Motor Accidents Claims; Sheela O.K. Vs. New India Insurance Company [Kerala High Court, 19-10-2016]

Contents

Motor Vehicles Act, 1989 – Section 149 (2) – Distinction between a case where the insurer is merely issued with a notice under Section 149(2) of the Act; and a case where the insurer has been impleaded as a respondent in the claim petition – When an insurer is impleaded as a party-respondent to the claim petition, as contrasted from merely being a noticee under Section 149(2) of the Act, its rights are significantly different. If the insurer is only a noticee, it can only raise such of those grounds as are permissible in law under Section 149(2). But if he is a party-respondent, it can raise, not only those grounds which are available under Section 149(2), but also all other grounds that are available to a person against whom a claim is made. If the insurer is already a respondent, having been impleaded as a party-respondent, it need not seek the permission of the Tribunal under Section 170 of the Act to raise grounds other than those mentioned in Section 149(2) of the Act.

# Insurer

IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.

R.P.No.614 of 2016 in M.A.C.A.No.850 of 2016

DATED THIS THE 19th DAY OF OCTOBER, 2016

AGAINST THE JUDGMENT IN MACA 850/2016 of HIGH COURT OF KERALA DATED 31.3.2016

REVIEW PETITIONERS/RESPONDENTS 1 TO 4

SHEELA O.K, IRUPURAM AND 3 OTHERS

BY ADV. SRI.T.K.KOSHY

RESPONDENT/APPELLANT

THE NEW INDIA INSURANCE COMPANY LIMITED. DIVISIONAL OFFICE, ALUVA, REPRESENTED BY THE ADMINISTRATIVE OFFICER, REGIONAL OFFICE, KOCHI 683 101.

BY SRI.RAJAN P.KALLIYATH

ORDER

ANIL K. NARENDRAN, J.

The petitioners in this Review Petition are the respondents in M.A.C.A.No.850/2016, an appeal filed under

# Section 173 of the Motor Vehicles Act, 1989

by the New India Assurance Company Ltd., the respondent herein, challenging the award passed by the Motor Accidents Claims Tribunal, Perumbavoor dated 31.12.2015 in O.P.(MV)No.1625/2012, a claim petition filed by the respondents herein, under Section 166 of the Motor Vehicles Act, claiming a total compensation of ₹14,80,000/- for the death of one Ashokan (the husband of the 1 st claimant, father of the 2 nd and 3 rd claimants and son of the 4 th claimant), who died in a motor accident occurred on 24.8.2012 at 11.00 AM, involving a lorry bearing registration No.KL-07/G-3967 owned and driven by the 1 st and 2 nd respondents before the Tribunal and insured with the respondent herein.

2. Going by the averments in the Claim Petition, on the date of accident, the deceased who was engaged in the workshop owned by him on the side of MC road at Mannoor, was hit by a lorry bearing registration No.KL-07/G-3967, owned and driven by the 1 st and 2 nd respondents before the Tribunal and insured with the respondent herein. Due to rash and negligent driving of the lorry, it ran into the workshop, resulting in the death of the deceased, who sustained fatal injuries. The petitioners herein filed claim petition before the Tribunal claiming a total compensation of ₹14,80,000/-.

3. Before the Tribunal Exts.A1 to A7 were marked on the side of the claimants and the widow was examined as PW1. The respondents before the Tribunal have not chosen to adduce any oral or documentary evidence.

4. Based on the materials on record, the Tribunal came to the conclusion that the accident occurred was due to the rash and negligent driving of the lorry by its driver. Since the vehicle was covered by a valid insurance policy, the respondent herein was held liable to indemnify the owner of the lorry, the insured. Under various heads, the Tribunal awarded a total compensation of ₹14,13,600/- and directed the insurer to deposit the said amount together with interest at the rate of 9% per annum from the date of petition till realisation, with proportionate cost.

5. Challenging the quantum of compensation awarded by the Tribunal, the insurer filed M.A.C.A.No.850/2016 before this Court contending that, the compensation awarded by the Tribunal is highly excessive and unreasonable; 30% addition towards future prospectus while fixing the multiplicand is erroneous, since the deceased was allegedly running a workshop with no regular income; the compensation awarded under the head loss of love and affection at ₹3,50,000/- is highly excessive, which has to be scaled down to ₹1,00,000/-; and the cost granted by the Tribunal is inappropriate and illegal.

6. On 31.3.2016, when M.A.C.A.No.850/2016 came up for admission, we heard arguments of the learned counsel for the insurer, the appellant in that appeal, and also the learned counsel who filed Caveat No.408/2016 on behalf of the claimants, who are the petitioners in this Review Petition, and the appeal was disposed of scaling down the compensation awarded by the Tribunal under the head loss of love and affection from ₹3,50,000/- to ₹1,00,000/- payable to the minor children and the mother of the deceased. The compensation awarded by the Tribunal under the head pain and suffering was enhanced from ₹10,000/- to ₹15,000/-. Accordingly, the total compensation payable was re-fixed at ₹11,73,600/- and the insurer was directed to deposit the said amount before the Tribunal, together with interest at the rate of 9% per annum from the date of petition, within a period of one month from the date of receipt of a certified copy of the judgment.

7. Now the claimants have filed this Review Petition contending that there is error apparent on the face of record, warranting review of the judgment in M.A.C.A.No.850/2016.

8. The grounds raised in the Review Petition are as follows; the disposal of the appeal at the admission stage was improper, since the only prayer sought for in the Caveat Petition filed under Section 148A of the Code of Civil Procedure, 1908 was not to pass any interim orders in the appeal without hearing the claimants; the disposal of the appeal on merits has caused much prejudice to the claimants, as they were aggrieved by the award under the head loss of dependency, loss of estate, etc. and nonawarding of any amount under the heads loss of expectation of life, damage to workshop, etc., and they wanted to file appeal seeking enhancement of compensation, by producing additional evidence such as original identity card issued by the Construction Workers Welfare Board, licence for the workshop, etc.; the reduction of ₹2,50,000/- from ₹3,50,000/- awarded by the Tribunal towards compensation under the head loss of love and affection was highly improper and even contrary to the ruling of the Apex Court in

# Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166

a binding precedent under Article 141 of the Constitution of India; the appeal filed by the insurer was not at all maintainable, since the insurer had not obtained any sanction under Section 170 of the Motor Vehicles Act, 1988 to contest the matter on merits, i.e., on grounds other than those available under Section 149(2) of the said Act; the Tribunal awarded proportionate cost to the claimants, which was not set aside in the appeal, however, in the operative portion of the judgment the insurer has been directed to deposit the compensation amount together with interest alone.

9. We heard the learned counsel for the petitioners/ claimants and also the learned Standing Counsel for the respondent/insurer.

10. In the context of the Power of review under

# Order XLVII Rule 1 of the Code of Civil Procedure, 1908

the Apex Court held in

# Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715

that there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can be corrected by exercise of the review jurisdiction. Later, in

# Lily Thomas v. Union of India, (2000) 6 SCC 224

the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, most of the grounds raised in this Review Petition are beyond scope of the power of review envisaged under Order XLVII Rule 1 of the Code.

11. Sub-section (1) of Section 148A of the Code of Civil Procedure enables any person claiming a right to appear before the Court, on the hearing of an application expected to be made in a suit or proceedings instituted, or about to be instituted, to lodge a caveat in respect thereof. In terms of the provisions under Section 148A of the Code, a caveator has a right to be heard before passing an interim order. In the case on hand, in the appeal filed by the insurer, the quantum of compensation awarded by the Tribunal under the head loss of love and affection was mainly under challenge. The insurer contended that, the compensation awarded under the head loss of love and affection at ₹3,50,000/- is highly excessive, which has to be scaled down to ₹1,00,000/-. The insurer has also contended that, since the deceased was allegedly running a workshop with no regular income, 30% addition towards future prospects while fixing the multiplicand is erroneous. On 31.3.2016, when the appeal came up for admission, arguments were heard on the merits of the appeal. After hearing the learned counsel for the appellant insurer and also the learned counsel for the claimants, who filed Caveat No.408 of 2016, the appeal was disposed of scaling down the compensation awarded by the Tribunal under the head loss of love and affection from ₹3,50,000/- to ₹1,00,000/-, following the law laid down by a Three-Judge Bench of the Apex Court in

# Rajesh v. Rajbir Singh, (2013) 9 SCC 54

and the compensation awarded under the head pain and suffering was enhancing from ₹10,000/- to ₹15,000/-.

12. As noted in Para.13 of the impugned judgment, regarding the compensation awarded by the Tribunal under the head loss of dependency, the learned counsel for the insurer contended that, in the absence of any reliable evidence regarding the avocation and income of the deceased, the Tribunal went wrong in adopting ₹7,800/- as the multiplicand for assessing dependency compensation. Per contra, the learned counsel for the claimants contended that the Tribunal ought to have accepted the case put forward in the claim petition that, at the time of accident, the deceased was earning a monthly income of ₹8,000/-.

13. As noted in Para.14 of the impugned judgment, in the claim petition, the occupation of the deceased was mentioned as workshop worker (Blacksmith); his monthly income as ₹8,000/-; and the extent of dependency as ₹6,000/- per month. Though not marked, a copy of the identity card issued to the deceased by the Kerala Building and other Construction Workers Welfare Board was produced before the Tribunal to show that he was a Blacksmith having registration with the Welfare Board since 2004. Other than the oral testimony of the widow as PW1, there was nothing on record to show that the deceased was running the workshop of his own. No documents, like the licence issued by the local authority to run the workshop or any other documents to show that the deceased was running the workshop of his own, were produced before the Tribunal. Therefore, it was after considering the rival contentions, this Court held that the fixation of monthly income by the Tribunal at ₹6,000/- and the addition of 30% as future prospects are perfectly legal, which warrants no interference in the appeal. It is pertinent to note that, the petitioners/claimants have not chosen to produce any documents along with this Review Petition to show that at the time of accident the deceased was running the workshop of his own and also the damage alleged to have been caused to the workshop. Therefore, we find no merit in the contention that, the disposal of the appeal on merits at the admission stage has caused much prejudice to the petitioners/claimants.

14. It is pertinent to note that, in

# State of Haryana v. Jasbir Kaur, (2003) 7 SCC 484

the Apex Court held that, the Tribunal under

# Section 168 of the Motor Vehicles Act, 1988

is required to make an award determining the amount of compensation which is to be in the real sense ‘damages’ which in turn appears to it to be ‘just and reasonable’. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be ‘just’ and it cannot be a bonanza; not a source of profit; but the same should not be a pittance.

15. In Jasbir Kaur‘s case (supra), after referring to the judgment in

# Helen C. Rebello v. Maharashtra State Road Transport Corporation, (1999) 1 SCC 90

the Apex Court held further that, the Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be ‘just’ compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of ‘just’ compensation which is the pivotal consideration. Though by use of the expression ‘which appears to it to be just’ a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression ‘just’ denotes equitability, fairness, reasonableness, and non – arbitrary. If it is not so, it cannot be just.

16. Though the compensation awarded by the Tribunal under the head love and affection was scaled down to ₹1,00,000/-, we noticed that, the Tribunal awarded only a meagre sum of ₹5,000/- as compensation towards pain and suffering. Considering the nature of the injuries sustained by the deceased, including crush injury at pelvis region and multiple fractures on the lower limb, as disclosed in the claim petition and supported by the materials on record, the compensation under the head pain and suffering was re-fixed as ₹15,000/-.

17. When the quantum of compensation awarded by the Tribunal alone is under challenge in an appeal filed by the insurer under Section 173 of the Motor Vehicles Act, depending upon the nature of contentions raised, the appeal can be disposed of on merits at the admission stage itself after hearing the learned counsel for the claimants who filed caveat. Having argued the appeal on merits, the learned counsel for the claimants cannot now contend that, since the only prayer sought for in the Caveat Petition filed under Section 148A of the Code was not to pass any interim order without hearing the claimants, the disposal of the appeal at the admission stage was improper. We find absolutely no merits in the said contention raised by the petitioners/ claimants.

18. The learned counsel for the petitioners/claimants then contended that, the disposal of the appeal on merits has caused much prejudice to the claimants, as they were aggrieved by the compensation awarded under the head loss of estate and nonawarding of any amount under the head loss of expectation of life. In the review petition, the claimants have no case that such a contention was ever raised before this Court during the course of hearing of that appeal. Apart from that, as discernible from the award, the Tribunal awarded ₹15,000/- under the head loss of estate, as against ₹10,000/- claimed by the claimants. Further, in the claim petition no compensation was claimed under the head loss of expectation of life.

19. In

# Jyni v. Raphel P.T., 2016 (2) KHC 870

after referring to the judgments of the Apex Court in

# Sarla Verma’s case, (2009) 6 SCC 1

# Shyamwati Sharma’s case, (2010) 12 SCC 378

etc., we have held that the conventional amount of ₹15,000/- awarded under the head loss of estate represents just and reasonable compensation. In Jyni‘s case we have also held that, in

# Yerramma’s case, (2014) 15 SCC 65

# Kalpanaraj’s case, (2015) 2 SCC 764

# Kala Devi’s case, (2015) 2 SCC 771

and

# Neeta’s case, (2015) 3 SCC 590

the Apex Court has not laid down any absolute proposition of law that the legal heirs of the deceased are entitled for ₹1,00,000/- towards loss of estate. As discernible from the said judgments, the Apex Court awarded ₹1,00,000/- to the claimants in those cases towards loss of estate, invoking its powers under Article 142 of the Constitution of India, for doing complete justice in the matter pending before it, which does not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. In that view of the matter, ₹15,000/- awarded by the Tribunal in the instant case under the head loss of estate represents just and reasonable compensation.

20. In Jyni‘s case (supra) we have held further that, though a claim for loss of expectation of life is maintainable on behalf of the estate of the deceased, the award of sums under this head should be for conventional sums. The uniform practice followed by the Apex Court in

# Gobald Motor Service Ltd.’s case, AIR 1962 SC 1

# Trilok Chandra’s case, (1996) 4 SCC 362

etc. was to award only a conventional amount of ₹5,000/- to 10,000/- under this head. However, once dependency compensation is awarded by applying the multiplier applicable to the age group of the deceased, duly taking into consideration the future prospects of the deceased, by applying the dictum laid down by the Apex Court in Rajesh‘s case (supra), and a conventional amount is also awarded under the head loss of estate, the need to award separate compensation under the head loss of expectation of life will disappear and in appropriate cases the Tribunal need award only a token or nominal amount under this head. In that view of the matter, the Tribunal cannot be found fault with in not awarding any amount in the instant case, under the head loss of expectation of life.

21. The learned counsel for the petitioners/claimants then contended that, the scaling down of the compensation awarded by the Tribunal under the head loss of love and affection was highly improper and even contrary to the ruling of the Apex Court in Jiju Kuruvila‘s case (supra), a binding precedent under Article 141 of the Constitution of India.

22. In Rajesh‘s case (supra) a Three-Judge Bench of the Apex Court revisited the practice of awarding compensation under the conventional heads of loss of consortium, loss of love, care and guidance to children and funeral expenses. The Apex Court noted that the sum of ₹2,500/- to ₹10,000/- awarded as compensation under the above conventional heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. Therefore, the Apex Court held that it would be only just and reasonable that the courts award at least ₹1,00,000/- for loss of consortium, a further sum of ₹1,00,000/- towards loss of love and affection and, in the absence of any evidence to the contrary for higher expenses, at least a sum of ₹25,000/- towards funeral expenses. Regarding compensation under the head loss of consortium, the ThreeJudge Bench held as follows: “In legal parlance, ‘consortium’ is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the Courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, it would only be just and reasonable that the Courts award at least Rs.1,00,000/- for loss of consortium.”

23. The compensation awarded under the head loss of consortium, therefore, is to compensate the loss of spouse’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Once the spouse is adequately compensated under the head loss of consortium, no further compensation is payable to him/her under the head loss of love and affection, which is a conventional head available to the children/parents/siblings of the deceased. Therefore, it was held in the impugned judgment that, after awarding a compensation of ₹1,00,000/- under the head loss of consortium, the Tribunal went wrong in awarding further compensation under the head loss of love and affection to the widow, the 1 st claimant before the Tribunal.

24. In

# Jyni v. Raphel P.T., 2016 (2) KHC 870

after referring to the decision of the Apex Court in Rajesh‘s case (supra) and also the subsequent decisions we have held that, in view of the law laid down by the Three-Judge Bench of the Apex Court in Rajesh‘s case (supra) the amount of compensation that could be awarded towards loss of love and affection can only be ₹1,00,000/-. In

# Yerramma v. G. Krishnamurthy, (2014) 15 SCC 65

# Anjani Singh v. Salauddin, (2014) 15 SCC 582

# Kalpanaraj v. T.N. State Transport Corpn., (2015) 2 SCC 764

# Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar, (2015) 4 SCC 237

and

# Shashikala v. Gangalakshmamma, (2015) 9 SCC 150

the uniform practice followed by the Apex Court was to award ₹1,00,000/- towards compensation under the head loss of love and affection, and not ₹1,00,000/- to each children or ₹50,000/- to each parents.

25. In

# Indian Bank v. ABS Marine Products (P) Ltd., (2006) 5 SCC 72

one of the contentions raised was that, any direction issued by the Apex Court in exercise of power under Article 142 of the Constitution of India to do proper justice and the reasons, if any, given for exercising such power, cannot be considered as law laid down by that Court under Article 141. It was also pointed out that, other Courts do not have the power similar to that conferred on the Apex Court under Article 142 and any attempt to follow the exercise of such power will lead to incongruous and disastrous results. The Apex Court left open that question, observing as follows;

“Though there appears to be some merit in the first respondent’s submission, we do not propose to examine that aspect.”

Though the said question was left open, the Apex Court observed as follows in Para. 26 of the judgment;

“26. ……. Many a time, after declaring the law, this Court in the operative part of the judgment, gives some directions which may either relax the application of law or exempt the case on hand from the rigour of the law in view of the peculiar facts or in view of the uncertainty of law till then, to do complete justice. While doing so, normally it is not stated that such direction/order is in exercise of power under Article 142. It is not uncommon to find that Courts have followed not the law declared, but the exemption/relaxation made while moulding the relief in exercise of power under Article 142. When the High Courts repeatedly follow a direction issued under Article 142, by treating it as the law declared by this Court, incongruously the exemption/relaxation granted under Article 142 becomes the law, though at variance with the law declared by this Court. The Courts should therefore be careful to ascertain and follow the ratio decidendi, and not the relief given on the special facts, exercising power under Article 142. …..”

26. In

# State of Punjab v. Rafiq Masih, (2014) 8 SCC 883

a Three-Judge Bench of the Apex Court affirmed the view taken in ABS Marine Products‘ case (supra) holding that, the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are directions issued to do proper justice and exercise of such power, which cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Apex Court held further that, the directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. Paras. 11 to 13 of the judgment read thus;

“11. Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vests a discretion in the Supreme Court to settle the law clearly and make the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution.

12. Article 142 of the Constitution is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the Statute. It is a power that gives preference to equity over law. It is a justice oriented approach as against the strict rigors of the law. The directions issued by the Court can normally be categorised into one, in the nature of moulding of relief and the other, as the declaration of law. ‘Declaration of Law’ as contemplated in Article 141 of the Constitution: is the speech express or necessarily implied by the Highest Court of the land. This Court in the case of

# Indian Bank v. ABS Marine Products (P) Ltd., (2006) 5 SCC 72

# Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381

and in

# State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667

has expounded the principle and extolled the power of Article 142 of the Constitution of India to new heights by laying down that the directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution of India. They are direction issued to do proper justice and exercise of such power, cannot be considered as law laid down by the Supreme Court under Article 141 of the Constitution of India. The Court has compartmentalised and differentiated the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution as against the law declared. The directions of the Court under Article 142 of the Constitution, while moulding the relief, that relax the application of law or exempt the case in hand from the rigour of the law in view of the peculiar facts and circumstances do not comprise the ratio decidendi and therefore lose its basic premise of making it a binding precedent. This Court on the qui vive has expanded the horizons of Article 142 of the Constitution by keeping it outside the purview of Article 141 of the Constitution and by declaring it a direction of the Court that changes its complexion with the peculiarity in the facts and circumstances of the case.

13. Therefore, in our opinion, the decisions of the Court based on different scales of Article 136 and Article 142 of the Constitution of India cannot be best weighed on the same grounds of reasoning and thus in view of the aforesaid discussion, there is no conflict in the views expressed in the first two judgments and the latter judgment.”

27. In

# Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166

a Two-Judge Bench of the Apex Court awarded ₹1,00,000/- each to two minor children of the deceased aged 14 and 11 years respectively, towards compensation for love and affection. That was a case in which the accident took place on 16.4.1990. At the time of accident, the deceased was aged 45 years and was working as Manager in Freeman Management Corporation, New York, USA, for more than 9 years and was receiving a monthly salary of 2500 US Dollars equivalent to ₹43,100/- and could have continued in service upto the age of 65 years as per service conditions, i.e., for another 20 years. He was provided with quarter by the employer and was residing along with his wife. Ext.A6 certificate dated 23.4.1990 issued by the employer of deceased showed that his annual salary was 30,000 US Dollars. The deceased was in their employment for 9 years and had an excellent standing. His employment was of a permanent nature and he would have continued in service upto the age of 65 years. Ext.A6 certificate was also attested by the Notary Public and counter signed by the Consulate General of India, New York, as per Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. On the basis of the annual income reflected in Ext.A6 and the exchange rate of ₹17.30 per US Dollar as applicable in April, 1990 (Ext.A7), the annual income of the deceased at the time of death, if converted in Indian currency, was reckoned as ₹5,19,000/-. The family of the deceased consisted of 5 persons, i.e., the deceased himself, wife, two minor children and his mother. After deducting 1/4th towards personal and living expenses of the deceased and applying the multiplier of 14 applicable to the age group of the deceased, the compensation for loss of dependency was re-fixed as ₹54,49,500/-. Besides the aforesaid amount, the two minor children were awarded ₹1,00,000/- each towards loss of love and affection and the wife was awarded a sum of ₹1,00,000/- towards loss of consortium.

28. In Jyni‘s case (supra) we have held that, in Jiju Kuruvila‘s case the Apex Court has not laid down any absolute proposition of law that the minor children of the deceased are entitled for ₹1,00,000/- each towards loss of love and affection. In the said judgment, the Two-Judge Bench has also made reference to the judgment of the Three-Judge Bench in Rajesh‘s case (supra). As discernible from the judgment in Jiju Kuruvila‘s case, the Apex Court awarded ₹1,00,000/- each to two minor children towards loss of love and affection, invoking its powers under Article 142 of the Constitution of India, for doing complete justice in the matter pending before it. It is only the Apex Court, which, in exercise of its extraordinary powers under Article 142 of the Constitution, can pass such orders to do complete justice to the parties. The said power is not vested with any other Court in the country. In view of the law laid down by the Apex Court in ABS Marine Products‘ case (supra) and in Rafiq Masih‘s case (supra), the said direction issued by the Apex Court under Article 142 of the Constitution, while moulding the relief, does not comprise the ratio decidendi and therefore loses its basic premise of making it a binding precedent. As held by us in Jyni‘s case (supra), in

# Jiju Kuruvila’s case, (2013) 9 SCC 166

# Kala Devi v. Bhagwan Das Chauhan, (2015) 2 SCC 771

and

# Neeta v. Maharashtra State Road Transport Corporation, (2015) 3 SCC 590

the Apex Court awarded ₹1,00,000/- each to minor children/₹50,000/- each to the parents of the deceased towards loss of love and affection, invoking its powers under Article 142 of the Constitution of India, for doing complete justice in the matter pending before it, which directions do not comprise the ratio decidendi. Following the ratio laid down in Jyni‘s case (supra) we have held in the impugned judgment that, the reasonable compensation that could be awarded by the Tribunal towards loss of love and affection to respondents 2 to 4, namely, the minor children and the aged mother of the deceased is only ₹1,00,000/-. Accordingly, ₹3,50,000/- awarded by the Tribunal towards compensation for love and affection was scaled down to ₹1,00,000/- (payable to respondents 2 to 4). Such an exercise undertaken by this Court is neither improper, nor contrary to any binding precedent under Article 141 of the Constitution of India.

29. The learned counsel for the petitioners/claimants then contended that, the appeal filed by the insurer was not at all maintainable, since the insurer had not obtained any sanction under Section 170 of the Motor Vehicles Act, 1988 to contest the matter on merits, i.e., on grounds other than those available under Section 149(2) of the said Act. To buttress the said contention, the learned counsel relied on the decisions of the Apex Court in

# National Insurance Co. Ltd. v. Nicolletta Rohtagi, (2002) 7 SCC 456

# United India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509

and

# Josphine James v. United India Insurance Co., (2013) 16 SCC 711

30. It is pertinent to note that, in the review petition the claimants have no case that the maintainability of the appeal filed by the insurer was ever raised before this Court during the course of hearing of that appeal. Having failed to raise the question of maintainability at appropriate time, i.e., during the course of hearing of the appeal, the claimants cannot be permitted to raise such a contention for the first time in this Review Petition. Apart from that, it is not in dispute that, in the claim petition filed before the Tribunal as O.P.(MV)No.1625/2012, the claimants have voluntarily arrayed the insurer as a party-respondent, i.e., as the 3 rd respondent.

31. In Nicolletta Rohtagi‘s case (supra) a Three-Judge Bench of the Apex Court held that, while enacting Chapter VIII of the Motor Vehicles Act, 1939 or Chapter XI of the Motor Vehicles Act, 1988, which deals with insurance of motor vehicles against third-party risks, the intention of the legislature was to protect third-party rights and not the insurers even though they may be nationalised companies. In the said case, the question raised before the Apex Court was as follows;

“Where an insured has not preferred an appeal under Section 173 of the Motor Vehicles Act, 1988 against an award of the Motor Accidents Claims Tribunal, is it open to the insurer to prefer an appeal against such award questioning the quantum of the compensation, as well as finding as regards the negligence of the offending vehicle?”

32. In Nicolletta Rohtagi‘s case (supra), the Apex Court held that, unless an order is passed by the Tribunal permitting the insurer to avail the grounds available to an insured or any other person against whom a claim has been made on being satisfied of the two conditions specified in Section 170 of the Motor Vehicles Act, it is not permissible to the insurer to contest the claim on the grounds which are available to the insured or to a person against whom a claim has been made. Thus, where conditions precedent embodied in Section 170 of the Act are satisfied and the award is adverse to the interest of the insurer, the insurer has a right to file an appeal challenging the quantum of compensation or negligence or contributory negligence of the offending vehicle even if the insured has not filed any appeal against the quantum of compensation. The Apex Court held further that, the right of appeal is not an inherent right or common law right, but it is a statutory right. If the law provides that an appeal can be filed on limited grounds, the grounds of challenge cannot be enlarged on the premise that the insured or the persons against whom a claim has been made has not filed any appeal. However, in a situation where there is collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not implead the insurer to contest the claim, it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits, it is open to the insurer to file an appeal against an award on merits, if aggrieved.

33. In Shila Datta‘s case (supra) the questions raised before another Three-Judge Bench of the Apex Court were as follows;

“(i) Whether the insurer can contest a motor accident claim on merits, in particular, in regard to the quantum, in addition to the grounds mentioned in Section 149(2) of the Motor Vehicles Act, 1988 for avoiding liability under the policy of insurance ?

(ii) Whether an insurer can prefer an appeal under Section 173 of the Motor Vehicles Act, 1988 against an award of the Motor Accident Claims Tribunal, questioning the quantum of compensation awarded ?”

34. Before the Three-Judge Bench, the Insurance Companies have urged the following points for consideration;

“(i) There is a significant difference between insurer as a ‘noticee’ (a person to whom a notice is served as required by Section 149(2) of the Act) in a claim proceeding and an insurer as a party-respondent in a claim proceeding. Where an insurer is impleaded by the claimants as a party, it can contest the claim on all grounds, as there are no restrictions or limitations in regard to contest. But where an insurer is not impleaded by the claimant as a party, but is only issued a statutory notice under Section 149(2) of the Act by the Tribunal requiring it to meet the liability, it is entitled to be made a party to deny the liability on the grounds mentioned in Section 149(2).

(ii) When the owner of the vehicle (the insured) and the insurer are aggrieved by the award of the Tribunal, and jointly file an appeal challenging the quantum, the mere presence of the insurer as a co-appellant will not render the appeal, as not maintainable. When insurer is the person to pay the compensation, any interpretation to say that it is not a ‘person aggrieved’ by the quantum of compensation determined, would be absurd and anomalous.

(iii) When an insurer is aggrieved by the quantum of compensation, it is not seeking to avoid or exclude its liability, but merely wants determination of the extent of its liability. The restrictions imposed upon the insurers to defend the action by the claimant or file an appeal against the judgment and award of the Tribunal will apply, only if it wants to file an appeal to avoid liability and not when it admits its liability to pay the amount awarded, but only seeks proper determination of the quantum of compensation to be paid.

(iv) Appeal is a continuation of the original claim proceedings. Section 170 provides that if the person against whom the claim is made, fails to contest the claim, the insurer may be permitted to resist the claim on merits. If and when an award is made by the Tribunal which is excessive, arbitrary or erroneous, the owner of the vehicle has to challenge the same by filing an appeal before the High Court. If the insured (owner of the vehicle) fails to challenge an award even when it is erroneous or arbitrary or fanciful, it can be considered that the insured has failed to contest the same and consequently under Section 170, the High Court or the Tribunal may permit the insurer to file an appeal and contest the award on merits.

(v) The Motor Vehicles Act, 1988 creates a liability upon the insurer to satisfy the judgments and awards against the insured. The Act expressly restricts the right of the insurer to avoid the liability as insurer, only to the grounds specified in Section 149(2) of the Act. Though it is impermissible to add to the grounds mentioned in the statute, the insurer has a right, if it has reserved such a right in the policy, to defend the action in the name of the insured. If it opts to step into the shoes of the insured, it can defend the action in the name of the insured and all defences open to the insured will be available to it and can be urged by it. Its position contesting a claim under Section 149(2) of the Act is distinct and different, when it is contesting the claim in the name of or on behalf of the insured owner of the vehicle. In cases, where it is authorised by the policy to defend any claim in the name of the insured, and the insurer does so, it can not be restricted to the grounds mentioned in Section 149(2) of the Act, as the defence is on behalf of the owner of the vehicle.”

35. On an in-depth analysis of the judgment in Nicolletta Rohtagi‘s case (supra), the Three-Judge Bench in Shila Datta‘s case (supra) observed that, points (i) and (ii), namely, the position in cases where the claimants implead the insurer as a respondent in the claim petition; and the maintainability of a joint appeal by the owner of the vehicle (insured) and the insurer, did not arise for consideration of the Three-Judge Bench in Nicolletta Rohtagi’s case, nor were they considered therein. Therefore, in Shila Datta’s case the Three-Judge Bench resolved points (i) and (ii) and referred only points (iii) to (v) to a Larger Bench.

36. On point (i), the Three-Judge Bench held that, when an insurer is impleaded as a party-respondent to the claim petition, as contrasted from merely being a noticee under Section 149(2) of the Act, its rights are significantly different. If the insurer is only a noticee, it can only raise such of those grounds as are permissible in law under Section 149(2). But if it is a party-respondent, it can raise, not only those grounds which are available under Section 149(2), but also all other grounds that are available to a person against whom a claim is made. It, therefore, follows that if the claimants implead the insurer as a party-respondent, for whatever reason, then as such respondent, the insurer will be entitled to urge all contentions and grounds which may be available to it. (@ Para.14 of SCC). The ThreeJudge Bench held further that, the Motor Vehicles Act does not require the claimants to implead the insurer as a partyrespondent. But if the claimants choose to implead the insurer as a party, not being a noticee under Section 149(2), the insurer can urge all grounds and not necessarily the limited grounds mentioned in Section 149(2) of the Act. If the insurer is already a respondent, having been impleaded as a party-respondent, it need not seek the permission of the Tribunal under Section 170 of the Act to raise grounds other than those mentioned in Section 149(2) of the Act. (@ Para.15 of SCC).

37. On point (ii), namely, the maintainability of a joint appeal by the owner of the vehicle (insured) and the insurer, the Three-Judge Bench held that, when an award is made by the Tribunal, the owner of the vehicle (insured), being a person aggrieved, can file an appeal challenging his liability on any ground, or challenge the quantum of compensation. An appeal which is ‘maintainable’ when the owner of the vehicle files it, does not become ‘not maintainable’ merely on account of the insurer being a co-appellant with the owner. When the insurer becomes a co-appellant, the owner of the vehicle does not cease to be a person aggrieved. (@ Para.21 of SCC)

38. In Shila Datta‘s case (supra) the Three-Judge Bench answered the points arising from the reference at Para.36 of the judgment, which reads thus;

“36. We accordingly answer the points arising from the reference as under:

(i) Points (i) and (ii) are held in favour of the Insurers. The matters covered by points (i) and (ii) are to be placed before the respective benches for consideration accordingly.

(ii) Points (iii) to (v) which may come in conflict with Nicolletta Rohtagi (2002 (7) SCC 456), are referred to a larger Bench. We accordingly direct these matters (that is, cases where the insurer alone was the appellant before the High Court and where the insurer was only a noticee under Section 149(2) and not an impleaded respondent in the claim petition), to be placed before the Hon’ble Chief Justice for constituting a larger bench to consider points (iii), (iv) and (v) raised by the insurers.”

39. Relying on the judgment of a Two-Judge Bench of the Apex Court in

# Josphine James v. United India Insurance Co., (2013) 16 SCC 711

the learned counsel for the petitioners/claimants contended that, in Shila Datta‘s case (supra) the Three-Judge Bench of the Apex Court has only expressed its reservations against the correctness of the legal position in Nicolletta Rohtagi‘s case (supra) and the matter has been referred to a Larger Bench. Therefore, the ratio in Nicolletta Rohtagi’s case has not been overruled as yet and it holds the field.

40. We notice that, in Josphine James‘ case (supra) a TwoJudge Bench of the Apex Court set aside the judgment of the High Court of Delhi in reducing the quantum of compensation under the head of loss of dependency, holding that, it is not permissible for the insurer to contest the case on merits, in the absence of the permission obtained from the Tribunal to avail the defence of the insured, as held by the Three-Judge Bench in Nicolletta Rohtagi‘s case, though the correctness of the said decision is referred to Larger Bench in Shila Datta‘s case. Therefore, in the absence of permission under Section 170(b) of the Motor Vehicles Act, 1988, the insurer had only limited defence to contest in the proceedings as provided under Section 149(2) of the said Act.

41. As we have already noticed, in Shila Datta‘s case (supra) the Three-Judge Bench resolved points (i) and (ii) in favour of the insurers, since those two issues did not arise for consideration of the Three-Judge Bench in Nicolletta Rohtagi‘s case, nor where they considered therein, and referred to a Larger Bench only points (iii) and (iv) which may come in conflict with Nicolletta Rohtagi‘s case. In Shila Datta‘s case the Three-Judge Bench has drawn a distinction between a case where the insurer is merely issued with a notice under Section 149(2) of the Act; and a case where the insurer has been impleaded as a respondent in the claim petition. It was accordingly held that, when an insurer is impleaded as a party-respondent to the claim petition, as contrasted from merely being a noticee under Section 149(2) of the Act, its rights are significantly different. If the insurer is only a noticee, it can only raise such of those grounds as are permissible in law under Section 149(2). But if he is a party-respondent, it can raise, not only those grounds which are available under Section 149(2), but also all other grounds that are available to a person against whom a claim is made. The Three-Judge Bench has also held that, if the insurer is already a respondent, having been impleaded as a party-respondent, it need not seek the permission of the Tribunal under Section 170 of the Act to raise grounds other than those mentioned in Section 149(2) of the Act. In view of the law declared as above by the Three-Judge Bench in Shila Datta‘s case, we find absolutely no merits in the contention raised by the petitioners/claimants against the maintainability of the appeal filed by the insurer.

42. Therefore, the Review Petition fails on the aforesaid counts.

43. However, we notice that, in the award the Tribunal awarded proportionate cost to the claimants, which was not set aside by this Court in the appeal filed by the insurer. But, due to an accidental slip, in the operative portion of the judgment in M.A.C.A.No.850/2016 the insurer has been directed to deposit the compensation amount together with interest alone. Therefore, the judgment in M.A.C.A.No.850/2016 to that extent is liable to be reviewed. Accordingly, it is ordered that, the respondent/insurer shall deposit before the Tribunal the compensation amount re-fixed in M.A.C.A.No.850/2016 together with interest and proportionate costs. The respondent/insurer shall deposit the deficit amount before the Tribunal, within one month from the date of receipt of a certified copy of this order. On such deposit being made, the Tribunal shall disburse the same to the claimants forthwith.

 In the result, this Review Petition stands allowed in part to the extent indicated as above. No order as to costs.

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