Kerala High Court
K.J.Abraham vs C.J.Joseph on 23 June, 2011
Bench: A.K.Basheer, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 2525 of 2010()
1. K.J.ABRAHAM, S/O. JOSEPH,
... Petitioner
2. LILLYKUTTY, W/O. K.J.ABRAHAM,
3. JOLLY ABRAHAM, D/O. K.J.ABRAHAM,
4. TOBIN ABRAHAM, S/O. K.J.ABRAHAM,
Vs
1. C.J.JOSEPH, S/O. OUSEPH,
... Respondent
2. SHIBU, S/O. SREEDHARAN,
3. NATIONAL INSURANCE CO. LTD.,
For Petitioner :SRI.MATHEW JOHN (K)
For Respondent :SRI.MATHEWS JACOB (SR.)
The Hon'ble MR. Justice A.K.BASHEER
The Hon'ble MR. Justice P.Q.BARKATH ALI
Dated :23/06/2011
O R D E R
A.K.BASHEER & P.Q.BARKATH ALI, JJ.
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M.A.C.A.No. 2525 of 2010
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Dated this the 23rd day of June, 20101
JUDGMENT
Barkath Ali, J.
The short question, which arises for consideration in this appeal filed by the claimants under section 173 of the Motor Vehicles Act, is what is the criteria for awarding costs in a proceedings under the Motor Vehicles Act.
2. Appellants are the father, mother, sister and brother of deceased Roby @ Robin who died in a motor accident. The accident happened on October 1, 2004 at about 3.30 p.m. While the claimant was travelling in a jeep bearing registration No.KL-5A 1699 from Ernakulam to Kaduthuruthy and when they reached near St. Johns Hospital at South Paravur, it collided head on with a stage carriage bus bearing registration No.KL-5A 1070, driven by the second respondent. Roby sustained serious injuries and he succumbed to the injuries while undergoing treatment in the hospital. Alleging negligence against the second M.A.C.A.No. 2525/2010 2 respondent, the claimants filed the O.P. before the Tribunal claiming a compensation of ` 11,86,500/-.
3. Respondents 1 and 2, the owner and driver of the bus, and respondents 4 and 5, the owner and driver of the jeep, remained absent before the Tribunal. The third respondent, the insurer of the bus, filed a written statement admitting the policy but attributed negligence to the fifth respondent, the driver of the jeep. The sixth respondent, insurer of the jeep, filed a written statement admitting the policy, but attributed negligence to the driver of the bus.
4. PWs.1 and 2 were examined and Exts. A1 to A29 were marked on the side of the claimants. Ext.B1 was marked on the side of the respondents. The Tribunal, on an appreciation of the evidence, found that the accident occurred due to negligence of the second respondent, the driver of the bus, and awarded a compensation of ` 4,54,600/- with interest @ 7.5% per annum from the date of petition till realization against respondents 1 to 3. The claimants have come up in appeal challenging the quantum M.A.C.A.No. 2525/2010 3 of compensation awarded by the Tribunal as well as the finding of the Tribunal in not awarding any cost.
5. Heard the counsel for the claimants and the counsel for the Insurance Company.
6. The Tribunal awarded a total compensation of ` 4,54,600/-. Break up of the compensation awarded is as under:-
Loss of dependency : `4,21,200
Transportation : ` 1,500
Freezer charge : ` 400
Incidental expenses : ` 1,500
including life saving machines.
Pain and suffering : ` 10,000
Loss of love and affection : ` 20,000
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Total : ` 4,54,600
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7. Taking into consideration the fact that the deceased was aged 24 and was employed as a Computer Designer and age of the claimants, we feel that the compensation awarded by the Tribunal is just and reasonable. That being so, the claimants are not entitled to any enhanced compensation.
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8. The next point for consideration is whether the claimants are entitled to any cost. If so, how the cost has to be calculated.
9. There is no provision either in the Motor Vehicles Act or under the Claims Tribunal Rules framed thereunder stipulating payment of cost.
10. A Single Bench of this Court in United India Insurance Co. Ltd.V. Padmini Amma, 1986 KLT 581, has held that the award of cost is completely discretionary and exercise of such discretionary power is not ordinarily open to review in proceedings under Article 226 of the Constitution, unless it is shown that the exercise of discretion is perverse or arbitrary or that no reasonable man would have awarded, the costs decreed. Referring to the above decision a Division Bench of this Court in New India Assurance Co. Ltd. V. Koyammu (1991(1) KLT 320) observed thus:-
7. There is no provision either in the Motor Vehicles Act or in the Claims Tribunals Rules M.A.C.A.No. 2525/2010 5 framed thereunder stipulating payment of costs.
It is settled law that the Claims Tribunal is not a court and it is not a court subordinate to the High Court The Civil Rules of Practice, 1971 cannot therefore be made applicable to proceedings before the Claims Tribunal. The High Court of Kerala made the Civil Rules of Practice to regulate the procedure and practice in the subordinate civil courts in the State by virtue of the powers conferred by S. 122 of the Code of Civil Procedure. That section enables the High Court to make rules regulating their own procedure and procedure of the civil courts subject to their superintendence. Since the Claims Tribunal is not a court and since it is not a court subordinate to the High Court we hold that the rules made by the High Court in exercise of the powers conferred by S.122 of the C.P.C. are not applicable to petitions filed under S.110-A of the Motor Vehicles Act.
8. The question then arises as to whether a successful claimant before the Motor Accidents Claims Tribunal can be awarded costs and if so, on what basis. Even the awarding of costs under S.35 of the Code of Civil Procedure is M.A.C.A.No. 2525/2010 6 discretionary, but that discretion must be exercised on judicial principles and not arbitrarily. Similarly awarding the costs is in the discretion of the Tribunal. The general rule is that a successful party is entitled to get costs incurred by him unless he is guilty of misconduct or negligence or there is any other reason for disallowing costs. We find no reason why the general rule cannot be extended to claim petitions filed under the Motor Vehicles Act. We are therefore of the view that a successful party in a claim petition before the Tribunal has to be paid the costs incurred in the petition.
9. A successful claimant should be allowed the court fee paid by him. There may be instances where the claimant has to incur huge expenditure in summoning medical officers and medical experts to prove the nature of injuries and the disability caused. Some of them may have to be paid travelling expenses and daily allowance and if they are coming from distant places a considerable amount has to be spent in this connection. Such evidence is necessitated only to prove the claim and to enable the claimant to get adequate compensation due to M.A.C.A.No. 2525/2010 7 the claimant. The Tribunal has therefore to award the expenses incurred for summoning witnesses and producing or causing production of documents."
In the light of the principles laid down in the above decision, a successful party is entitled to cost. Therefore, in a claim petition filed under the Motor Vehicles Act also the said general rule applies. That being so, in the present case also the claimants are entitled to costs.
11. The next question to be considered is what is the cost to be awarded in a proceedings under the Motor Vehicles Act. In other words, the question would be how the cost has to be calculated in such a case.
12. In United India Insurance Co. Ltd.V. Padmini Amma (Supra) it has been held that provisions under the Civil Rules of Practice are not applicable to proceedings under the Motor Vehicles Act, as the Claims Tribunal is not a court and it is not a court subordinate to the High Court. Rules 6 and 16 of Advocates' Fees Rules, 1969 (Kerala) are also found to be not applicable to claim petitions. But the M.A.C.A.No. 2525/2010 8 Motor Vehicles Rules 1989 has introduced sub-section (2) of section 381, which reads thus:-
"The scale of fees contemplated in the rules regarding fees payable to the advocates in respect of original suits shall apply in the case of applications for compensations."
In view of the introduction of sub-rule (2) to rule 381 of the Motor Vehicles Rules, 1989, we feel that the provisions of Civil Rules of Practice regarding the calculation of costs can be adopted in a proceedings under the Motor Vehicles Act also. The Civil Rules of Practice prescribes Form No.35 to prepare a cost memo in a suit. The same can be adopted in the case of claim petitions filed under the Motor Vehicles Act. Rule 195 of Civil Rules of Practice prescribes items to be included in tabulation of costs in the case of suits. Similar item can be included in preparation of cost memo in the claim petition filed under the Motor Vehicles Act. Rule 6 of Advocates' Rules, 1969 apply to claim petitions also, in view of sub-rule (2) of rule 381 of Kerala Motor Vehicles Rules 1989.
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13. In the result, the appeal is allowed in part. The claimants are found to be entitled to proportionate costs throughout the proceedings. The cost shall be calculated as found above.
A.K.BASHEER, JUDGE.
P.Q.BARKATH ALI, JUDGE.
mn.