bench in the decision reported in Vaman v. Ved Prakash, 2007 ACJ 174 and by a Division Bench of the High Court of Judicature at Gauhati in the decision reported in Union of India v. Golendra Moshahari, 2005 ACJ 263 . In the latter decision, the Division Bench held that the brother of the deceased is not a heir when the father is alive. The Court observed that under the Hindu Succession Act, when the father is alive, the brother has no right to claim property of his deceased brother as heir. Hence, the brother not being the heir, the compensation could not have been awarded in his favour individually nor along with his father.
7. Learned counsel appearing for the claimants invited our attention to the decision reported in Maharashtra Road Transport Corporation v. Tulsa Bai Tukaram Kadava and Others, 1990 ACJ 523 and Shyama MFA NOS.442/97 & CON. CASES. 10
v. Radhyeshyam, 1992 ACJ 863 (MP). Counsel submitted that in the former decision, the High Court of Judicature at Bombay had come to a different conclusion relying on the decision of the Supreme Court in the decision reported in Gujarat State Road Transport Corporation v. Ramanbhai Prabhabhai, 1987 ACJ 561 (SC). With great respect, we are of the view that the above conclusion is based on a misappreciation of the decision of the Supreme Court. A Division Bench of the Calcutta High Court in the decision reported in Monorama Devi v. Oriental Insurance Co. Ltd., 2003 ACJ 278 examined the question as to whether the father who is a class II heir is entitled to compensation along with widow and mother of the deceased who are class I heirs and held that the father who is a class II heir will not be entitled to claim compensation.
8. A reading of Section 166 of the M.V. Act read with the decisions cited supra, we are of the view that the legal position is that claim in the case of a fatal accident under Section 166 of the M.V. Act can be made by the legal representatives of the deceased and right is not confined for the benefit of the spouse, parent or child of the deceased who alone can claim compensation under Section 1-A of the Fatal Accidents Act. The scope of Section 166 of the M.V.Act is wider and more comprehensive. Under this provision, the legal representative in a given case need not necessarily be MFA NOS.442/97 & CON. CASES. 11
a wife, husband, parent and child and claim can be made by or for the benefit of all the legal representatives of the deceased. In the case of Fatal Accidents Act, such claim can be made only for the benefit of spouse, parent and child of the deceased. A brother of the deceased may be a legal representative of the deceased in the absence of preferential heirs under the personal law governing the parties and if so, he can claim compensation. But he cannot do so, if he is not a legal representative entitled to succeed to the estate of the deceased. In this case, the third appellant is not a legal representative since the mother and father who are alive are the preferential heirs and as such, the third appellant is not entitled to enhanced compensation claimed in this appeal. The second respondent/Insurance company has not filed appeal challenging grant of compensation to the third appellant/brother in this case and, therefore, we are not called upon to interfere with the grant of compensation by the Tribunal to the brother of the deceased.
9. Dissatisfied with the amount awarded by the Tribunal, the claimants in O.P.(MV) No.699 of 1993 filed M.F.A. No.442 of 1997 for enhancement of the compensation. We have already found that the third appellant who is the third petitioner in the Original Petition is not entitled to claim enhanced compensation in this appeal since he is not a legal heir. MFA NOS.442/97 & CON. CASES. 12
Therefore the appeal filed at his instance is not maintainable. We shall, therefore, consider the claim of appellants 1 and 2 in this appeal for enhanced compensation.
10. Learned counsel appearing for the appellants contended before us that the Tribunal went wrong in fixing the monthly income of deceased Monisha at Rs.10,000/-. The deceased was aged 21 at the time of the accident. The first claimant, father of the deceased was aged 52 and the second claimant, mother was aged 46 at the time of the accident. The deceased was a cine artist and a famous dancer during the relevant time. It has come out in evidence that she was a dancer of good reputation even during her earlier days and that she used to earn sufficient income from that source. Further, as a famous dancer she used to get programmes all over India and abroad. Evidence would show that the deceased had performed dance programmes in the U.S.A. and the Gulf countries on several occasions. According to the claimants, the deceased used to earn between Rs.1,50,000/- and Rs.3,00,000/- for two weeks dance programmes abroad and for the dance programmes in Kerala and other States she used to get Rs.10,000/- for each programme and that she used to get a minimum of 30 dance programmes a year in India. Another source of income of the deceased is the remuneration that she used to get as an MFA NOS.442/97 & CON. CASES. 13
actress. The deceased had acted as heroine in many Malayalam films and in other regional languages. At the age of 14, the deceased got the National award for her first film "Nakhakshathangal". It is the case of the petitioners that no other actress in India had won the National award at such a young age. By the time she was 21 she had acted in more than 25 films and that the remuneration that she received from acting was between Rs.50,000/- to Rs.1,00,000/- excluding all expenses. Besides her roles in the films, the deceased was an active participant as an actress in television programmes and she used to earn from the said source also. The deceased had also secured many merit certificates in dance and music as a student. Her proficiency in dancing, music and other arts are proved by Exts.A8 to A18 merit certificates. Exts.A19, A20, A33, A34, A35, A36, A37, A43, A46, A47, A48, A50, A51, A58, A67 and A73 are some of the brochures which show the programmes undertaken by the deceased. A number of invitation letters also have been produced evidencing her busy engagements in dance programmes both in India and abroad. Exts.A21 to A32 and Exts.A38 to A42, A44, A45 and A49 are some of the invitation letters. Ext.A52 is a letter sent to the deceased stating that Rs.3,00,000/- has been paid for the cultural shows held in the Gulf countries from 1.11.1992 to 20.11.1992. Ext.A53 would show that she was the award winner as actress of the 34th National Film Festival, 1987. MFA NOS.442/97 & CON. CASES. 14
The income of deceased Monisha for eight months during 1992-1993 is shown as Rs.1,02,120/-. Ext.A54 is the acknowledgement issued by the Income Tax Department. Ext.A55 is a certificate issued by PW.2 who was handing the accounts of the deceased stating that during 1992-93, deceased Monisha was having a total income of Rs.4,02,120/-. PW.2 has spoken in support of Ext.A55. According to him no income tax need be paid for the remuneration that the deceased received for conducting programmes outside India. He also testified that during the said period deceased Monisha got Rs.3,00,000/- towards remuneration for the programmes performed by her in the Gulf countries. Thus, an amount of Rs.one crore was claimed as compensation towards loss on account of the death of deceased Monisha , but the claim was limited to Rs.60,00,000/- for the purpose of court fee.
11. The Tribunal had assessed the monthly income of the deceased as Rs.10,000/- and fixed the contribution at Rs.7000/- after deducting a sum of Rs.3000/- towards personal expenses. The annual dependency was thus calculated at Rs.84,000/- and a multiplier of 11 was applied. Accordingly, the Tribunal found that the claimants are entitled to an amount of Rs.9,24,000/- towards compensation for loss on account of the death of Monisha.
MFA NOS.442/97 & CON. CASES. 15
12. Considering the fact that deceased Monisha was a reputed film actress and a classical dancer during the relevant time undertaking various dance programmes all over India and abroad, we are of the view that the monthly income assessed by the Tribunal is grossly inadequate. Ext.A54 shows that her income during the relevant time for eight months was Rs.1,02,120/-. Going by that calculation, the income for 12 months would come to Rs.1,53,180/-. Going by the evidence of PW.1, deceased Monisha used to get an average income of Rs.3,00,000/- for her dance programmes abroad. The evidence of PW.1 would also show that the deceased was getting Rs.10,000/- for each dance programme in Kerala and other States and she was having 30 programmes per year. Besides this, it is also testified that the remuneration of the deceased for acting in the films varied from Rs.50,000/- to Rs.1,00,000/- and that during the year of her death she had acted in five films. The evidence of PW.1 regarding the source of income of the deceased has not been challenged by the respondents. On a moderate estimate, we find that a minimum of Rs.1,00,000/- can be taken as the annual income of the deceased from her programmes abroad which were not accounted in her income tax returns. We thus fix the the total annual income of deceased Monisha as Rs. Rs.2,53,180/- rounded as Rs.2,52,000/- Thus Rs.21,000/- is fixed as the MFA NOS.442/97 & CON. CASES. 16
monthly income of the deceased. Rs.14,000/- is taken as the monthly contribution after deducting Rs.7000/- towards personal expenses. The annual dependency would come to Rs.1,68,000/-.
13. Learned counsel appearing for the appellants contended that the multiplier of 11 adopted by the Tribunal is too low considering the age of the deceased who was only 21 at the time of her death. Citing the decisions reported in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas, 1994 ACJ 1, U.P. State Road Transport Corporation v. Trilok Chandra, 1996 (2) K.L.T. 218 (SC), Smt. Supe Dei and Others v. M/s. National Insurance Company Ltd. and another, JT 2002 (Supp.) 451 (SC) Jyothi Kaul v. State of M.P. (2006) 6 SCC 306, United India Insurance Company Ltd. Patricia Jean Mahajan, JT 2002 (5) SCC 74, New India Assurance Company Ltd. v. Charlie, 2005(3) K.L.T. 227 (SC), U.P. State Road Transport Corporation v. Krishna Bala, 2006 (3) K.L.T. SN. 107(SC) and New India Assurance Co. v. Kalpana and others (2007) 2 SCC (Cri.) 941, counsel contended that considering the age of the deceased and the age of the claimants and taking into account the II schedule of the M.V. Act, 16 is the appropriate multiplier to be adopted. The age of claimants 1 and 2 at the time of the accident was 52 and 46 respectively. For fixing the MFA NOS.442/97 & CON. CASES. 17
multiplier, several factors have to be taken note of. The deceased was unmarried. She might have got married in future in which case a major portion of her income would have been directed towards her own family other than her parents. The establishment of the parents who had their separate earnings being employed and educated also has relevance. The possibility of reduction in contribution once a person gets married also is a reality. Compensation is relatable to the loss of contribution of the pecuniary benefits. Thus the multiplier to be adopted would depend on various circumstances. Age of the deceased, age of the dependents, life expectancy etc. are some of the factors relevant for consideration. Future prospects in the profession also have to be taken into consideration. The deceased at the time of her death was a cine artist doing leading roles in the films in which she had acted. Opportunities for doing leading roles such as the role of heroine depends on various factors. Whether the deceased can continue to act in such roles and when she would be replaced by other actresses are matters of uncertainty. Unlike other professions, a cine artist may not continue in the same degree in the years to come. At the same time, the fact that the deceased was a reputed classic dancer and that she could continue her profession as a classic dancer for many years also have to be born in mind. Since the profession which the deceased had chosen is a risky one, risk involved in the profession also MFA NOS.442/97 & CON. CASES. 18
has to be taken into consideration.
14. The Tribunal had taken into consideration various imponderables in fixing the multiplier. It may not be correct to relate multiplier with the number of years one may be able to work in this particular field. The Tribunal adopted 11 as the multiplier. Taking into account the various factors relevant for consideration and following the principles laid down in the decisions reported in Jyothi Kaul v. State of M.P. (2002) 6 SCC 306 and Municipal Corpn. of Greater Bombay v. Laxman Iyer (2003)8 SCC 731, we are of the view that the multiplier of 6 is just, proper and reasonable. Since no appeal has been filed by the affected parties challenging the multiplier of 11 adopted by the Tribunal, we cannot interfere with the adoption of the said multiplier. For the purpose of granting additional compensation in this appeal, we fix 6 as the multiplier. As stated earlier, taking the monthly income of the deceased as Rs.14,000/-, the annual dependency would come to Rs.1,68,000/-. The annual dependency calculated by the Tribunal is Rs.84,000/-. For the purpose of this appeal, we have worked out the annual dependency at Rs. 1,68,000/-. After deducting Rs.84,000/- already awarded by the Tribunal, the balance amount would come to Rs.84,000/-. By adopting 6 as the multiplier, the total amount would come to Rs.5,04,000/-. We award MFA NOS.442/97 & CON. CASES. 19
Rs.5,04,000/- as enhanced compensation to appellants 1 and 2 in this appeal towards loss on account of the death of deceased Monisha. The Tribunal awarded Rs.9,49,000/- (Rs.9,24,000/- + Rs.25,000/- under other heads). The said amount was apportioned among the petitioners. Rs.3,00,000/- was awarded to the first petitioner, Rs.5,00,000/- to the second petitioner and Rs.1,49,000/- to the third petitioner. Being the legal heirs of deceased Monisha who are entitled to inherit the estate of the deceased equally, we are of the view that the first and second appellants are entitled to share equally the enhanced compensation of Rs.5,04,000/- awarded by this Court.
15. M.F.A. No.353 of 1997: This appeal arises from O.P.(MV) No.700 of 1993 filed by the mother of the deceased claiming enhanced compensation for the injuries sustained by her in the accident. The petitioner was aged 46 years at the time of the accident. She was a cine artist, a dancer and a dance teacher. As PW.1, she testified her monthly income as Rs.5000/-. She sustained serious injuries in the accident as can be seen from Ext.A50 wound certificate. PW.1 testified that she suffered a lot because of the injuries and is still suffering. On the date of the accident, she was taken to the Medical Trust Hospital, Ernakulam and considering the seriousness of the injuries, she was removed to Lake Side MFA NOS.442/97 & CON. CASES. 20
Medical Centre and Hospital,Bangalore. Ext.A16 is the discharge summary issued from the Medical Trust Hospital, Ernakulam and Ext.A62 is the discharge summary issued from Lake Side Medical Centre and Hospital, Bangalore. Ext.A61 is the disability certificate issued by PW.4. Permanent disability has been estimated at 30%. According to PW.4, the disability is permanent and there is only a remote chance of recovery. The petitioner was also advised to wear LS belt during day time for indefinite period. The petitioner was running a dance class. She is a dance teacher by profession and had also acted in films. Exts.A66, A67, A68, A69, A71 and A72 would reveal the above said facts. In this appeal, the appellant/claimant challenges the inadequacy of the compensation awarded by the Tribunal. Though she pleaded and testified that her monthly income was Rs.5000/-, the Tribunal fixed Rs.3000/- as the monthly income. No reasons are stated for reducing the amount to Rs.3000/-. The fact that the appellant is a dancer by profession and that she was running a dancing school is not disputed. Therefore, Rs.5000/- claimed by her as the monthly income is reasonable. Taking Rs.5000/- as the monthly income, for 30% disability, the amount of compensation will come to approximately Rs.1500/- per month. The annual loss will be Rs.18,000/- and applying 11 as the multiplier, total compensation will come to Rs.1,98,000/-. The Tribunal granted Rs.1,18,800/- as MFA NOS.442/97 & CON. CASES. 21
compensation towards permanent disability. We, therefore, award an additional amount of Rs.79,200/- under that head. The appellant is entitled to an additional compensation of Rs.79,200/- in addition to Rs.2,42,500/- awarded by the Tribunal.
16. M.F.A.Nos.398 and 774 of 1997: These two appeals are filed by the third respondent in O.P.(MV) Nos.699 and 700 of 1993 challenging their liability to pay 20% of the compensation fixed by the Tribunal. The third respondent is the Managing Director of the K.S.R.T.C. Learned counsel appearing for the appellants/claimants in M.F.A. Nos.442 of 1997and 353 of 1997 contended before us that the appellant in M.F.A. No.398 of 1997 and 774 of 1997 failed to deposit the stipulated amount under Section 173 of the M.V. Act and, therefore, the said appeals are not maintainable. Section 173 of the M.V. Act mandates that no appeal by a person who is required to pay any amount in terms of an award shall be entertained by the High Court unless he has deposited Rs.25,000/- or 50% of the amount so awarded, whichever is less, in the manner directed by the High Court. Evidently, no amount as prescribed in the section has been deposited by the appellants till this date. The appeals are of the year 1997. Learned counsel for the claimants brought to our notice the Bench decision of this Court reported in Baby v. Shyni, 2000(1)K.L.T.718 MFA NOS.442/97 & CON. CASES. 22
wherein this Court had held that once the legislature in its wisdom has thought it fit to impose a condition for entertaining an appeal, this Court may not be justified in sitting in judgment over the legislative wisdom and policy in regard to filing of appeals - however hard the case may be - more so, when it is remembered that right of appeal is not a vested right or a constitutional right, but a creature of the statute. This Court also observed that there is no inherent right of appeal from the original forum unless such a right is conferred by the statute which creates the forum and that the legislature while creating a right of appeal can also impose conditions for the entertainment of the appeal.
17. Going by Section 173 of the M.V. Act, in order to maintain an appeal, the appellant who is directed to pay compensation has to make a deposit of Rs.25,000/- or 50% of the amount awarded, whichever is less. No such deposit has been made by the appellant in M.F.A. Nos.398 of 1997 and 774 of 1997. The appellant in the above appeals has now filed I.A.No.2595 of 2007 and 2615 of 2007 respectively seeking leave of this Court to remit the amount required towards pre-appeal deposit as provided under Section 173(2) of the M.V.Act. In the affidavits filed in support of the respective applications, it is stated that the Registry of this Court did not point out any such filing defect at the time of admission and that if the MFA NOS.442/97 & CON. CASES. 23
Registry had insisted, the appellant would have remitted the amount required under the provision. It is further stated in the affidavits that since the appeals have been admitted and are pending since 1997, dismissal of the appeals on the above ground will cause serious prejudice and loss to the appellant/Corporation.
18. Section 173 of the M.V. Act does not give any power to the court to dispense with the deposit mentioned in Section 173(1). That is a mandatory requirement to entertain an appeal. Merely because the appeals have been admitted, it cannot be taken that this Court had entertained the appeals and that the same shall be held maintainable. When an infirmity in the appeal is pointed out, necessarily this Court can reject the appeal. The Bench decision cited supra is followed by another Single Bench decision reported in Kesavan Nambeesan v. Madhavan, 2003(2) K.L.T.
785. In the light of the aforesaid decisions, M.F.A. Nos.398 of 1997 and 774 of 1997 are not liable to be entertained and accordingly they are dismissed.
19. M.F.A. No.562 of 1997: This appeal is filed by the K.S.R.T.C. against the award in O.P.(MV) No.1104 of 1993. The claim is for Rs.41.180.85. According to the petitioner, the amount claimed in the MFA NOS.442/97 & CON. CASES. 24
Original Petition was spent for repairing the bus. Ext.A6 is the job card produced in support of the claim. The Tribunal accepted the evidence adduced by the petitioner in support of the claim and awarded Rs.36,180/- as against the total claim of Rs.41,180.85. The Tribunal reduced Rs.5000/- from the total claim stating that Rs.11,377.35 claimed under the head 'general overhead' is very high. The appeal was directed against the said award mainly contending that the reduction of Rs.5000/- from the total claim is illegal and unjustifiable and that there was no contra evidence adduced by the respondents to dispute the legal claim made by the appellant. The Tribunal by the impugned award allowed the claim by permitting the petitioner to realise 80% of the award amount from respondents 1 and 2 with 12 % interest per annum from the date of petition till realisation. The reasons stated by the Tribunal for reducing Rs.5000/- from the total claim are not appealing to us. Pws.1 and 2 were examined and Exts.A1 to A6 were produced by the appellant in support of the claim. Ext.A5 is the photograph showing the accident and Ext.A6 is the job card issued by PW.1 to prove the actual amount spent by the petitioner for repair of the K.S.R.T.C. bus. It is seen that no contra evidence was adduced by any of the respondents. Therefore, the reasons stated by the Tribunal for reducing Rs.5000/- from the total claim appears to be on a wrong understanding of the claim and the evidence adduced in support of MFA NOS.442/97 & CON. CASES. 25
the claim. We are of the view that the appellant/K.S.R.T.C. is entitled to Rs.41,180/- for the damage caused to the bus and thus the award is modified to that extent. In all other respects, the award passed by the Tribunal in O.P.(MV) No.1104 of 1993 stands confirmed.
20. Appellants 1 and 2 in M.F.A. No.442 of 1997 are allowed to realise from respondents 1 and 2 to the extent of 80% of the enhanced amount of Rs.5,04,000/- with 8% interest from the date of petition till realisation. The balance 20% of Rs.5,04,000/- shall be realised from the third respondent with 8% interest from the date of petition till realisation. Appellants 1 and 2 shall share the said amount in equal shares. Respondents 2 and 3 are directed to pay 80% and 20% of the enhanced amount respectively within one month from today.
21. The appellant/claimant in M.F.A. No.353 of 1997 is allowed to realise from respondents 1 and 2 to the extent of 80% of the enhanced amount of Rs.79,200/- with 8% interest from the date of petition till realisation. The balance 20% of Rs.79,200/- shall be realised from the third respondent with 8% interest from the date of petition till realisation. Respondents 2 and 3 are directed to pay 80% and 20% of the enhanced amount respectively to the appellant within one month from today. MFA NOS.442/97 & CON. CASES. 26
22. The appellant in M.F.A. No.562 of 1997 is allowed to realise from respondents 1 and 2 80% of Rs.41,180/- less the amount awarded by the Tribunal with 8% interest per annum from the date of petition till realisation. The second respondent shall pay 80% of the enhanced amount within one month from today.
In the result, M.F.A. Nos.442 and 353 of 1997 are partly allowed, M.F.A. No.562 of 1997 is allowed and M.F.A. Nos.398 and 774 of 1997 are dismissed. There will be no order as to costs.
(KURIAN JOSEPH, JUDGE)
MFA NOS.442/97 & CON. CASES. 27
KURAIN JOSEPH &
M.F.A.NOS.442, 353, 398,
774 & 562/1997
15th FEBRUARY, 2008.