WILCY STEPHEN Vs. A.C. STEPHEN

JUDGEMENT

(1.) These appeals arise from a common award dated 27.9.2010 in O.P.(M.V)Nos.503 and 1048 of 2006 passed by the Motor Accidents Claims Tribunal, Ernakulam. In fact, both the appeals have been preferred by one and the same person and therefore, hereafter in this judgment she will be referred to as 'the appellant'. The appellant herein filed the aforementioned claim petitions seeking compensation for the death of her two sons namely, Clifford Stephen and Steev Stephen in a motor vehicle accident that occurred on 7.5.2005. O.P. (M.V)No.503 of 2006 was filed seeking compensation for the death of Steev Stephen and O.P.(M.V)No.1048 of 2006 was filed seeking compensation for the death of Clifford Stephen. On that day, the deceased Clifford Stephen was driving the Maruti Alto Car bearing Reg.No.KL-07/AT-5743 belonging to the first respondent who is none other than his own father, from east to west through Thevara bridge. His brother Steev Stephen was sitting beside him on the left seat. During its further course the said vehicle hit against the rear side of the Lorry bearing Reg.No.TN-57/B-7864 and consequently, both of them sustained injuries. Clifford Stephen died instantaneously and Steev Stephen was taken to Medical Trust Hospital, Ernakulam. While undergoing treatment there as an inpatient, on the 4th day, he too breathed his last. It is in the said circumstances that the aforementioned claim petitions have been filed. In fact, O.P.(M.V) No.1048 of 2006 was filed under Sec. 163-A of the Motor Vehicles Act (for short 'the Act') whereas O.P.(M.V)No.503 of 2006 was filed under Sec. 166 of the Act. Though the Tribunal had not conducted a joint enquiry it is a fact that the claim petitions were disposed of by the Tribunal as per the common judgment dated 27.9.2010. Evidently, paragraphs 9 and 10 of the impugned award would reveal that separate enquiry was conducted by the Tribunal and in O.P.(M.V)No.1048 of 2006 Exts.A1 to A13 were got marked and in O.P.(M.V)No.503 of 2006 Exts.A1 to A14 were got marked. The said fact is discernible from the appendix to the impugned award, as well. Paragraph 10 would reveal that after conducting separate enquiry, on finding that the victims in both the cases died in the same occurrence common judgment was delivered by the Tribunal. The Tribunal, after considering the evidence on record and the rival contentions passed an award for a total compensation of Rs.1,96,500.00 in O.P.(M.V) No.1048 of 2006 and Rs.1,17,000.00 in O.P.(M.V)No.503 of 2006. In both the claim petitions it was ordered that the amounts awarded would carry interest at the rate of 8% per annum from the date of filing of the respective petitions till realisation. It is feeling aggrieved by and dissatisfied with the quantum of compensation granted thereunder that M.A.C.A.Nos.258 of 2011 and 377 of 2011 are filed, as mentioned hereinbefore.

(2.) We have heard the learned counsel for the appellant in both the appeals and also the learned counsel appearing for the Insurance Company which is arrayed as respondents 2 and 5 on account of it being the insurer of both the vehicles involved in the accident.

(3.) We will firstly consider whether the Tribunal has committed an error, warranting interference, by disposing of both the claim petitions, one filed under Sec. 163-A of the Act and the other under Sec. 166 of the Act, by a common judgment. True that the term employed under Sections 168 and 173 of the Act is 'award' and not 'judgment'. But then, Rule 392 of the Kerala Motor vehicles Rules, 1989 provides as follows:- "392. Judgment and award of compensation.-(1) The Claims Tribunal in passing orders, shall record concisely in a judgment, the findings on each of the issues framed and the reasons for such findings and make an award specifying the amount of compensation to be paid by the insurer, or the owner in the case of vehicles which are not insured and also the person or persons to whom compensation shall be paid. (2) Where compensation is awarded to two or more persons the Claims Tribunal shall also specify the amount payable to each of them. (3) The Claims Tribunal shall furnish copies of the judgment as required to be recorded under sub-rule (1) to the Secretary of the Regional Transport Authority, the registering authority and the licensing authority concerned for taking such action has the authorities consider necessary against the drivers, conductors or owners or the vehicle involved in the accident. (4) Notwithstanding anything contained in sub-rules (1) and (2) the record of judgment shall, in respect of claims exceeding five thousand rupees, contain the evidence which shall either be verbatim or a reasonably complete and full memoranda of testimony explaining the basis of compensation, the findings on each such evidence and the reasons for such findings, before making an award specifying the amount of compensation." Evidently, after recording findings on each of the issues framed and the reasons for the findings in the common judgment the Tribunal passed separate awards specifying the amount of compensation to be paid, in both the claim petitions. True that the scope of enquiry under Sec. 163-A and 166, of the Act are different and therefore, owing to the ostensible difference in the scope of enquiry it would be advisable to deal with such applications separately. The Tribunal is empowered to give separate awards in separate petitions even though those petitions arose out of the same accident (See National Insurance Co. Ltd. Vs. Daya Rani 2003 (2) KLT SN 163). But, we may hasten to add that this method cannot always be followed as in a case where there is a likelihood of arriving at contradictory and inconsistent decisions on the same questions in respect of claim petitions arising from the same occurrence, as in this case. As law now stands, though a claimant shall not be required to plead or establish that death or permanent disablement in respect of which claim has been made was due to any of the three faults namely, 'wrongful act', 'neglect' or 'default' of the owner of the vehicle or vehicles concerned or of any other person, in a claim petition filed under Sec. 163.A of the Act, the insurer or the owner of the vehicle/vehicles concerned could defeat such a claim by pleading and establishing any of the aforesaid three faults on the part of the victim or claimant, to avoid the liability. But, as regards a claim under Sec. 166 of the Act it is essential to plead and/or prove negligence on the part of the driver/rider, in order to succeed. If such claim petitions happened to be filed pertaining to the very same occurrence, one under Sec. 163-A and the other under Sec. 166, of the Act and if the issue whether the accident occurred due to the negligence of the driver/rider of the alleged offending vehicle or due to the negligence of the deceased or the claimant who is the victim of the accident, arises for consideration in both the claim petitions, to avoid contradictory and inconsistent decisions on the same questions in claim petitions arising from the same occurrence, they will have to be jointly enquired into. It is to be noted that the hallmark of a judicial decision lies in avoidance of contradictory and inconsistent decisions on the same questions in such situations. Evidently, such a situation emerged in the cases on hand and therefore, having regard to the facts and circumstances, we do not find any illegality in the method adopted by the Tribunal. Therefore, we will proceed with the consideration of the captioned appeals, in accordance with law. M.A.C.A. No. 258 of 2011