P.N.UNNI v. BABY JOHN

MFA NOS.442/97 & CON. CASES.2M.F.A. No.562 of 1997 arises from the award passed in O.P.(MV)No.1104 of 1993 by the same Tribunal. The said appeal is filed by theK.S.R.T.C. claiming enhancement for the damage caused to the bus.Parties to these appeals are referred to as petitioners and respondents asmentioned in O.P.(MV) No. 699 of 1993. 2. The facts of the case in nut shell are as follows: O.P.(MV) No.699 of 1993 was filed under Section 166 of the MotorVehicles Act, 1988 (hereinafter referred to as (“the M.V. Act”) claimingcompensation for the death of Monisha Unni who died in a motor vehicleaccident on 5.12.1993 at 6 a.m. at X'Ray Junction, Cherthala. Thepetitioners are the father, mother and brother of the deceased. The firstand second respondents are respectively the owner and insurer of the car inwhich the deceased was travelling. The third and fourth respondents arerespectively the owner and driver of the bus. The deceased Monisha wasa famous cine artist and dancer. She was aged 21 at the time of her death.She bagged the National award for the first film in which she acted at theage of 14. The deceased had acted in 25 films and in 1992 itself she hadacted in six films. The petitioners stated that deceased Monisha was anexpert in Bharathanatyam, Mohiniyattom and other classical dances, thatshe used to perform dance programmes every year in the U.S.A., U.A.E., MFA NOS.442/97 & CON. CASES.3Kuwait and other Gulf countries as well as in Kerala and other States andthat she used to get Rs.1,50,000/- for a single set of programme in Gulfcountries and Rs.10,000/- for one programme in Kerala and other States.They also stated that the deceased used to get Rs.50,000/- to Rs.1,00,000/-for a single film and that her annual income was more than Rs.6,00,000/-.According to them, had it not been for the accident, the deceased wouldhave continued in her profession for at least twenty years more. They,therefore, claimed Rs. one crore as compensation, but limited their claim toRs.60,00,000/-. The petitioners further stated that the accident occurreddue to the negligence of the driver of car bearing Registration No..KDE3774 in which the deceased was travelling and the driver of K.S.R.T.C.bus bearing Registration No.KLX 6139. The driver of the car and anotherperson also died in the accident. The claim was resisted by respondents 1to 4. The first and second respondents contended that the accidentoccurred due to the negligence on the part of the fourth respondent, thedriver of the bus and hence they are not liable to pay any compensation.Though the insurance policy of the car was admitted, they disputed theincome of the deceased and the dependency of the petitioners. The thirdand fourth respondents filed a joint written statement denying their liabilityto pay compensation. According to them, the accident occurred due to thenegligence on the part of the driver of the car. They also disputed the MFA NOS.442/97 & CON. CASES.4income of the deceased and the dependency of the petitioners. The secondpetitioner also filed another O.P.(MV) No. 700 of 1993 claimingcompensation for the injuries sustained by her in the accident. Both theseOriginal Petitions and O.P.(MV) No.1104 of 1993 filed by the K.S.R.T.C.were tried together. The mother of the deceased was examined as PW.1.Four other witnesses were examined on the side of the petitioners in O.P.(MV) Nos.669 and 700 of 1993 as PWs.2 to 5 and Exts.A1 to A81 weremarked. Ext.B1 was marked on the side of the respondents. PWs.1 to 3were examined on the side of the petitioner in O.P.(MV) No.1104 of 1993and Exts.A1 to A6 were marked. The father, mother and brother ofdeceased Monisha who are the petitioners in O.P.(MV) No.699 of 1993claimed Rs.60,00,000/- as compensation for the death of Monisha. Themother of the deceased who is the claimant in O.P.(MV) No.700 of 1993claimed Rs.5,00,000/- as compensation for the injuries sustained by her inthe accident. 3. The Tribunal found that the accident occurred due to thenegligence on the part of the driver of the car and that the K.S.R.T.C. busdriver also contributed to the accident in the proportion of 80% and 20% .By a common award dated 6.9.1996 the Tribunal awarded Rs.9,49,000/-with 12% interest from the date of the Original Petition till realisation to MFA NOS.442/97 & CON. CASES.5the claimants in O.P.(MV) No.699 of 1993. The first petitioner wasgranted Rs.3,00,000/-, the second petitioner Rs.5,00,000/- and the balanceamount of Rs.1,49,000/- was granted to the third petitioner. The petitionerswere allowed to realise 80% of the total amount of Rs.9,49,000/- with 12%interest from respondents 1 and 2 and the balance 20% with 12% interestfrom respondents 3 and 4. The Tribunal also allowed partly the claim inO.P.(MV) No.700 of 1993. The mother of the deceased who is thepetitioner in O.P.(MV) No.700 of 1993 was permitted to realise an amountof Rs.2,42,500/- from the respondents therein with 12% interest from thedate of the petition till realisation. In that case also, the secondrespondent was directed to pay 80 % of the award amount and the thirdrespondent was directed to pay 20% of the amount. The petitioner inO.P.No.1104 of 1993 was allowed to realise from the first and secondrespondents therein 80% of Rs.36,180/- (Rs.28,944/-) with 12% interestper annum from the date of the petition till realisation. The award passedby the Tribunal is under challenge in these appeals. 4. M.F.A. NO.442 OF 1997: One of the questions to be consideredin this appeal is whether a brother of a person killed in a motor vehicleaccident can claim compensation in an application filed under Section 166of the M.V. Act. The appeal is filed by the father, mother and brother of MFA NOS.442/97 & CON. CASES.6the deceased. who are the claimants in O.P.(MV) No.699 of 1993, beingaggrieved by the inadequacy of the compensation awarded. Section 166(1)of the M.V.Act states the different set of persons who can file applicationsfor compensation arising out of an accident of the nature specified in sub-section(1) of Section 165 of the M.V.Act. Sub-clause © of Section 166(1)is extracted below:“Where death has resulted from the accident byall or any of the legal representatives of thedeceased.”Claim under Section 1-A of the Fatal Accidents Act, 1855 can be madeonly for the benefit of spouse, parent and child of the deceased; it cannotbe made for the benefit of brother or other relations of the deceased. Thescope of Section 166 of the M.V.Act is wider and more comprehensiveand under this provision claim can be made by or for the benefit of all thelegal representatives of the deceased. The expression 'legal representative'has not been defined in the Act. Definition of the expression 'legalrepresentative' has been incorporated in Section 2(11) of the Code of CivilProcedure, 1908. According to this definition, 'legal representative' meansa person who in law represents the estate of a deceased person andincludes any person who intermeddles with the estate of the deceased and MFA NOS.442/97 & CON. CASES.7where a party sues or is sued in a representative character the person onwhom the estate devolves or the party so suing or sued. The abovedefinition, no doubt, in terms does not apply to a case before the ClaimsTribunal but it has to be stated that even in ordinary parlance the saidexpression is understood almost in the same way in which it is defined inthe Code of Civil Procedure. The definition reflects the sense in whichthe expression is understood ordinarily and, therefore, must govern casesbefore the Tribunal. Ordinarily, heirs of the deceased are the persons whorepresent the estate of the deceased and must be taken to be his legalrepresentatives. A legal representative in a given case need notnecessarily be the wife, husband, parent and child. It is thus clear thatin case of death of a person in a motor vehicle accident, compensation canbe claimed only by the legal representatives. They may claim besidesspecial damages etc. compensation for economic loss and loss to theestates. Viewed in this light, brothers or other relations of the deceasedwho are not the heirs of the deceased, not being his legal representatives,cannot claim compensation. This is so even if as a matter of fact they weredependent on the deceased for financial help.5. Learned counsel appearing for the Insurance Company submittedthat when the parents are alive, siblings cannot be legal heirs. Under MFA NOS.442/97 & CON. CASES.8Section 15(1) of the Hindu Succession Act, the property of a female Hindudying intestate shall devolve according to the rules set out in Section 16 -(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs ofthe husband; © thirdly, upon the mother and father; (d) fourthly, upon theheirs of the father; and (e) lastly upon the heirs of the mother. Section 16of the Hindu Succession Act regulates the order of priority among the fivegroups of heirs mentioned in Section 15(1) and the ratio of shares for eachgroup. According to Rule 1 of Section 16 of the Hindu Succession Act,among the heirs specified in sub-section (1) of section 15, those in oneentry shall be preferred to those in any succeeding entry and thoseincluded in the same entry shall take simultaneously. Thus it is clear thatthe five groups are in the descending order and that the heirs in each ofthe group will take simultaneously. In the decision reported in GujaratState Road Transport Corporation v. Ramanbhai Prabhabhai, 1987ACJ 561 (SC) which related to the case of a claim petition filed bybrothers of a minor child who died in a motor vehicle accident, on thebasis that they were the heirs and legal representatives of the deceased,the Supreme Court observed that in Indian families brothers, sisters andbrothers' children and sometimes foster children live together and they aredependent upon the bread-winner of the family and if the bread-winner is MFA NOS.442/97 & CON. CASES.9killed on account of a motor vehicle accident, there is no justification todeny them compensation. The Supreme Court held that the brother of aperson who dies in a motor vehicle accident is entitled to maintain apetition under Section 110-A of the Act, if he is a legal representative ofthe deceased. 6. The decision of the Supreme Court cited supra was followed bythe Madhya Pradesh High Court, Indore Bench in the decision reported inVaman v. Ved Prakash, 2007 ACJ 174 and by a Division Bench of theHigh Court of Judicature at Gauhati in the decision reported in Union ofIndia v. Golendra Moshahari, 2005 ACJ 263 . In the latter decision, theDivision Bench held that the brother of the deceased is not a heir whenthe father is alive. The Court observed that under the Hindu SuccessionAct, when the father is alive, the brother has no right to claim property ofhis deceased brother as heir. Hence, the brother not being the heir, thecompensation could not have been awarded in his favour individually noralong with his father. 7. Learned counsel appearing for the claimants invited our attentionto the decision reported in Maharashtra Road Transport Corporationv. Tulsa Bai Tukaram Kadava and Others, 1990 ACJ 523 and Shyama MFA NOS.442/97 & CON. CASES.10v. Radhyeshyam, 1992 ACJ 863 (MP). Counsel submitted that in theformer decision, the High Court of Judicature at Bombay had come to adifferent conclusion relying on the decision of the Supreme Court in thedecision reported in Gujarat State Road Transport Corporation v.Ramanbhai Prabhabhai, 1987 ACJ 561 (SC). With great respect, weare of the view that the above conclusion is based on a misappreciation ofthe decision of the Supreme Court. A Division Bench of the CalcuttaHigh Court in the decision reported in Monorama Devi v. OrientalInsurance Co. Ltd., 2003 ACJ 278 examined the question as to whetherthe father who is a class II heir is entitled to compensation along withwidow and mother of the deceased who are class I heirs and held that thefather who is a class II heir will not be entitled to claim compensation.8. A reading of Section 166 of the M.V. Act read with the decisionscited supra, we are of the view that the legal position is that claim in thecase of a fatal accident under Section 166 of the M.V. Act can be made bythe legal representatives of the deceased and right is not confined for thebenefit of the spouse, parent or child of the deceased who alone can claimcompensation under Section 1-A of the Fatal Accidents Act. The scope ofSection 166 of the M.V.Act is wider and more comprehensive. Under thisprovision, the legal representative in a given case need not necessarily be MFA NOS.442/97 & CON. CASES.11a wife, husband, parent and child and claim can be made by or for thebenefit of all the legal representatives of the deceased. In the case ofFatal Accidents Act, such claim can be made only for the benefit ofspouse, parent and child of the deceased. A brother of the deceased maybe a legal representative of the deceased in the absence of preferentialheirs under the personal law governing the parties and if so, he can claimcompensation. But he cannot do so, if he is not a legal representativeentitled to succeed to the estate of the deceased. In this case, the thirdappellant is not a legal representative since the mother and father who arealive are the preferential heirs and as such, the third appellant is notentitled to enhanced compensation claimed in this appeal. The secondrespondent/Insurance company has not filed appeal challenging grant ofcompensation to the third appellant/brother in this case and, therefore, weare not called upon to interfere with the grant of compensation by theTribunal to the brother of the deceased.9. Dissatisfied with the amount awarded by the Tribunal, theclaimants in O.P.(MV) No.699 of 1993 filed M.F.A. No.442 of 1997 forenhancement of the compensation. We have already found that the thirdappellant who is the third petitioner in the Original Petition is not entitledto claim enhanced compensation in this appeal since he is not a legal heir. MFA NOS.442/97 & CON. CASES.12Therefore the appeal filed at his instance is not maintainable. We shall,therefore, consider the claim of appellants 1 and 2 in this appeal forenhanced compensation.10. Learned counsel appearing for the appellants contended beforeus that the Tribunal went wrong in fixing the monthly income of deceasedMonisha at Rs.10,000/-. The deceased was aged 21 at the time of theaccident. The first claimant, father of the deceased was aged 52 and thesecond claimant, mother was aged 46 at the time of the accident. Thedeceased was a cine artist and a famous dancer during the relevant time. Ithas come out in evidence that she was a dancer of good reputation evenduring her earlier days and that she used to earn sufficient income fromthat source. Further, as a famous dancer she used to get programmes allover India and abroad. Evidence would show that the deceased hadperformed dance programmes in the U.S.A. and the Gulf countries onseveral occasions. According to the claimants, the deceased used to earnbetween Rs.1,50,000/- and Rs.3,00,000/- for two weeks danceprogrammes abroad and for the dance programmes in Kerala and otherStates she used to get Rs.10,000/- for each programme and that she usedto get a minimum of 30 dance programmes a year in India. Another sourceof income of the deceased is the remuneration that she used to get as an MFA NOS.442/97 & CON. CASES.13actress. The deceased had acted as heroine in many Malayalam films andin other regional languages. At the age of 14, the deceased got theNational award for her first film “Nakhakshathangal”. It is the case of thepetitioners that no other actress in India had won the National award atsuch a young age. By the time she was 21 she had acted in more than 25films and that the remuneration that she received from acting was betweenRs.50,000/- to Rs.1,00,000/- excluding all expenses. Besides her rolesin the films, the deceased was an active participant as an actress intelevision programmes and she used to earn from the said source also.The deceased had also secured many merit certificates in dance and musicas a student. Her proficiency in dancing, music and other arts are provedby Exts.A8 to A18 merit certificates. Exts.A19, A20, A33, A34, A35,A36, A37, A43, A46, A47, A48, A50, A51, A58, A67 and A73 are someof the brochures which show the programmes undertaken by the deceased.A number of invitation letters also have been produced evidencing herbusy engagements in dance programmes both in India and abroad.Exts.A21 to A32 and Exts.A38 to A42, A44, A45 and A49 are some of theinvitation letters. Ext.A52 is a letter sent to the deceased stating thatRs.3,00,000/- has been paid for the cultural shows held in the Gulfcountries from 1.11.1992 to 20.11.1992. Ext.A53 would show that shewas the award winner as actress of the 34th National Film Festival, 1987. MFA NOS.442/97 & CON. CASES.14The income of deceased Monisha for eight months during 1992-1993 isshown as Rs.1,02,120/-. Ext.A54 is the acknowledgement issued by theIncome Tax Department. Ext.A55 is a certificate issued by PW.2 whowas handing the accounts of the deceased stating that during 1992-93,deceased Monisha was having a total income of Rs.4,02,120/-. PW.2 hasspoken in support of Ext.A55. According to him no income tax need bepaid for the remuneration that the deceased received for conductingprogrammes outside India. He also testified that during the said perioddeceased Monisha got Rs.3,00,000/- towards remuneration for theprogrammes performed by her in the Gulf countries. Thus, an amount ofRs.one crore was claimed as compensation towards loss on account of thedeath of deceased Monisha , but the claim was limited to Rs.60,00,000/-for the purpose of court fee.11. The Tribunal had assessed the monthly income of the deceasedas Rs.10,000/- and fixed the contribution at Rs.7000/- after deducting asum of Rs.3000/- towards personal expenses. The annual dependencywas thus calculated at Rs.84,000/- and a multiplier of 11 was applied.Accordingly, the Tribunal found that the claimants are entitled to anamount of Rs.9,24,000/- towards compensation for loss on account of thedeath of Monisha. MFA NOS.442/97 & CON. CASES.1512. Considering the fact that deceased Monisha was a reputed filmactress and a classical dancer during the relevant time undertaking variousdance programmes all over India and abroad, we are of the view that themonthly income assessed by the Tribunal is grossly inadequate. Ext.A54shows that her income during the relevant time for eight months wasRs.1,02,120/-. Going by that calculation, the income for 12 monthswould come to Rs.1,53,180/-. Going by the evidence of PW.1, deceasedMonisha used to get an average income of Rs.3,00,000/- for her danceprogrammes abroad. The evidence of PW.1 would also show that thedeceased was getting Rs.10,000/- for each dance programme in Kerala andother States and she was having 30 programmes per year. Besides this, itis also testified that the remuneration of the deceased for acting in thefilms varied from Rs.50,000/- to Rs.1,00,000/- and that during the year ofher death she had acted in five films. The evidence of PW.1 regarding thesource of income of the deceased has not been challenged by therespondents. On a moderate estimate, we find that a minimum ofRs.1,00,000/- can be taken as the annual income of the deceased from herprogrammes abroad which were not accounted in her income tax returns.We thus fix the the total annual income of deceased Monisha as Rs.Rs.2,53,180/- rounded as Rs.2,52,000/- Thus Rs.21,000/- is fixed as the MFA NOS.442/97 & CON. CASES.16monthly income of the deceased. Rs.14,000/- is taken as the monthlycontribution after deducting Rs.7000/- towards personal expenses. Theannual dependency would come to Rs.1,68,000/-. 13. Learned counsel appearing for the appellants contended that themultiplier of 11 adopted by the Tribunal is too low considering the age ofthe deceased who was only 21 at the time of her death. Citing thedecisions reported in General Manager, Kerala State Road TransportCorporation v. Susamma Thomas, 1994 ACJ 1, U.P. State RoadTransport Corporation v. Trilok Chandra, 1996 (2) K.L.T. 218 (SC),Smt. Supe Dei and Others v. M/s. National Insurance Company Ltd.and another, JT 2002 (Supp.) 451 (SC) Jyothi Kaul v. State of M.P.(2006) 6 SCC 306, United India Insurance Company Ltd. PatriciaJean Mahajan, JT 2002 (5) SCC 74, New India Assurance CompanyLtd. v. Charlie, 2005(3) K.L.T. 227 (SC), U.P. State Road TransportCorporation v. Krishna Bala, 2006 (3) K.L.T. SN. 107(SC) and NewIndia Assurance Co. v. Kalpana and others (2007) 2 SCC (Cri.) 941,counsel contended that considering the age of the deceased and the age ofthe claimants and taking into account the II schedule of the M.V. Act, 16is the appropriate multiplier to be adopted. The age of claimants 1 and 2 atthe time of the accident was 52 and 46 respectively. For fixing the MFA NOS.442/97 & CON. CASES.17multiplier, several factors have to be taken note of. The deceased wasunmarried. She might have got married in future in which case a majorportion of her income would have been directed towards her own familyother than her parents. The establishment of the parents who had theirseparate earnings being employed and educated also has relevance. Thepossibility of reduction in contribution once a person gets married also isa reality. Compensation is relatable to the loss of contribution of thepecuniary benefits. Thus the multiplier to be adopted would depend onvarious circumstances. Age of the deceased, age of the dependents, lifeexpectancy etc. are some of the factors relevant for consideration. Futureprospects in the profession also have to be taken into consideration. Thedeceased at the time of her death was a cine artist doing leading roles inthe films in which she had acted. Opportunities for doing leading rolessuch as the role of heroine depends on various factors. Whether thedeceased can continue to act in such roles and when she would bereplaced by other actresses are matters of uncertainty. Unlike otherprofessions, a cine artist may not continue in the same degree in the yearsto come. At the same time, the fact that the deceased was a reputed classicdancer and that she could continue her profession as a classic dancerfor many years also have to be born in mind. Since the profession whichthe deceased had chosen is a risky one, risk involved in the profession also MFA NOS.442/97 & CON. CASES.18has to be taken into consideration.14. The Tribunal had taken into consideration variousimponderables in fixing the multiplier. It may not be correct to relatemultiplier with the number of years one may be able to work in thisparticular field. The Tribunal adopted 11 as the multiplier. Taking intoaccount the various factors relevant for consideration and following theprinciples laid down in the decisions reported in Jyothi Kaul v. State ofM.P. (2002) 6 SCC 306 and Municipal Corpn. of Greater Bombay v.Laxman Iyer (2003)8 SCC 731, we are of the view that the multiplier of6 is just, proper and reasonable. Since no appeal has been filed by theaffected parties challenging the multiplier of 11 adopted by the Tribunal,we cannot interfere with the adoption of the said multiplier. For thepurpose of granting additional compensation in this appeal, we fix 6 as themultiplier. As stated earlier, taking the monthly income of the deceasedas Rs.14,000/-, the annual dependency would come to Rs.1,68,000/-. Theannual dependency calculated by the Tribunal is Rs.84,000/-. For thepurpose of this appeal, we have worked out the annual dependency at Rs.1,68,000/-. After deducting Rs.84,000/- already awarded by the Tribunal,the balance amount would come to Rs.84,000/-. By adopting 6 as themultiplier, the total amount would come to Rs.5,04,000/-. We award MFA NOS.442/97 & CON. CASES.19Rs.5,04,000/- as enhanced compensation to appellants 1 and 2 in thisappeal towards loss on account of the death of deceased Monisha. TheTribunal awarded Rs.9,49,000/- (Rs.9,24,000/- + Rs.25,000/- under otherheads). The said amount was apportioned among the petitioners.Rs.3,00,000/- was awarded to the first petitioner, Rs.5,00,000/- to thesecond petitioner and Rs.1,49,000/- to the third petitioner. Being thelegal heirs of deceased Monisha who are entitled to inherit the estate of thedeceased equally, we are of the view that the first and second appellantsare entitled to share equally the enhanced compensation of Rs.5,04,000/-awarded by this Court.15. M.F.A. No.353 of 1997: This appeal arises from O.P.(MV)No.700 of 1993 filed by the mother of the deceased claiming enhancedcompensation for the injuries sustained by her in the accident. Thepetitioner was aged 46 years at the time of the accident. She was a cineartist, a dancer and a dance teacher. As PW.1, she testified her monthlyincome as Rs.5000/-. She sustained serious injuries in the accident as canbe seen from Ext.A50 wound certificate. PW.1 testified that she suffered alot because of the injuries and is still suffering. On the date of theaccident, she was taken to the Medical Trust Hospital, Ernakulam andconsidering the seriousness of the injuries, she was removed to Lake Side MFA NOS.442/97 & CON. CASES.20Medical Centre and Hospital,Bangalore. Ext.A16 is the dischargesummary issued from the Medical Trust Hospital, Ernakulam and Ext.A62is the discharge summary issued from Lake Side Medical Centre andHospital, Bangalore. Ext.A61 is the disability certificate issued by PW.4.Permanent disability has been estimated at 30%. According to PW.4, thedisability is permanent and there is only a remote chance of recovery. Thepetitioner was also advised to wear LS belt during day time for indefiniteperiod. The petitioner was running a dance class. She is a dance teacherby profession and had also acted in films. Exts.A66, A67, A68, A69, A71and A72 would reveal the above said facts. In this appeal, theappellant/claimant challenges the inadequacy of the compensationawarded by the Tribunal. Though she pleaded and testified that hermonthly income was Rs.5000/-, the Tribunal fixed Rs.3000/- as themonthly income. No reasons are stated for reducing the amount toRs.3000/-. The fact that the appellant is a dancer by profession and thatshe was running a dancing school is not disputed. Therefore, Rs.5000/-claimed by her as the monthly income is reasonable. Taking Rs.5000/- asthe monthly income, for 30% disability, the amount of compensation willcome to approximately Rs.1500/- per month. The annual loss will beRs.18,000/- and applying 11 as the multiplier, total compensation willcome to Rs.1,98,000/-. The Tribunal granted Rs.1,18,800/- as MFA NOS.442/97 & CON. CASES.21compensation towards permanent disability. We, therefore, award anadditional amount of Rs.79,200/- under that head. The appellant isentitled to an additional compensation of Rs.79,200/- in addition toRs.2,42,500/- awarded by the Tribunal.16. M.F.A.Nos.398 and 774 of 1997: These two appeals are filedby the third respondent in O.P.(MV) Nos.699 and 700 of 1993 challengingtheir liability to pay 20% of the compensation fixed by the Tribunal. Thethird respondent is the Managing Director of the K.S.R.T.C. Learnedcounsel appearing for the appellants/claimants in M.F.A. Nos.442 of1997and 353 of 1997 contended before us that the appellant in M.F.A.No.398 of 1997 and 774 of 1997 failed to deposit the stipulated amountunder Section 173 of the M.V. Act and, therefore, the said appeals are notmaintainable. Section 173 of the M.V. Act mandates that no appeal by aperson who is required to pay any amount in terms of an award shall beentertained by the High Court unless he has deposited Rs.25,000/- or 50%of the amount so awarded, whichever is less, in the manner directed by theHigh Court. Evidently, no amount as prescribed in the section has beendeposited by the appellants till this date. The appeals are of the year 1997.Learned counsel for the claimants brought to our notice the Benchdecision of this Court reported in Baby v. Shyni, 2000(1)K.L.T.718 MFA NOS.442/97 & CON. CASES.22wherein this Court had held that once the legislature in its wisdom hasthought it fit to impose a condition for entertaining an appeal, this Courtmay not be justified in sitting in judgment over the legislative wisdom andpolicy in regard to filing of appeals - however hard the case may be -more so, when it is remembered that right of appeal is not a vested right ora constitutional right, but a creature of the statute. This Court alsoobserved that there is no inherent right of appeal from the original forumunless such a right is conferred by the statute which creates the forum andthat the legislature while creating a right of appeal can also imposeconditions for the entertainment of the appeal. 17. Going by Section 173 of the M.V. Act, in order to maintain anappeal, the appellant who is directed to pay compensation has to make adeposit of Rs.25,000/- or 50% of the amount awarded, whichever is less.No such deposit has been made by the appellant in M.F.A. Nos.398 of1997 and 774 of 1997. The appellant in the above appeals has now filedI.A.No.2595 of 2007 and 2615 of 2007 respectively seeking leave of thisCourt to remit the amount required towards pre-appeal deposit as providedunder Section 173(2) of the M.V.Act. In the affidavits filed in support ofthe respective applications, it is stated that the Registry of this Court didnot point out any such filing defect at the time of admission and that if the MFA NOS.442/97 & CON. CASES.23Registry had insisted, the appellant would have remitted the amountrequired under the provision. It is further stated in the affidavits that sincethe appeals have been admitted and are pending since 1997, dismissal ofthe appeals on the above ground will cause serious prejudice and loss tothe appellant/Corporation. 18. Section 173 of the M.V. Act does not give any power to thecourt to dispense with the deposit mentioned in Section 173(1). That is amandatory requirement to entertain an appeal. Merely because the appealshave been admitted, it cannot be taken that this Court had entertained theappeals and that the same shall be held maintainable. When an infirmityin the appeal is pointed out, necessarily this Court can reject the appeal.The Bench decision cited supra is followed by another Single Benchdecision reported in Kesavan Nambeesan v. Madhavan, 2003(2) K.L.T.785. In the light of the aforesaid decisions, M.F.A. Nos.398 of 1997 and774 of 1997 are not liable to be entertained and accordingly they aredismissed.19. M.F.A. No.562 of 1997: This appeal is filed by the K.S.R.T.C.against the award in O.P.(MV) No.1104 of 1993. The claim is forRs.41.180.85. According to the petitioner, the amount claimed in the MFA NOS.442/97 & CON. CASES.24Original Petition was spent for repairing the bus. Ext.A6 is the job cardproduced in support of the claim. The Tribunal accepted the evidenceadduced by the petitioner in support of the claim and awarded Rs.36,180/-as against the total claim of Rs.41,180.85. The Tribunal reduced Rs.5000/-from the total claim stating that Rs.11,377.35 claimed under the head'general overhead' is very high. The appeal was directed against the saidaward mainly contending that the reduction of Rs.5000/- from the totalclaim is illegal and unjustifiable and that there was no contra evidenceadduced by the respondents to dispute the legal claim made by theappellant. The Tribunal by the impugned award allowed the claim bypermitting the petitioner to realise 80% of the award amount fromrespondents 1 and 2 with 12 % interest per annum from the date of petitiontill realisation. The reasons stated by the Tribunal for reducing Rs.5000/-from the total claim are not appealing to us. Pws.1 and 2 were examinedand Exts.A1 to A6 were produced by the appellant in support of the claim.Ext.A5 is the photograph showing the accident and Ext.A6 is the job cardissued by PW.1 to prove the actual amount spent by the petitioner forrepair of the K.S.R.T.C. bus. It is seen that no contra evidence wasadduced by any of the respondents. Therefore, the reasons stated by theTribunal for reducing Rs.5000/- from the total claim appears to be on awrong understanding of the claim and the evidence adduced in support of MFA NOS.442/97 & CON. CASES.25the claim. We are of the view that the appellant/K.S.R.T.C. is entitled toRs.41,180/- for the damage caused to the bus and thus the award ismodified to that extent. In all other respects, the award passed by theTribunal in O.P.(MV) No.1104 of 1993 stands confirmed. 20. Appellants 1 and 2 in M.F.A. No.442 of 1997 are allowed torealise from respondents 1 and 2 to the extent of 80% of the enhancedamount of Rs.5,04,000/- with 8% interest from the date of petition tillrealisation. The balance 20% of Rs.5,04,000/- shall be realised from thethird respondent with 8% interest from the date of petition till realisation.Appellants 1 and 2 shall share the said amount in equal shares.Respondents 2 and 3 are directed to pay 80% and 20% of the enhancedamount respectively within one month from today. 21. The appellant/claimant in M.F.A. No.353 of 1997 is allowed torealise from respondents 1 and 2 to the extent of 80% of the enhancedamount of Rs.79,200/- with 8% interest from the date of petition tillrealisation. The balance 20% of Rs.79,200/- shall be realised from thethird respondent with 8% interest from the date of petition till realisation.Respondents 2 and 3 are directed to pay 80% and 20% of the enhancedamount respectively to the appellant within one month from today. MFA NOS.442/97 & CON. CASES.2622. The appellant in M.F.A. No.562 of 1997 is allowed to realisefrom respondents 1 and 2 80% of Rs.41,180/- less the amount awarded bythe Tribunal with 8% interest per annum from the date of petition tillrealisation. The second respondent shall pay 80% of the enhanced amountwithin one month from today. In the result, M.F.A. Nos.442 and 353 of 1997 are partly allowed,M.F.A. No.562 of 1997 is allowed and M.F.A. Nos.398 and 774 of 1997are dismissed. There will be no order as to costs. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE)sp/ MFA NOS.442/97 & CON. CASES.27C.R.KURAIN JOSEPH & HAURN-UL-RASHID, J.JM.F.A.NOS.442, 353, 398,774 & 562/1997JUDGMENT15th FEBRUARY, 2008.