To our understanding of the situation, the claimants subsequent to the death of S. Gangadhara by not amending the petition to make claim under the heads of loss of dependency, loss of love and affection, loss of consortium did not commit any error. This claim made in the present case is independent of the other claims made by them in M.V.C. No. 109/2002. It was a new cause of action that arose for them subsequent to the death of S. Gangadhara and not earlier to it. Hence, we are of the firm opinion that the claim made in the present petition could not have been made in the earlier petition filed by the injured himself Hence, the question of constructive res judicata has no vital role in the present petition. {Para 16}
17. The Motor Vehicles Act being a Social Legislation, the technicalities and the niceties of the Civil Procedure Code cannot allowed to be raised in order to defeat the purpose of the very Act. The Act was enacted for the purpose of enforcing the principles of social justice. The observation of the Tribunal that the claimants could have amended their claim petition in M.V.C. No. 109/2002 and claimed compensation in respect of loss of dependency, loss of love and affection and loss of consortium, in our considered opinion, such amendment would have enlarged the scope of the petition, which was filed for a cause of action falling under Section 166(1)(a) of the M.V. Act, 1988 and the nature of the proceedings by such amendment if allowed would have shifted from Section 166(1)(a) to 166(1)(c) of the Act. Wherefore, we hold that filing of the second claim petition consequent upon the death of the injured S. Gangadhara was maintainable. In similar circumstances, the Coordinate Bench of this Court in the matter of Smt. Prabha and Others v. Sri. P.L. Nagesh and Others in M.F.A. No. 1271/2005 (MV) D.D. 8.6.2010 have taken a similar view by setting aside the order of dismissal of the second claim petition passed by the Tribunal under the ground of res judicata. There was no legal bar for the claimants herein to file second petition on the cause of action arising for them on the death of the injured during the pendency of M.V.C. No. 109/2002.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Misc. First Appeal No. 10280/2013 (MV)
Decided On: 26.06.2015
V. Anitha Gangadhara and Ors. Vs. S. Srirama Reddy and Ors.
Hon'ble Judges/Coram:
N.K. Patil and Rathnakala, JJ.
Author: Rathnakala, J.
Citation: MANU/KA/1621/2015,2016 ACJ 790 (Kar).
1. This appeal is directed against the judgment and award dated 3rd May 2013 passed in M.V.C. No. 7450/2004 on the file of the III Additional Senior Civil Judge and M.A.C.T., Bangalore (SCCH-18) ('the Tribunal' for short) whereby the claim petition of the appellants is dismissed.
2. By the impugned judgment, the jurisdictional Tribunal has rejected the petition filed by the claimants/appellants under Section 166 of the Motor Vehicles Act ('the Act' for brevity).
3. Succinctly stated, on 11.5.2001 one S. Gangadhara suffered grievous injury in a motor vehicle accident while proceeding on his Motor Cycle bearing registration No. KA-03/W-582 on Bangalore-Hosur NH-7 Road, towards Hosur. The rider of the offending motor cycle bearing registration No. TN-29/Q-2853 came in a high speed, rash and negligent manner from his behind and dashed to the rear portion of his motor cycle. Subsequently, on 3.5.2004, S. Gangadhara succumbed to the fatal injuries suffered during the said accident. During his life time, late Gangadhara had filed a petition seeking compensation in respect of the grievous injuries he had suffered before the very same Tribunal, which was registered in M.V.C. No. 109/2002. On his death, the claimants herein prosecuted the said case as his Class-I legal heirs and the said claim petition was allowed by awarding a compensation of Rs. 5,05,000/- with interest @ 6% per annum under the heads of loss of estate, medical treatment, transportation of the dead body, funeral and obsequies expenses vide Award dated 27.07.2005. During the pendency of M.V.C.109/2002, the claimants preferred present claim petition seeking compensation under the heads of loss of dependency, loss of consortium and loss of love and affection. The Tribunal after holding an enquiry awarded a compensation of Rs. 5,90,000/- vide Award dated 27.09.2007.
4. Aggrieved by the said Award, the Insurance Company preferred an appeal in M.F.A. No. 6708/2008 before this Court questioning the maintainability of second claim petition. The claimants dissatisfied by the quantum of compensation filed Cross Objection to the same in Cr.Ob.No.43/2010. This Court by order dated 17th October 2012 remanded the matter with a direction to frame the issue on the point, whether the claim petition filed by the legal heirs after the death of S. Gangadhar was maintainable and to reconsider the matter afresh.
5. After remand, the Tribunal framed the following additional issue:
"Whether the petitioners prove that petition filed after death of Gangadhara is maintainable?"
and answered the same in the negative and has rejected the petition, though it has quantified the compensation, for which the claimants are entitled at Rs. 9,22,000/-. The Tribunal has observed that the claim petition is hit by Order II Rule 2 of CPC for omitting to seek compensation under the head of loss of dependency and loss of love and affection in the claim petition in M.V.C. No. 109/2002.
6. Sri. N.S. Bhat, learned Counsel appearing for the appellants submits that, the Tribunal has admitted the fact that the death of S. Gangadhara was due to the accidental injuries he had suffered on 11.5.2001. It is also an admitted fact that in the previous petition in M.V.C. No. 109/2002, they had not claimed compensation in respect of loss of dependency and loss of love and affection for which they are entitled to as the dependants/Class-I legal heirs of deceased S. Gangadhara. It is permissible for them to claim compensation separately, in view of the judgment of this Court reported in MANU/KA/0485/1990 : ILR 1990 Kar 4300 (FB) in the matter of Kannamma v. Deputy General Manager. The Tribunal has committed a serious error in not following the principles laid down in the said judgment. The judgment and award passed in M.V.C. No. 109/2002 has become final. The entire facts as regards to occurrence of the incident on 11.05.2001, involvement of the Motor Cycle bearing registration No. TN-29/Q-2853 in the accident, injury suffered by S. Gangadhara during the accident, his death in consequence to the said accidental injuries and the actionable negligence on the part of the rider of the offending Motor Cycle, are all held proved in M.V.C. No. 109/2002. Having recorded the finding that Gangadhara died due to the injuries suffered in the vehicular accident, in the judgment and award of M.V.C. No. 109/2002, the claim towards loss of dependency, loss of love and affection and loss of consortium as sought in the present petition, on the same cause of action, cannot be denied to claimants on hyper technical questions.
7. The principles of constructive res judicata has no application in a proceeding under the Motor Vehicles Act. Similarly the provisions of Section 11, Order II Rule 2 and Order VII Rule 1 of CPC quoted by the Tribunal are also not applicable in the present summary proceeding. Rejection of the claim petition has resulted in miscarriage of justice. Hence, the impugned judgment may be set aside and reasonable compensation may be ordered.
8. Sri. Anup Seetharama, learned Counsel appearing on behalf of Sri. B.C. Seetharama Rao, for second respondent/Insurance Company submits that, the Tribunal has rightly rejected the claim petition for not making whole claim in the previous petition M.V.C. No. 109/2002. Having come on record as the legal heirs of injured S. Gangadhara, it was the bounden duty of the claimants to seek appropriate compensation under the heads applicable to them by amending the claim petition. The Tribunal in M.V.C. No. 109/2002 having taken into consideration the entire loss has awarded compensation of Rs. 1,00,000/- towards loss of estate; Rs. 4,00,000/- towards treatment expenses; Rs. 2,000/- for transportation of body and Rs. 3,000/- for funeral and obsequies expenses. The claimants have not chosen to challenge the said award. The Insurance Company has complied with its obligation under the Award and the claimants have availed the benefit. The Tribunal has rightly applied the statutory provisions of Order II Rule 2 of CPC and found that the claimants cannot seek wider relief in the subsequent petition, which they could have sought in the earlier petition. Omission to seek relief under the heads of loss of dependency, loss of love and affection and loss of consortium constitutes constructive res judicata and they are estopped from seeking the same claim in the subsequent claim petition. Having waived their rights in the earlier petition, now they cannot make fresh claim on the very same cause of action in the second claim petition, hence the appeal is liable to be rejected.
9. In the light of the above submissions, the sole point that arises for our consideration is:
"Whether the Tribunal was justified in rejecting the relief under the heads "loss of dependency, love and affection and consortium" claimed for the first time by the legal heirs of the deceased S. Gangadhara in the present petition?"
10. It is a fact that S. Gangadhara during his life time, filed a petition under Section 166 of the Motor Vehicles Act, in M.V.C. No. 109/02 in respect of the personal injuries, medical expenses, pain and suffering etc.,. During the pendency of the petition, he expired and his legal heirs prosecuted the case and were awarded compensation of Rs. 5,90,000/- under the heads of loss of estate, medical expenses, transportation of the body, funeral and obsequies expenses. Said award is complied by the Insurance Company in lieu of judgment and award dated 27.7.2005. During the pendency of the said proceedings, the legal heirs of deceased S. Gangadhar have filed M.V.C. No. 7450/2004 under Section 166 of the Motor Vehicles Act. Towards loss of dependency, loss of love and affection and loss of consortium, the Tribunal vide award dated 27.9.2007 awarded compensation at Rs. 5,90,000/- against the Insurance Company. Both parties brought the lis to this Court in M.F.A. No. 6708/2008 and Cross Objection No. 43/2010 respectively. This Court vide judgment dated 17.10.2012, in the light of the rival submissions made at the Bar, observed at Para 7 of the judgment as under:
"7.................., it is manifest on the face of the judgment that, the Tribunal has committed an error and irregularity in passing the impugned judgment and award, resulting in miscarriage of justice. It is not in dispute that, the specific stand of the appellant-insurer in its objections statement was that the claim petition filed by deceased Gangadhara in MVC No. 109/2002 was still pending and after his death his legal representatives were brought on record and hence the petition was hit by res judicata. There was no fault on the rider of the vehicle in question. Therefore, the Tribunal ought to have framed necessary issue for consideration to decide whether the claim petition under Section 166 of MV Act filed by the legal representatives of the deceased after death of the deceased Gangadhara was maintainable.....?"
The Appeal so also the Cross Objection were allowed. The award dated 27.9.2007 passed in M.V.C. No. 7450/2004 on the file of the III Additional Judge and M.A.C.T., Bangalore, was set aside and the matter was remitted back to the Tribunal for reconsideration. The Tribunal in compliance of the direction of this Court though has quantified the compensation at Rs. 8,82,000/- towards loss of dependency; Rs. 20,000/- towards loss of love and affection and Rs. 20,000/- towards loss of consortium, still rejected the petition as not maintainable on the ground of constructive res judicata as claimants had omitted to seek relief regarding loss of dependency in M.V.C. No. 109/2002.
11. A Full Bench of this Court in the matter of Kannamma v. Deputy General Manager referred to supra, ruled regarding right of the legal heirs of a person injured during the motor vehicle accident to claim compensation thus:
"12. In the result, the Full Bench answers the question referred for its decision by the Division Bench, thus:
(i) A claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, chiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss to estate) cannot, on such person's death occurring not as a result or consequence of bodily injuries sustained from a motor accident, be prosecuted by his/her legal representatives; but
(ii) A claim petition presented under Section 110A of the Motor Vehicles Act, 1939, by the person sustaining bodily injuries in a motor accident, claiming compensation for personal injuries as also for compensation towards expenses, loss of income, etc., (loss of estate) can, on such person's death occurring as a result or consequence of bodily injuries sustained in the motor accident, be prosecuted by his/her legal representatives only in so far as the claim for compensation in that claim petition relates to loss to estate of the deceased person due to bodily injuries sustained in the motor accident."
12. Section 110A of the Motor Vehicles Act, 1939 is in pari materia with Section 166 of the Motor Vehicles Act 1988. Relevant provisions of clause (a) and (b) of sub-section (1) of Section 110A of 1939 Act, read thus:
"(a) by the person who has sustained the injury; or
....or
(b) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or"
Clause (a) and (c) of sub-section (1) of Section 166 of M.V. Act, 1988 reads thus:
"166. Application for compensation
(1) An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-.
(a) by the person who has sustained the injury, or
(b)........
(c) Where death has resulted from the accident, by all or any of the legal representatives of the deceased; or
(d)....."
13. The observation made by the Full Bench of this Court holds the field with all force in respect of the right of the legal representatives of a victim of a motor vehicle accident. Admittedly, the earlier petition M.V.C. No. 109/2002 was filed by the injured, though under the heading "Section 166", virtually it was under Section 166(1)(a) of the Act of 1988. The petition filed by his legal heirs consequent upon his death though under the heading "Section 166", it is virtually under Section 166(1)(a) and (c) of the Act. Since the victim expired during the pendency of the proceedings of M.V.C. No. 109/2002, naturally his legal heirs came on record and have prosecuted the case for relief as permissible to them under law and on his death, they have filed the present petition. It is a matter to be noted that later petition was pending at the time the earlier M.V.C. No. 109/2002 was taken up for consideration and it is not the case of anybody that the claimants are making double claim under the same head. While disposing of M.V.C. No. 109/2002 on 27.7.2005 itself it was well within the knowledge of the concerned Tribunal that the claimants have filed M.V.C. No. 7450/2004 towards loss of dependency and funereal expenses. In view of the judgment of Full Bench of this Court in MANU/KA/0485/1990 : ILR 1990 Kar 4300 (supra), the petition filed by the deceased seeking compensation for loss of estate and treatment expenses prosecuted by his legal heirs is allowed. That being so, it is clear that the contentious issue between the parties in M.V.C. No. 7450/2004 was not an issue in the earlier petition M.V.C. No. 109/2002.
14. The concept of constructive res judicata evolves from Section 11 read with Explanation IV of CPC, which reads thus:
"11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
.....
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
...."
15. The Apex court in the matter of Ramchandra Dagdu Sonavane (Dead) by L.Rs. v. Vithu Hira Mahar (Dead) by LRs. & Ors., reported in MANU/SC/1731/2009 : AIR 2010 SC 818 explained the meaning of doctrine of constructive res judicata as under:
"31) Res-judicata and Code of Civil Procedure:- It is well known that the doctrine of res-judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits. But apart form the codified law, the doctrine of res-judicata or the principle of the re judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the code of Civil Procedure and in many other situations also Principles not only of direct res-judicata but of constructive res-judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res-judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties. The Principle of res judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided."
16. To our understanding of the situation, the claimants subsequent to the death of S. Gangadhara by not amending the petition to make claim under the heads of loss of dependency, loss of love and affection, loss of consortium did not commit any error. This claim made in the present case is independent of the other claims made by them in M.V.C. No. 109/2002. It was a new cause of action that arose for them subsequent to the death of S. Gangadhara and not earlier to it. Hence, we are of the firm opinion that the claim made in the present petition could not have been made in the earlier petition filed by the injured himself Hence, the question of constructive res judicata has no vital role in the present petition.
17. The Motor Vehicles Act being a Social Legislation, the technicalities and the niceties of the Civil Procedure Code cannot allowed to be raised in order to defeat the purpose of the very Act. The Act was enacted for the purpose of enforcing the principles of social justice. The observation of the Tribunal that the claimants could have amended their claim petition in M.V.C. No. 109/2002 and claimed compensation in respect of loss of dependency, loss of love and affection and loss of consortium, in our considered opinion, such amendment would have enlarged the scope of the petition, which was filed for a cause of action falling under Section 166(1)(a) of the M.V. Act, 1988 and the nature of the proceedings by such amendment if allowed would have shifted from Section 166(1)(a) to 166(1)(c) of the Act. Wherefore, we hold that filing of the second claim petition consequent upon the death of the injured S. Gangadhara was maintainable. In similar circumstances, the Coordinate Bench of this Court in the matter of Smt. Prabha and Others v. Sri. P.L. Nagesh and Others in M.F.A. No. 1271/2005 (MV) D.D. 8.6.2010 have taken a similar view by setting aside the order of dismissal of the second claim petition passed by the Tribunal under the ground of res judicata. There was no legal bar for the claimants herein to file second petition on the cause of action arising for them on the death of the injured during the pendency of M.V.C. No. 109/2002.
18. Having held as above, now we are at examining to what legitimate compensation the claimants are entitled towards loss of dependency, loss of consortium and loss of love and affection suffered by the family.
19. Admittedly, the deceased was an Ex-Serviceman from the Military; he had passed personality test conducted by KPSC for appointment of Class I and II Officers and in all probability had a promising future. The Tribunal in the said circumstance has taken a notional income as on the date of his death as Rs. 7,000/- per month; as on the date of his death, his age was 41 years. By applying the multiplier of T4' appropriate to his age (as per the judgment of the Apex Court in the case of Sarla Verma and Others v. Delhi Transport Corporation and another reported in MANU/SC/0606/2009 : 2009 ACJ 1298) and taking note of the fact there were three dependants in the family viz., wife and two children, by deducting 1/3rd of his income towards his personal expenses, the Tribunal has awarded a compensation of Rs. 8,82,000/- (Rs.7,000/- x 1/4 x 12 x 14) towards loss of dependency, which in our opinion does not call for interference.
20. Having regard to the date of the accident, age and avocation of the deceased, we hold that the said calculation is proper and does not call for interference. Towards conventional heads, Rs. 40,000/- is awarded by the Tribunal. Having regard to the date of the accident and with a due consideration to the plight of the young widow and minor children, we hold that the amount awarded under conventional heads is less. Hence, we award Rs. 50,000/- towards loss of consortium to the widow as against Rs. 20,000/- awarded by the Tribunal and Rs. 50,000/- towards loss of love and affection to the wife and both children as against Rs. 20,000/-, thereby total compensation comes to Rs. 9,82,000/- as against Rs. 9,22,000/- worked out by the Tribunal. That is the compensation the appellants/claimants are entitled to with interest @ 6% per annum from the date of petition till realization.
21. For the foregoing reasons, the instant appeal filed by the appellants is allowed in part.
The judgment and award dated 3rd May 2013 passed in M.V.C. No. 7450/2004 on the file of the III Additional Senior Civil Judge and M.A.C.T., Bangalore (SCCH-18), is hereby set aside.
The claim petition filed by the appellants under Section 166 of the Motor Vehicles Act is allowed, by awarding a compensation of Rs. 9,82,000/- with interest @ 6% per annum from the date of petition till realization payable by the second respondent/the United India Insurance Co. Ltd., being the insurer of the vehicle in question.
The second respondent/insurer is directed to deposit the enhanced compensation amount along with proportionate interest within 3 weeks from the date of receipt of the copy of this judgment and award.
Out of the amount so deposited, Rs. 4,00,000/- with proportionate interest shall be invested in the name of the first appellant in Fixed Deposit in any Nationalized/Scheduled/Grameena Bank of her choice for a period often years renewable for another ten years, with liberty to her to withdraw the interest accrued, periodically.
Out of remaining amount, Rs. 2,00,000/- each in the names of appellant Nos. 2 and 3 with proportionate interest shall be invested in Fixed Deposit in any Nationalized/Scheduled/Grameena Bank of their choice for a period of five years renewable for another five years, with liberty to withdraw the interest accrued on it, periodically.
Remaining amount of Rs. 1,82,000/- with proportionate interest shall be released in favour of first appellant.
Office to draw the award, accordingly.
No comments:
Post a Comment