Gujarat High Court
Oriental Insruance Company Ltd vs Bhagabhai Goganbhai Kuvarka & 2 on 23 July, 2014
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi
C/FA/2463/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2463 of 2014
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ORIENTAL INSRUANCE COMPANY LTD....Appellant(s)
Versus
BHAGABHAI GOGANBHAI KUVARKA & 2....Defendant(s)
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Appearance:
MR KK NAIR, ADVOCATE for the Appellant(s) No. 1
MR VIJAY J SHAH, ADVOCATE for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
Date : 23/07/2014
ORAL ORDER
The appellant - Oriental Insurance Company Ltd. is before this Court being aggrieved by judgment and award dated 14/06/2013 passed by 6th Additional District Judge (Motor Accident Claims Tribunal) Ahmedabad (Rural) at Mirzapur in Motor Accident Claim Petition No.941 of 2009.
Learned advocate Mr. K. K. Nair appearing for the Insurance Company submitted that the award is erroneous on more than one count.
To start with, learned advocate submitted that the claim petition was filed for an amount of Rs.5,00,000/- and the Tribunal has awarded Rs.6,61,000/- with interest at the rate of 7.5% without there being any permission of amendment in the claim amount. The petitioner named Bhagabhai Goganbhai Page 1 of 11 C/FA/2463/2014 ORDER Kuvarka of Motor Accident Claim Petition 194 of 2009 is aged 20 years, occupation labour, residing at Katcha Chapara Behind Adinath Nagar, Behind Old Octroi Naka, Odhav Ahmedabad. Though it is not specifically mentioned about his education, learned advocate has pointed out that in the affidavit of the applicant which is filed as deposition of the applicant, the applicant has fixed his thumb impression. Learned advocate invited attention of the Court to the averments made in para 7.1 wherein the evidence with regard to injury suffered by the applicant are set out. Relevant part of para7.1 of present appeal reads as under:
"..... serious fracture injuries in the accident and Dr. Adityay Upadhyay has assessed 86% permanent disability vide Disability Certificate Ex.39 and on account of grievous fracture injuries on both hands of the petitioner, the petitioner is suffering from paralysis and therefore, 100% disability body as a whole of the petitioner is required to be considered. It is further submitted that the income of the petitioner is required to be considered as Rs.3000/- p.m......"
It is submitted that without there being any evidence suggesting that there is an amputation of any part of the body, the Tribunal has recorded in para-20 of the impugned judgment and award that present is the case of amputation. Relevant part of para-20 of the impugned judgment and award reads as under:
"However, in the present case, considering the cross examination of the Doctor as well as considering Page 2 of 11 C/FA/2463/2014 ORDER the amputation injury of the petitioner as well as considering the nature of work of the petitioner, it would be just and proper to assess 80% disability body as a whole of the petitioner and it would not be exaggerated."
Learned advocate for the appellant submitted that beside that the Tribunal has failed to appreciate an important aspect of the matter which is brought on record in the cross examination of the claimant. In the cross examination the claimant has admitted that the motor cycle which he was driving which had head on collision with the Bolero Jeep was of the brother of the claimant and that was not having any insurance. Beside that he was not having any license of driving the vehicle.
Learned advocate for the appellant submitted that the Tribunal has passed order for payment of entire amount of award by an account payee cheque relying upon the decision of the Hon'ble Apex Court in the matter of A. V. Padma and other v. R. Venugoal an others, reported in 2012 ACJ
698. Learned advocate for the appellant submitted that in the matter before the Hon'ble Supreme Court, the Hon'ble Court directed the Tribunal to pay entire amount awarded taking into consideration that the petitioner educated and literate person. The Tribunal could not have relied upon that decision for passing direction of payment of full amount of award by an account payee cheque taking into consideration the educational qualification of the claimant who is working as labourer and has put his thumb impression in an affidavit filed Page 3 of 11 C/FA/2463/2014 ORDER by him for his deposition.
Learned advocate for the appellant submitted that the Tribunal has erred in not taking into consideration the guidelines laid down by the Hon'ble Apex Court in the judgment between General Manager, Kerala State Road Transport Corporation, Trivandrum v. Sussama Thomas (Mrs.) and others, reported in (1994) 2 SCC 176. Learned advocate submitted that the Hon'ble Apex Court has laid down detailed guidelines in para-23 of the said decision and it is mandatory on the part of the Tribunal to follow the same. He further submitted that the same guidelines are reiterated even by the High Court in various judgments. Para- 23 of the decision reads as under:
"23. In a case of compensation for death it is appropriate that the Tribunals do keep in mind the principles enunciated by this Court in Union Carbide Corpn. v. Union of India in the matter of appropriate investments to safeguard the feed from being frittered away by the beneficiaries owing to ignorance illiteracy and susceptibility to exploitation. In that case approving the judgment of the Gujarat High Court in Muljibhai Ajarambhai Harijan v. United India Insurance Co. Ltd., this Court offered the following guidelines:
"(i) The Claims Tribunal should, in the case of minors, invariably order the amount of compensation awarded to the minor be invested in long term fixed deposit least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, Page 4 of 11 C/FA/2463/2014 ORDER be allowed to be withdrawn;
(ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (i) above, but if lump sum payment is required for effecting purchases of any movable or immovable property such as, agricultural implements, rickshaw, etc., to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money;
(iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding and existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid;
(iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;
(v) In the case of widows the Claims Tribunal should invariably follow the procedure set out in (i) above;
(vi) In personal injury cases if further treatment is Page 5 of 11 C/FA/2463/2014 ORDER necessary the Claims Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment; (vii) In all cases in which investment in long term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be;
(viii) In all cases Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency.
To meet with such a contingency, if the amount awarded is substantial, the Claims 11 (1982) 1 Guj LR 756 189 Tribunal may invest it in more than one Fixed Deposit so that if need be one such F.D.R. can be liquidated."
These guidelines should be borne in mind by the Tribunals in the cases of compensation in accident cases."
Learned advocate for the appellant submitted that the judgment and award passed by the Tribunal is more than the amount claimed in the claim petition and the same is therefore also not in consensus with the law laid down by the full bench of this Court in the matter of Dr. Urmila J. Sangani v. Pragjibhai Mohanlal Luvana reported in 2000 (2) GLR 1281 wherein full bench is pleased to observe in para-10 as under:
"10. It is true that in Municipal Corporation of Greater Bombay (supra) and other decisions which are relied on Page 6 of 11 C/FA/2463/2014 ORDER by the learned Counsel for the appellant, a view is expressed that as the Tribunal has to determine just compensation, the Tribunal can award compensation more than the amount claimed in the claim petition, but in our respectful opinion, it cannot be said that the decision of the Division Bench of the Bombay High Court reported in 1987 ACJ 311 lays down the correct law when compared to the decisions of two different Division Benches of this Court reported in 19 GLR 492 and 7 GLR 662 as well as subsequent decisions of (1) Bombay High Court reported in 1989(2) ACJ 750, (2) Judgment Today 1997(5) SC 434 and (3) AIR 1996 SC 2777. We are of the respectful opinion that the view expressed by the Division Bench of this High Court in Babu Mansa (supra) and Bai Nanda (supra) lays down correct proposition of law that the Tribunal has no power or jurisdiction to award higher compensation though not claimed by the claimant. It is to be noted that the decision of the Division Bench of this Court was not pointed out to the Division Bench of the Bombay High Court which decided the case of Municipal Corporation of Greater Bombay (Supra). Further it is settled law that the decision of the Tribunal must be confined to questions raised by the parties and it cannot travel beyond the pleadings. If power or jurisdiction to award higher amount of compensation though not claimed by the claimant is read, it is likely to result into startling results. Take an example : where the claimant has claimed total compensation of Rs. 2 lacs and the Tribunal feels that the claimant should be awarded compensation of Rs. 5 lacs. If the power or jurisdiction to award higher amount Page 7 of 11 C/FA/2463/2014 ORDER of compensation though not claimed by the claimant is acceded to, the Tribunal can award a sum of Rs.5 lacs, which would not only cause prejudice to the opposite parties, but will also nullify the scheme of pleadings envisaged by the provisions of the Motor Vehicles Act, 1939 and Motor Vehicles Act, 1988. In Union of India v.
E.I.D. Parry (India) Ltd. (2000) 2 SCC 223, there was no pleading that the Rule providing for treatment of groups of railway box wagons as one unit for the purpose of levying demurrage was ultra vires the Railways Act, 1890. In absence of pleading to that effect, the Trial Court did not frame any issue on that question. The High Court on its own proceeded to consider the validity of the Rule and ultimately held that it was not in consonance with the relevant provisions of the Railways Act, 1890 and consequently held that it was ultra vires. The Supreme Court has held that this view is contrary to the settled law that a question which did not form part of the pleadings or in respect of which the parties were not at variance and which was not the subject matter of any issue could not be decided by the Court. According to the Supreme Court, the scope of the suit was limited and the pleadings comprising of the averments set out in the plaint and the defence put up by the appellant in the written statement did not relate to the validity of the Rule struck down by the High Court. The Supreme Court, therefore, did not sustain the judgment of the High Court on this question by holding that High Court had travelled beyond the pleadings in declaring the Rule to be ultra vires. Thus, it becomes evident that the decision of the Court must be confined to question raised Page 8 of 11 C/FA/2463/2014 ORDER by the parties and it cannot travel beyond the pleadings. Therefore, it would not be correct to say that the Tribunal has power or jurisdiction to award higher amount of compensation though not claimed by the claimant. We may passingly observe that in a subsequent decision rendered by another Division Bench of Bombay High Court in the case of Maharashtra State Road Transport Corporation v. Kamalabai and others, 1989(2) ACJ 750, a different note has been struck holding that even in absence of specific pleading, amount of compensation can be granted under different heads provided the award does not exceed the total compensation claimed. Thus, the subsequent Division Bench of Bombay High Court has taken the view which is consistent with the view of the Division Bench of this Court. We may mention that when the claimant feels that he is entitled to more compensation than what is claimed in the petition, it is always open to him/her to amend the claim petition and if the same is in consonance with the equity, justice and good conscience, there is no reason why the Claims Tribunal should not grant amendment. Before compensation more than claimed is awarded, the opposite parties should be put to notice, the requisite additional issue/issues should be raised and the parties should be permitted to adduce their evidence on the additional issues, but if no such opportunity is given, the procedure would obviously suffer from material irregularity affecting the decision. The Supreme Court in catena of decisions has ruled that an amendment for enhancing the amount of claim as and when prayed for should be liberally granted and that the Page 9 of 11 C/FA/2463/2014 ORDER Tribunal should not be rigid about granting of amendment. Thus, it is always open to the claimant to move an amendment application claiming higher compensation and if it is granted, opposite parties can be permitted to adduce evidence in support of their case, after which higher compensatioin can always be awarded to the claimant. Therefore, the view which we propose to take that the Tribunal has no power or jurisdiction to award higher amount of compensation though not claimed by the claimant, is not likely to cause any prejudice to the claimant at all.
In view of the above discussion, we answer the reference as under :
(1) Under section 166 read with section 168 of the Motor Vehicles Act, 1988 and section 110-B of the Motor Vehicles Act, 1939, it is not open to a Claims Tribunal to award the amount of compensation higher than the amount claimed by the claimant in the claim petition on the ground that the Tribunal has jurisdiction to award just compensation.
(2) The decision of Division Bench of Bombay High Court reported in 1987 ACJ 311 does not lay down the correct law when compared to the decision of the Division Bench of this Court reported in 19 GLR 492 and subsequent decision of the Bombay High Court reported in 1989(2) ACJ 750.
(3) If the claimant has not resorted to the remedy of of Page 10 of 11 C/FA/2463/2014 ORDER amending the claim petition even at any stage, the Tribunal on its own or the First Appellate Court on its own, would not be justified in enhancing the amount of compensation because according to the Tribunal or Court, the amount awardable is higher than the amount claimed by the claimant.
Office is directed to notify this appeal before the learned Single Judge taking-up such matters for further orders."
The matter requires consideration.
ADMIT.
The Registry is directed to place a copy of the judgment and award before the Hon'ble the Administrative Judge of the District where at present learned 6th Additional District Judge (Motor Accident Claims Tribunal) Ahmedabad (Rural) at Mirzapur is serving, for kind consideration and action, if any, required to be taken. If required, the matter be placed before the Hon'ble the Chief Justice for taking appropriate note and action in the matter.
Copy of the affidavit of the claimant is taken on record.
(RAVI R.TRIPATHI, J.) ila Page 11 of 11