JUDGMENT
G. Sivarajan, J.
1. Claimants are the appellants. The appeal is filed against the award of the Motor Accidents Claims Tribunal, Ernakulam in O.P. (MV) No. 1993 of 1994. They claimed a total compensation of Rs. 2,60,000 under various heads for the death of the husband of the claimant No. 1 and the father of claimant Nos. 2 to 5 in a motor accident. The Claims Tribunal awarded a total sum of Rs. 1,89,000. Not being satisfied with the award claimants have filed this appeal.
2. Learned counsel appearing for the appellants submitted that the annual income fixed and the multiplier applied by the Tribunal are very low. He submitted that, at any rate, the Tribunal was not justified in limiting the compensation for the loss of dependency at Rs. 1,50,000 when it was found that the appellants are entitled to an amount of Rs. 1,72,800 under that head. He further submitted that the reason stated by the Tribunal in this regard is contrary to the decisions of the Supreme Court and of the High Courts. Though this appeal was not admitted, in view of the nature of the contentions raised, we have also heard Mr. Mathews Jacob, learned counsel appearing for the insurance company.
3. On 27.4.1994, while Aboobaker, the husband of the claimant No. 1 was riding a motor cycle bearing registration No. KL 7 B 2546 with one Iymukunju as pillion rider on the Kakkanadu-Kumarapuram Road from east to west, a lorry bearing registration No. KRK 818 driven by the respondent No. 1 came from the opposite direction and dashed against the motor cycle. The husband of the claimant No. 1 and the pillion rider sustained severe injuries and later succumbed to death. Deceased Aboobaker was aged 47 at the time of accident. The claimant No. 1 was aged 40 years. The other claimants were aged 23, 21, 20 and 18 years respectively. They claimed a total sum of Rs. 2,60,000 under various heads such as for pain and suffering, loss of love and affection, loss of dependency, etc. The Claims Tribunal taking note of the fact that the deceased died on the very day of the accident awarded a conventional amount of Rs. 5,000 towards pain and suffering which according to us does not call for any interference. Similarly, the Tribunal has awarded a sum of Rs. 10,000 towards loss of love and affection which according to us is reasonable and hence no interference is called for.
4. The other point canvassed is regarding the fixation of compensation for loss of dependency. Regarding the income of the deceased, except Exhs. A5 and A7 documents which would show that the deceased was doing certain contract works, claimants did not produce any other material before the Tribunal. The Tribunal has fixed the monthly income of the deceased at Rs. 1,800 and after deducting a sum of Rs. 600 towards personal expenses the monthly dependency was fixed at Rs. 1,2.00. The multiplier was also fixed at 12 having regard to the age of the deceased and the age of the appellants. Thus the total loss of dependency was fixed at Rs. 1,72,800. We find that the multiplicand and the multiplier applied by the Tribunal are just and reasonable. No interference is called for in this regard also.
5. In this case even though it was found that the appellants are entitled to a sum of Rs. 1,72,800 towards loss of dependency the Tribunal limited the same at Rs. 1,50,000 on the ground that the claim under the said head is only Rs. 1,50,000. It is the case of the appellants that the Tribunal was not justified in limiting the amount under loss of dependency at Rs. 1,50,000. The contention is that the Tribunal has got power to grant amounts under different heads in excess of what is claimed under each head and the only limitation is that the sum total of the amounts so granted shall not exceed the total amount claimed in the petition.
6. In the instant case, as already stated, the total claim is for a sum of Rs. 2,60,000 and the total compensation found payable is Rs. 2,11,800. Thus it is clear that the total amount fixed does not exceed the total amount claimed. So the only point to be considered is as to whether the Tribunal can grant amounts under different heads in excess of what is claimed under those heads in the claim petition.
7. In order to decide this issue it is necessary to have a probe into the relevant provisions of the Motor Vehicles Act and the Rules issued thereunder. The relevant provisions regarding the liability to pay compensation in respect of bodily injury sustained in a motor accident is contained in Chapter X of the Act. Section 140 (1) of the Act provides that where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of the said section. Sub-section (2) provides that the amount of compensation which shall be payable under Sub-section (1) in respect of the death of any person shall be a fixed sum of Rs. 50,000 and the amount of compensation payable under that sub-section in respect of permanent disablement of any person shall be a fixed sum of Rs. 25,000. Sub-sections (3) and (4) show that the liability under Sub-section (1) is a no fault liability. Subsection (5) of Section 140 provides that notwithstanding the liability under Sub-sections (1) and (2) cast on the owner of the vehicle he is also liable to pay compensation under any other law for the time being in force. Section 141 provides that the right to claim compensation under Section 140 in respect of death or permanent disablement of any person shall be in addition to any other right, except the right to claim under the scheme referred to in Section 163-A such other right thereafter in this section referred to as the right on the principles of fault to claim compensation in respect thereof under the provisions of this Act. Sub-section (3) provides for deduction of amount paid under Sub-section (1) of Section 140 from the amount determined under Sub-section (1) of Section 141 in case where the amount granted under the latter section is more than the amount granted under the former. Claims Tribunals are constituted under Section 165 of the Act for the purpose of adjudicating upon claims for compensation in respect of accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehicles or damages to any property of a third party so arising, or both. By the explanation to Sub-section (1) of Section 165 it is declared that the expression “claims for compensation in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles” includes claims for compensation under Section 140 and Section 163-A. Section 166 of the Act provides for making an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 165. Sub-section (4) as substituted by Section 53 of Act 54 of 1994 with effect from 14.11.1994 provides that the Claims Tribunal shall treat any report of accidents forwarded to it under Sub-section (6) of Section 158 as an application for compensation under this Act. Section 168 of the Act provides the procedure for passing the award by the Claims Tribunal. It also provides that on receipt of an application for compensation made under Section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties including the insurer an opportunity of being heard, hold an enquiry into the claim and subject to the provisions of Section 162 may make an award determining the amount of compensation which appears to it to be just. Section 169 of the Act specifies the procedure and powers of the Claims Tribunals. Sub-section (2) thereof gives the Tribunal all the powers of a civil court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed. Section 176 of the Act confers the power on the State Government to make rules for the purpose of carrying into effect the provisions of Sections 165 to 174 and in particular, such rules may provide for the form of application for claims for compensation and the particulars it may contain and the procedure to be followed by the Claims Tribunal in holding an inquiry, the powers vested in a civil court which may be exercised by a Claims Tribunal, etc.
(Emphasis added)
8. Rule 371 of the Kerala Rules provides that the application for payment of compensation shall be made in Form ‘Comp. A’. Rule 392 provides for judgment and award of compensation in terms of Section 168 of the Act. Rule 395 of the Rules provides that the provisions of Rules 9 to 13 and 15 to 30 of Order V, Rules 16 to 18 of Order VI, Order IX, Rules 3 to 10 of Order XIII, Rules 1 to 21 of Order XVI, Rules 1 to 3 of Order XXIII and Order XXVI of the First Schedule to the Code of Civil Procedure, 1908, shall, so far as may be, apply to the proceedings before the Claims Tribunal.
9. Form A prescribed under Rule 371 (1) of the Rules provides for the particulars to be furnished. Serial No. 25 which provides for other particulars, consists of two parts, which are as follows:
Part I
(a) loss of earnings from _______________ to ________________
(b) Partial loss of earnings from ___________ to _____________ at
the net rate of Rs ____________________ a day/week.
(c) Transport to hospital.
(d) Extra nourishment.
(e) Damage to clothing and articles.
(f) others
Part II
(g) Compensation for pain and suffering.
(h) Compensation for continuing or permanent disability, if any.
(i) Compensation for the loss of earning power.
Part I deals with special damages or pecuniary damages and Part II deals with general damages-non-pecuniary damages.
10. On a conspectus of the relevant provisions of the Act and the Rules mentioned above, it would appear that the power to determine the amount of compensation to be awarded to a claimant in respect of death or bodily injury caused in a motor accident is vested in the Claims Tribunal and that there is no limitation on such power. Though Section 140 of the Act provides for a fixed amount as compensation for death or permanent disability and Section 163-A gives a schedule of claims no such limitation is provided in respect of a claim under Section 141 of the Act based on the principle of fault. Section 168 makes it clear that it is for the Tribunal to determine the amount of compensation which appears to it to be just. Thus the Tribunal has got the right to fix compensation which according to it is just. Regarding the relevancy of pleadings before the Claims Tribunal it is pertinent to note that Rule 395 of the Kerala Rules does not extend the provisions of Rules 1 to 15 of Order VI or Orders VII and VIII of the Civil Procedure Code to proceedings before the Claims Tribunal. Rules 371 and 378 of the Rules deal with pleadings. From a reading of all these provisions it would appear that strict adherence to the pleadings, at any rate, in regard to quantum of compensation under different heads is not contemplated before the Motor Accidents Claims Tribunal. There is clear indication in the Act and the Rules that the Tribunal has got the power to fix the quantum of compensation under different heads, which the Tribunal deems just and reasonable and that no limitation has been imposed on such power.
(Emphasis added)
11. The question as to whether there are any fetters on the powers of the Tribunal to award compensation in excess of that which is claimed in the application had been the subject-matter of decisions by various High Courts in India. Before considering those decisions it will be profitable to refer to the decision of the Supreme Court in Sheikhupura Transport Co. Ltd. v. Northern India Transporters’ Insurance Co. Ltd., 1971 ACJ 206 (SC), regarding the powers of the Tribunal in the matter of fixing compensation under Section 110-B of the Motor Vehicles Act, 1939. The Supreme Court in that case observed that under the said section, the Tribunal is required to fix such compensation which appears to it to be just. It was further observed as follows:
The power given to the Tribunal in the matter of fixing compensation under that provision is wide. Even if we assume (we do not propose to decide that question in this case) that compensation under that provision has to be fixed on the same basis as is required to be done under Fatal Accidents Act, 1855 (Act 13 of 1855), the pecuniary loss to the aggrieved party would depend upon data which cannot be ascertained accurately but must necessarily be an estimate or even partly a conjecture. The general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained.
12. A Division Bench of the Gujarat High Court in Bai Nanda v. Shivabhai Shankerbhai Patel, 1966 ACJ 290 (Gujarat), while meeting a contention that there was no specific claim under a particular head held that so long as the compensation awarded does not exceed the compensation claimed, the amount awarded can be suitably split up and awarded under the two Sections 1-A and 2 of the Fatal Accidents Act, 1855. The very same court considered the question whether the Claims Tribunal has got the power to award excess amount under a particular head in Babu Mansa v. Ahmedabad MunicipalCorporation, 1978 ACJ 485 (Gujarat). In that case it was found that as against the claim of Rs. 1,000 under the head loss of income from the date of accident till the date of filing of the application the claimant was entitled to Rs. 1,200. In that context, Division Bench of Gujarat High Court held as follows:
It is true that in the claim application the compensation claimed by the appellant under this head was confined to Rs. 1,000. However, as long as the total amount to be awarded does not exceed the total amount claimed, there should be no objection in awarding higher amount than that claimed under one particular head, if on the true assessment of the evidence led at the trial, the claimant is found entitled to the same. In an application for compensation made under Section 110-A (1) of the Motor Vehicles Act, 1939 read with Rule 291 of the Bombay Motor Vehicles Rules, 1959 and the prescribed Form Comp. A the relevant particular which the claimant has to set out relates to the quantum of compensation and basis thereof. The basis to be broadly indicated on estimates. Besides, heads of compensation have to be regarded separately as aids to reaching a just amount. The Tribunal’s power to award just and proper compensation is, therefore, not fettered by the specification of an amount in the claim application under any head. We are supported in the view which we are taking by the decision in Bai Nanda v. Shivabhai (supra). It was there held that once loss under both the heads comprised in Sections 1-A and 2 of the Fatal Accidents Act, 1855 has been claimed and so long as the amount awarded does not exceed the amount claimed, the amount awarded can be suitably split up and awarded under the said two sections. The same principle will apply in cases of personal injury. So long as the award does not exceed the total amount claimed, there should be no objection in splitting it up under different heads and, even if a specific amount is claimed under a particular head, the Tribunal has the power to award an excess amount under that very head without amendment of the claim application provided the evidence justifies it.
13. In P. Satyanarayana v. I. Babu Rajendra Prasad, 1988 ACJ 88 (AP), a single Bench of the Andhra Pradesh High Court also considered the question of permissibility of shifting of claims from one head to another. M. Jagannadha Rao, J. (as his Lordship then was) considered the aforesaid question and held thus:
It has now been held that though the claimants have estimated different sums of damages under various heads, it is open to the court to award sums which are higher than those claimed under particular heads of damages, so long as the court does not exceed the total amount claimed.
Such a principle was first laid by the Gujarat High Court in Bai Nanda v. Shivabhai Shankerbhai Patel, 1966 ACJ 290 (Gujarat). That was a case of a death by murder in which J.B. Mehta and M.U. Shah, JJ. observed (para 47) that within the total sum of Rs. 20,000 claimed, the court could adjust between the loss to dependency and the loss to the estate. When a similar question arose in a claim for injuries in Babu Mansa v. Ahmedabad MunicipalCorporation, 1978 ACJ 485 (Gujarat), after referring to a claim of Rs. 1,000 towards loss of income till date of filing claim petition, the court awarded Rs. 1,200. P.D. Desai, J. (as he then was) and M.K. Shah, J. observed:
However, as long as the total amount to be awarded does not exceed the total amount claimed, there should be no objection in awarding higher amount than that claimed under one particular head, if on the true assessment of the evidence led at the trial, the claimant is found entitled to the same… So long as the award does not exceed the total amount claimed, there should be no objection in splitting it up under different heads and, even if a specific amount is claimed under a particular head, the Tribunal has power to award an excess amount under that very head without amendment of the claim application provided the evidence justifies it.
I am in entire agreement with the view expressed by the Gujarat High Court.
14. A Division Bench of the Bombay High Court in Kumar Mohamed Rafique v. MunicipalCorporation of Greater Bombay, 1986 ACJ 55 (Bombay), considered a contention that it was not open for the court to increase the amount of special damages from Rs. 15,300 which were claimed in the original application to Rs. 35,486.90 which it found entitled as special damages being the actual expenses incurred for the medical treatment of the deceased. The contention was that the grant of any amount in excess of Rs. 15,300 would amount to granting a claim not made in the application. In that context it was held that so long as the total amount granted by the court does not exceed the total amount of compensation claimed in the original application, there is no reason to reject the claim on the hyper-technical ground urged by the learned counsel. But in a subsequent decision of the Division Bench of the same High Court in MunicipalCorporation of Greater Bombay v. Kisan Gangaram Hire, 1987 ACJ 311 (Bombay), the same learned Judge, who rendered the decision in Kumar Mohamed Rafique’s case, 1986 ACJ 55 (Bombay), mentioned above distinguished the said case and after a detailed consideration of the relevant provisions of the Motor Vehicles Act, 1939, the Rules issued thereunder, relevant provisions of the Civil Procedure Code and the various decisions of the High Courts and the Supreme Court held that there are no fetters on the powers of the Tribunal to award compensation in excess of that which is claimed in the application. That was a case where the Tribunal awarded amounts more than that claimed in the application on the ground that what the applicants are expected to do while filing the application is to mention an estimated amount and that the amount does not restrict its power to determine what is just compensation. It is also observed that ‘amount of compensation claimed’ in the petition does not require the applicant to state the amount claimed under different sub-heads such as dependency benefits, medical expenses, pain and suffering, etc., that the amounts of compensation claimed are nothing but the particulars of the claim made and cannot always be calculated precisely and that the amount of compensation being the consequence of the accident which is the cause of action and since that amount would keep varying or fluctuating even till the date of the decision on the application, enough leeway is necessary in the matter of both claiming and granting of compensation. It was further observed that in all cases the quantum is to be justified by the claimant by leading necessary evidence and, therefore, it is neither fair nor realistic to insist that he shall not claim more than what is claimed by him at the initial stage or that in spite of the evidence on record, the Tribunal shall not grant more than what is claimed in the application. It is pointed out that the Act itself nowhere lays down that the Tribunal will not grant amount in excess of the amount claimed in the application. But before awarding higher compensation a proper notice should be given to the opposite parties to contest the claim even by leading evidence, if necessary and that the additional claim should as far as possible be taken in writing which should also indicate the reason why the additional claim is made.
15. It is seen that a similar view is taken by the Division Bench of the Madras High Court in G. Govindan v. C. David, 1990 ACJ 1039 (Madras). Justice K. Venkata-swami (as his Lordship then was) speaking for the Bench considered the contention taken by the counsel for the insurance company that the applicant cannot claim more than the maximum amount claimed before the Tribunal and also the contention of the counsel for the appellant that the consistent view taken by various High Courts and the Supreme Court in the matter of interpreting the scope of Section 110-B of the Motor Vehicles Act is to the effect that notwithstanding the defects of low claim made by the claimant, it is open to the Tribunal as well as the appellate court to award enhanced compensation, if circumstances warrant, to satisfy the test of just and fair compensation. The Division Bench after considering the decision of the Supreme Court in Sheikhupura Transport Co. Ltd. v. Northern India Transporters’ Insurance Co. Ltd., 1971 ACJ 206 (SC); Anand Kumar Jain v. Union of India, 1986 ACJ 774 (SC), and the decisions of the Bombay High Court in Sharifunnisa v. Basappa Ramchandra Date, 1986 ACJ 792 (Bombay), Delhi High Court in Kela Devi v. Ram Chand, 1986 ACJ 818 (Delhi), Bombay High Court in MunicipalCorporation of Greater Bombay v. Kisan Gangaram Hire, 1987 ACJ 311 (Bombay), the Punjab and Haryana High Court in Narinder Kaur v. Jagan Nath, 1987 ACJ 1039 (P&H), and Rajasthan High Court in Municipal Board, Mount Abu v. Hari Lal, 1988 ACJ 821 (Rajasthan), held as follows:
A careful perusal of the above decisions will clearly show that whenever the circumstances warrant, the court is justified in allowing the claimant to amend the petition for enhancement, and even without that, the court can exercise such power on the basis that in motor accident cases, what is important is the duty of the court, namely, fixing the just and fair compensation. One requirement is that before allowing enhancement petition, the opposite party must be given due notice and opportunity.
16. A learned single Judge of the Andhra Pradesh High Court has also taken the same view in New India Assurance Co. Ltd. v. G. Lakshmi, 1996 ACJ 1068 (AP). The learned Judge after adverting to the provisions of Section 110-B of the Motor Vehicles Act, 1939, held that it is evident from the above provision, the Tribunal shall grant a just compensation while considering the totality of the circumstances, that is to say, the compensation should be just in the opinion of the Tribunal and, therefore, it is clear that there is no embargo imposed by the legislature on the Tribunals to grant compensation over and above the amount claimed by the parties in a given case. A similar view has been taken by another learned single Judge of the Andhra Pradesh High Court in Shivaram Chowdhary v. A.P.S.R.T.C., Hyderabad, 1996 (2) LAC 58 (AP). The Karnataka High Court had also occasion to incidentally consider the question as to whether the claims under the sub-heads or under the aggregate claim would limit the power of the Tribunal to award higher amounts than that claimed in the application. Referring to the decision of the Bombay High Court in MunicipalCorporation of Greater Bombay v. Kisan Gangaram Hire, 1987 ACJ 311 (Bombay), the learned single Judge of the Karnataka High Court held that the principle stated therein is a correct one and having regard to the situation the appellants would be entitled to additional compensation. In this context, it is also relevant to note that the Supreme Court in N. Sivammal v. Managing Director, Pandian RoadwaysCorporation, 1985 ACJ 75 (SC), has considered a case where the High Court held that the award of Rs. 5,000 under the head mental agony suffered by the claimants as a result of the death of the deceased cannot legally be sustained and held since the deceased might have suffered continuous pain from the date of accident till his death and compensation was admissible for pain and suffering, suffered by the deceased the amount of Rs. 5,000 found inadmissible by the High Court can be sustained by changing the head.
17. From the decisions discussed as above, it is seen that there are two views among the various High Courts on the scope of the powers of the Tribunal and the courts to grant amounts in excess of that claimed in the application. The Gujarat and Andhra Pradesh High Courts have taken the view that as long as the total amount to be awarded does not exceed the total amount claimed, there should be no objection in awarding higher amount than that claimed under one particular head, if on the true assessment of the evidence led at the trial, the claimant is found entitled to the same. The other view is that there are no fetters on the powers of the Tribunal to award compensation in excess of that which is claimed in the application and that the only requirement is to give a proper notice to the opposite party to contest the claim even by leading evidence, if necessary before awarding higher compensation.
18. On a consideration of the relevant provisions of the Motor Vehicles Act and the Rules and the relevant provisions of the Civil Procedure Code, we have also found that the Act and the Rules do not restrict the powers of the Tribunal in awarding amount found by the Tribunal to be just even if it is in excess of that claimed in the application. However, we find that the Supreme Court had occasion to consider a similar matter in Adikanda Sethi v. Palani Swarni Saran Transports, 1997 ACJ 939 (SC). In that case the applicant claimed a sum of Rs. 1,00,000 towards the loss to the estate of the deceased and the support of the appellant as dependent of the deceased. The Tribunal awarded a sum of Rs. 1,00,000 which was confirmed in appeal by the High Court by enhancing the same by a further sum of Rs. 18,000. The Supreme Court applying the principles regarding determination of compensation in the case of fatal accidents laid down by the Supreme Court in U.P. State Road Trans. Corporation v. Trilok Chandra, 1996 ACJ 831 (SC), held that the claimants would get Rs. 1,40,000 towards compensation. However, the Supreme Court held that since the claim is limited to Rs. 1,00,000 the claimants are entitled to get only Rs. 1,00,000 as compensation. From the above decision, it is clear that even if the Tribunal or the court finds that a claimant is entitled to a higher amount than that claimed in the application, it will grant only the maximum amount that is claimed in the application. This decision of the Supreme Court accords with the view taken by the Gujarat High Court in the two decisions already mentioned and by the Andhra Pradesh High Court in P. Satyanarayana v. I. Babu Rajendra Prasad, 1988 ACJ 88 (AP). In other words, the extreme views taken by Bombay, Madras, Rajasthan and other High Courts that there are no fetters on the Tribunals or courts in awarding amount more than that claimed in the application has not found favour with the Apex Court.
19. Now coming to the facts of the present case as already stated, the appellant in the application has made a total claim of Rs. 2,60,000 as compensation. Though the Tribunal has found that the claimants are entitled to a sum of Rs. 1,72,800 as compensation for loss of dependency since the petitioner had claimed only a sum of Rs. 1,50,000 on that count, the Tribunal held that the compensation payable to the petitioners for loss of dependency is only Rs. 1,50,000. In view of the decisions of the Supreme Court and the decisions of various High Courts to the effect that so long as the total amount found entitled does not exceed the total amount claimed in the application there is no objection in awarding the amount found to be so entitled, we are of the view that the appellants are entitled to a sum of Rs. 1,72,800 (Rupees one lakh seventy-two thousand and eight hundred only) as compensation for loss of dependency. We order accordingly. Thus, in modification of the award passed by the Tribunal we hold that the total amount of compensation payable to the appellants jointly comes to Rs. 2,11,800. In the result in modification of the award passed in O.P. (MV) No. 1993 of 1994 the appellants are allowed to recover a sum of Rs. 2,11,800 (Rupees two lakh eleven thousand and eight hundred only) with interest at 12 per cent per annum from 27.10.1994, the date of application till the date of realisation. All other directions in the award will stand.