Shardaben Shambhuram Devmurari Vs. Mohanbhai Keshavdas Kelaiya and anr. - Court Judgment

H.K. Rathod, J.

1. Heard learned Advocate Mr. Hiren Modi for the appellants original-claimants and learned Advocate Mr. H. M. Thakker for respondent No. 2-Insurance Company.

2. This appeal is filed by the appellant-Shardaben Shambhuram Devmurari, original claimant for enhacement of award while challenging the award passed by the Motor Accident Claims Tribunal, Amreli in M.A.C.P. No. 133 of 2004 dated 4th March, 2008 wherein the Claims Tribunal has awarded compensation of Rs. 3,00,000/- to the claimants with interest at the rate of 9 percent per annum.

3. Learned Advocate Mr. Modi for the appellant submitted that the claim petition was filed by claimant for Rs. 3,00,000/- under different head, but Claims Tribunal has calculated amount of compensation which comes to Rs. 3,63,000/- but that was not awarded because the claimant has claimed Rs. 3,00,000/- only, therefore, same amount was awarded though Claims Tribunal calculated amount of Rs. 3,63,000/- for the claimants which amounts to basic error on the part of Claims Tribunal as there is no restriction in the Motor Vehicles Act, 1988 to award compensation more than that claimed by the claimant. In support of his contention, he placed reliance on the decision of this Court reported in 2005 (3) GLH 651 in case of Manohar Madhukar Tambe v. Bhagubhai Liladhar and Ors. and submitted that Claims Tribunal has committed gross error in not awarding the total amount of Rs. 3,63,000/- only on the ground that claimant has made claim of Rs. 3,00,000/- only.

4. On the other hand, learned Advocate Mr. H.M. Thakker for respondent Insurance Company has vehemently opposed the appeal filed by claimant and submitted that as claim was not enhanced by separate application before Claims Tribunal by claimant under provisions of Order 6, Rule 17, the Claims Tribunal is justified in not awarding amount as not claimed by the claimant. He relied upon Rule 229 of the Gujarat Motor Vehicles Rules and submitted that the Code of Civil Procedure is applicable to the proceedings before Claims Tribunal. He relied upon decision of Apex Court in case of Nagappa v. Gurdayal Singh and Ors. 2002 AIR SCW 5348, Paras 5, 11, 16 and 21 in particular and submitted that in case of Nagappa also, claim petition was amended by claimant and on that basis, case was considered and accordingly case was examined by Apex Court, and therefore, decision relied upon by claimant is not applicable to the facts of this case because in this case, claim was not enhanced by claimant while giving application during the pendency of claim petition, and therefore, according to him, Claims Tribunal has rightly restricted the award and in doing so, no error has been committed by Claims Tribunal, and therefore, no interference of this Court is required. He also vehemently opposed on merits that there was no sufficient evidence produced by claimant to establish income of deceased. No sufficient evidence was on record and yet Claims Tribunal has assessed compensation while assessing income and in doing so, Claims Tribunal has committed gross error in deciding compensation of Rs. 3,63,000/-. He submitted that the amount of Rs. 3,63,000/- cannot be awarded being enhancement to claim of the claimant. Except that, no other submission is made by the learned Advocate Mr. Thakker before this Court and no other decision has been cited by him in support of the submissions made by him before this Court.

5. I have considered the submissions made by both the learned Advocates for the parties. I have also perused the decision relied upon by both the learned Advocates. M.A.C.P. No. 133 of 2004 was filed by present appellant. Two claim cases were arising out of common motor vehicular accident occurred on 9-12-2003 at about 6-30 p.m., and therefore, two Claim Case Nos. 133 and 134 of 2004 were consolidated and evidence was recorded in M.A.C. Petition No. 133 of 2004 by the Claims Tribunal. At the time of accident, deceased Shambhuram Asharam Devmurari, of M.A.C. Petition No. 133 of 2004 and Vallabhbhai Asharam Devmurari were travelling in Tractor No. GJ 14 D-374 sitting on the bags of groundnut and proceeding towards Amreli market yard to sale said groundnut, at that time, the driver of the said tractor drove tractor in rash and negligent manner in an excessive speed endangering human life. As a result of which deceased Shambhuram and injured Vallabhbhai fall down from tractor due to which Shambhuram of M.A.C.P. No. 133 of 2004 received serious head injury and during the course of treatment at Amreli Civil Hospital, he succumbed to the injuries and Vallabhbhai injured claimant of M.A.C.P. No. 134 of 2004 had received fracture of spine.

6. Before the Claims Tribunal, reply was filed by present respondent insurance company vide Exh. 11 denying averments made by claimant in claim petition and denied the averments as regards age and income of the injured and deceased. Thereafter, Claims Tribunal framed issues vide Exh. 18 and decide the matter. Before the Claims Tribunal, on behalf of claimant, Shardaben Shambhuram Devmurari was examined vide Exh. 23 and in her oral evidence, it was deposed by her that at the time of accident, deceased was aged about 55 years and was earning Rs. 60,000/- per year by doing agricultural work but the claimant has not produced any documentary evidence regarding date of birth of deceased but post mortem report was suggesting age about 55 years, therefore, Claims Tribunal came to conclusion that the age of the deceased was 55 years. So far as income of the deceased Shambhuram is concerned, extract of Village Form No. 7/12 and 8A were produced by claimant in respect of the agricultural lands possessed by the deceased at Exhs. 28 and 29 respectively but not produced any documentary evidence regarding agricultural income or income from diamond-cutting, and therefore, in absence of the documentary evidence regarding income, considering age of deceased, Tribunal assessed income of Rs. 2,500/- and considering Second Schedule read with Section 163A of the Act, applied multiplier of 11, and accordingly, future prospects were taken into account and held that dependency comes to Rs. 3,30,000/- and Rs. 10,000/- towards expectancy of life, Rs. 10,000/- towards consortium and Rs. 10,000/- towards pain and mental agony by the claimant and Rs. 3,000/- towards funeral charges and thus, claimant is entitled to total compensation of Rs. 3,63,000/-, but ultimately awarded only Rs. 3,00,000/- only on the ground that claimant has claimed only Rs. 3,00,000/-, and therefore, not entitled to the amount more than that. Relevant discussion made by the Claims Tribunal in Para 11 of the Award is reproduced as under:

11. So far as the quantum is concerned, the claimant has claimed Rs. 3,00,000/- under different heads. The claimant Shardaben Shambhuram Devmurari being wife of the deceased Shambhuram Asharam Devmurari has stated in her oral evidence by way of affidavit at Exh. 23 that at the time of accident the deceased was aged about 55 years and was earning Rs. 60,000/- per year by doing agricultural work.

The claimant has not produced any documentary evidence regarding date of birth of deceased Shambhuram Asharam Devmurari, but by going through post mortem report Exh. 25, the age of deceased Shambhuram has been mentioned about 55 years, hence for the purpose of this claim petition, I consecutively take the age of deceased Shambhuram as 55 years.

So far income of the deceased Shamburam is concerned, the claimants have produced extract of Village Form Nos. 7/12 and 8A in respect of the agricultural land possessed by the deceased Shambhuram at Exhs. 28 and 29 respectively, but has not produced any documentary proof regarding agricultural income or income from diamond-cutting. Hence, in absence of any documentary proof regarding income, taking into consideration the age of the injured claimant and present rate of inflation as well as agricultural land in the name of deceased Shambhuram it can very well be presumed that the deceased might be earning Rs. 2,500/- per month and so it would be just and proper to assess income of Rs. 2,500/- per month.

Taking Second Schedule under Section 163A of M. V. Act, as quite line, I take multiplier of 11 for deciding dependency benefit.

Thus, taking the income of Rs. 2,500/- per month and applying the principle laid down in the case of Manohar Madhukar Tambe v. Bhatubhai Liladhar and Ors. reported in 2005 (3) GLH 651, the loss of dependency would be Rs. 2,500/- x 3 = Rs. 7,500/- x = Rs. 3,750/- x 2/3 = Rs. 2,500 x 12 = Rs. 30,000/- Rs. 3,30,000/- under the head of dependency benefit.

To this, we can add Rs. 10,000/- towards loss of expectancy of life, Rs. 10,000/- towards consortium, Rs. 10,000/- towards mental agony suffered by the claimant as after one day of accident, the deceased died and Rs. 3,000/- towards funeral charges.

Thus, the petitioners of M.A.C. Petition No. 133 of 2004 are entitled to get compensation as under:

Rs. 3,30,000/- towards loss of dependencyRs. 10,000/- towards loss of estateRs. 10,000/- towards consortiumRs. 10,000/- towards mental agonyRs. 3,000/- towards funeral expenses______________________Rs. 3,63,000/- TotalThus, in all, the applicant of M.A.C. Petition No. 133 of 2004 is entitled to sum of Rs. 3,63,000/- but as the claimant has restricted her claim to Rs. 3,00,000/-, the claimant is entitled to sum of Rs. 3,00,000/- from the opponent Nos. 1 and 2 who are jointly and severally liable.

7. Considering the aforesaid discussion made by the Claims Tribunal in Para 11 of the award on quantum, I have considered two contentions raised by learned Advocate Mr. Thakker. One is that without amending plaint or claim petition, Tribunal cannot award compensation for more than what was claimed by the claimant. Next is that there was no documentary evidence on record for receiving income from the agricultural field. First, I will deal with the contention regarding income, raised by the learned Advocate Mr. Thakker. The claimant in her oral evidence at Exh. 23, deposed that her husband was doing agricultural work. There was no rebuttal evidence produced by the Insurance Company before the claims Tribunal that deceased was not doing agricultural work. It is also necessary to note important part that on the date of accident on 9-12-2003, deceased Shambhuram Asharam Devmurari injured Vallabhbhai Asharam Devmurari were going to sell groundnuts at Amreli market yard and at that time, accident occurred. From the evidence on record itself, it is appearing that both were sitting on the bags of groundnut which proves product from agricultural field received by deceased and injured which both were going to sell it at market yard at Amreli. This evidence itself is enough to establish income of the deceased because in absence of agricultural field, there may not be groundnut available to the deceased. Agricultural field belongs to deceased as per documentary evidence on record Exhs. 28 and 29. This fact is not disputed by Insurance Company and no contrary evidence is produced by the Insurance Company. A person who is possessing agricultural land naturally he must have received income from such agricultural field and groundnuts being product received from agricultural field, both were going to sell the groundnut at Amreli market yard and while they were going with such agricultural product in the tractor, accident occurred. So, products received from agricultural field was proved and for selling them, they were going to Amreli market yard, therefore, on the basis of this evidence itself and looking to the year of accident 2003, farmer having this much land as per Exhs. 28 and 29, naturally he must get at least this much amount of Rs. 2,500/- by taking crops 2 to 3 times in a year, and it cannot be considered to be unreasonable assessment made by Claims Tribunal, and therefore, according to my opinion, the Claims Tribunal has rightly assessed the income of the deceased at Rs. 2,500/- per month who was having agricultural land in his possession as per Exhs. 28 and 29 and products of groundnut was received by them and they were going to sell it in the market yard at Amreli which is a direct evidence of income to be received from groundnuts by the deceased, otherwise, there was no purpose of selling groundnuts by the deceased in absence of products from agricultural field, therefore, assessment is very much reasonable, just and fair and rational, and therefore, contention raised by the learned Advocate Mr. Thakker in that regard cannot be accepted, and therefore, same is rejected.

8. While considering the next contention raised by the learned Advocate Mr. Thakker that without amending claim petition and without enhancing claim by the claimant, amount more than the claim made by the claimant cannot be awarded by the Claims Tribunal, I have considered the decision of the Division Bench of this Court in case of Manohar Madhukar Tambe v. Bhagubhai Liladhar and Ors. reported in 2005 (3) GLH 651. Paras 8 and 11 of which are quoted as under:

8. Next question pertains to assessment of compensation. Minor Manohar Madhukar Tambe was 15 year old at the time of accident. He suffered fracture on right thigh and on the knee, apart from other parts of the body. He was admitted in Bilimora Mangusi Hospital, thereafter, removed to Panchal Orthopedic Hospital, where he stayed for 2'/> months. He was operated twice and remained in the hospital for a long time and had plaster for six months. Because of injuries, he remained in bed from 22-3-1985 to 19-10-1985. He was examined by Dr. Panchal, who states that patient had compound fracture of femur on right side. He claims compensation for pain, shock and suffering, medical expenses, loss of education, transportation and other connected charges including attendance, etc. He has been awarded Rs. 15,000/- for pain, shock and suffering, Rs. 12,000/- for medical expenses, attendance and transportation, Rs. 12,600/- for disability. Through this appeal, enhancement of Rs. 10,000/- is claimed. Shri Amrish Pandya learned Counsel for the claimants submits that looking to the nature of injuries and other loss suffered by him, claimant is entitled to just compensation, i.e., more than what has been claimed. He claimed Rs. 50,000/- before the Claims Tribunal and confined the appeal to Rs. 10,000/-, since due to poverty, he could not pay Court fee. Learned Counsel for the claimants submits that evidence for enhancement is available, therefore, without amendment and evidence, enhaced compensation can be awarded. Reliance is placed on Apex Court decision in Nagappa v. Gurdayal Singh and Ors. 2002 AIR SCW 5348. There is substance in the contention advanced by the learned Counsel. On perusal of injuries suffered by the claimant, it is crystal clear that they are of serious nature. Claimant remained in bed under plaster for 9 months and subjected to two operations. One of the injuries found by Dr. Panchal is compound fracture of femur on right side. Claimant must have undergone great pain, shock and suffering, therefore, award of Rs. 15,000/- seems to be unjust, consequently, it is enhanced to Rs. 50,000/-.

11. Next comes the claim for permanent partial disability. Nature of injuries has been discussed in the preceding part of this judgment. Further, it is added that due to disability suffered by the claimant, his leg was shortened by 2' and he limps while walking. He cannot walk properly, he cannot run, he cannot sit cross-legged, nor squat or do cycling. There is, therefore, allround difficulty suffered by the claimant due to this disability. Of course, looking to the factual, physical disability, permanent partial disability of right lower limb is fixed by doctor at 1/6th of 45%, i.e., 8% of the entire body. Division Bench of this Court said in State of Gujarat v. Somabhai Dhurabhai Sindhava and Ors. 1993 (2) GLR 1043 that for computing the future economic loss of an injured person, the Court has to apply its mind not only to the abstract percentage of loss of earning capacity, but also to the actual economic loss sustained or likely to be sustained by the injured person. Merely computing the economic loss on the basis of the Medical Certificate regarding physical disability will amount to turning a blind eye to the reality of actual economic loss. The claimant is going to suffer with physical disability throughout his life, therefore, he will have the disadvantage in every sphere of activity, earning or non-earning. Accordingly, it is just and proper to fix the disability at 25%. The age of claimant at the time of accident was 17 and applying multiplier of 16 on the income of Rs. 15,000/- of a non-earning member, the compensation is worked out thus: annual income Rs. 15,000/- monthly income Rs. 1,250 x 25% = Rs. 312-25 x 12 x 17 : Rs. 63,750/-. Therefore, the claimant is entitled to compensation of Rs. 50,000/- (pain, shock and suffering), Rs. 20,000/- (Medicines and other charges), Rs. 63,750/- (permanent partial disability), Rs. 10,000/- (loss of studies), which comes to a total compensation of Rs. 1,43,750/-, although the appellant claims Rs. 50,000/-.

Consequently, First Appeal No. 647 of 1989 is allowed. The award stands modified to the aforesaid extent. Claimant is held entitled to total compensation of Rs. 1,43,750/-, which will carry interest at the rate of 12% from the date of application till realisation. Costs of this appeal shall be borne by the parties.

9. In Nagappa v. Gurdayal Singh and Ors. reported in 2002 AIR SCW 5348, relied upon by learned Advocate Mr. Thakker, Apex Court observed as under in Paras 5, 11, 16 and 21:

5. At the time of hearing of this matter, learned Counsel for the appellant has filed an application seeking permission to amend the claim petition and for enhacement of claim to the tune of Rs. 5 lacs as compensation. Before the trial Court, the claim was only for a sum of Rs. One lac.

11. Secondly, under Section 169, the Claims Tribunal in holding any inquiry under Section 168 is required to follow the rules that are made in this behalf and follow such summary procedure as it thinks fit. In the present case, it has been pointed out that Rule 253 of Karnataka Motor Vehicles Rules, 1989 empowers the Claims Tribunal to exercise all or any of the powers vested in a Civil Court under the provisions of Code of Civil Procedure, 1908. Rule 254 inter alia makes specific provision that Order 6, Rule 17, C.P.C. is applicable to such proceedings. In this view of the matter, in an appropriate case, depending upon the facts and the evidence which has been brought on record and in the interest of justice, Court may permit amendment of claim petition so as to award enhanced compensation. Further, for amendment of the pleadings, it is settled law that unless it causes injustice to other side or it is not necessary for the purpose of determining real issue between the parties, Court would grant amendment. It is also to be stated that under the M. V. Act, there is no time-limit prescribed for claiming compensation. Therefore, there is no question of enhanced claim being barred by limitation.

16. From the aforesaid observations it cannot be held that there is a bar for the Claims Tribunal to award the compensation in excess of what is claimed, particularly when the evidence which is brought on record is sufficient to pass such award. In cases where there is no evidence on record, the Court may permit such amendment and allow to raise additional issue and give an opportunity to the parties to produce relevant evidence.

21. For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that Tribunal/Court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/Court is to award 'just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim, there would be change of cause of action. It is also to be stated that as provided under Sub-section (4) to Section 166, even report submitted to the Claims Tribunal under Sub-section (6) of Section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, Court may permit amendment to the claim petition.

Is it permissible under the Act to award compensation by instalments or recurring compensation to meet the future medical expenses of the victim?

10. Considering the peculiar facts of this case and aforesaid decisions, such too much technical stand of the Insurance Company to deny just compensation available under the law to the claimant cannot be accepted by this Court simply on the ground that there is no restriction in the provisions made in the M. V. Act that the Claims Tribunal cannot grant the amount of compensation beyond the amount claimed by the claimant in his claim petition. Claims Tribunal may make an award subject to the provisions of Section 168 to determine the amount of compensation which appears to be just and specify person or persons to whom such compensation shall be paid by the insurer and/or insured or owner or driver, as the case may be. It is legal obligation on the part of Claims Tribunal to see that just and fair compensation is awarded by it to the claimants though the actual amount claimed by the claimant is either lesser or higher than the amount calculated by the Claims Tribunal as just and fair compensation according to law.

11. It is the legal obligation on the part of Claims Tribunal to award just and fair compensation to the claimants for which they are entitled as per law. Claims Tribunal is not restricted by any provisions under the M.V. Act, 1988 and there is no prohibition made in the Statute Book that the Claims Tribunal cannot grant the amount which is beyond the prayer made by the claimants in their claim petition. Purpose and object of the M. V. Act, 1988 is to award reasonable just and fair compensation to the claimants. Actual claim made by the claimants may be less or high than the estimate made by the claims Tribunal as just compensation, but it is the duty of the Claims Tribunal to award just and fair compensation to which claimants are entitled according to law, and therefore, if the claim of the claimant is lesser than that, then the Claims Tribunal cannot deny only on the ground that no claim is made by the claimant. Recently, Apex Court has examined this aspect in case of A.P.S.R.T.C. v. M. Ramadevi and Ors. reported in AIR 2008 SC 1221, it was held by the Apex Court that there is no restriction that Tribunal/Court cannot award compensation exceeding the amount claimed. In the case before the Supreme Court, a claim petition under Section 166 of the M. V. Act, 1988 was filed by the claimants claiming compensation of Rs. 5,00,000/- on account of death of M. Nageshwar Rao in accident on 18-5-1998. The deceased was working as a driver of the A.P.S.R.T.C. Deceased was aged about 38 years and salary was Rs. 4467-50 ps. Corporation had filed objections and ultimately, the Claims Tribunal awarded compensation of Rs. 2,46,000/-, and thereafter, High Court awarded Rs. 3,35,952/-, and thereafter, A.P.S.R.T.C. approached the Apex Court. Apex Court considered this aspect in peculiar facts of the case wherein Tribunal had awarded Rs. 2,46,000/- with 12 percent interest. Claimant was satisfied by that award but appeal was preferred by the Corporation in High Court. High Court, in the appeal of the Corporation, enhanced amount of compensation which was not claimed or demanded by the claimant. That order of the High Court was challenged by the Corporation before the Apex Court. That aspect was examined by the Apex Court in Paras 8 and 10 of the aforesaid decision, and ultimately, Apex Court awarded Rs. 2,60,000/- with interest thereon at the rate of 9%, meaning thereby, award of compensation made by the Claims Tribunal has been enhanced without appeal of claimant, and ultimately, it was reduced to some extent but ultimate result is that the Supreme Court has, to some extent, confirmed enhancement though there was no appeal of the claimant for enhancement. Relevant Paras 8 and 10 of said decision, are therefore, reproduced as under:

8. Learned Counsel for the respondents on the other hand submitted that there is no embargo on the Tribunal or the High Court awarding compensation exceeding the amount claimed. It was also submitted that the interest was reduced to 9% from 12% as fixed by the Tribunal. It was, therefore, submitted that there was no infirmity in the High Court's order.

10. The other question that remains to be adjudicated is whether the income has been rightly adopted by the Tribunal and the High Court was correct and whether the correct multiplier was adopted.

12. Therefore, question is that where the claimants are entitled for compensation which can be considered to be reasonable or not, and if the Claims Tribunal is of the view that the amount calculated by it is just and reasonable, then, Tribunal must have to pass award of that amount irrespective of the fact whether the claimant has claimed for it or not. Recently, in case of Oriental Insurance Co. Ltd. v. Jashuben and Ors. reported in 2008 (2) SCALE 474 : 2008 (2) GLR 1705 (SC) wherein the decision of the Division Bench has been reversed by Apex Court, this aspect has been examined by the Apex Court and the Apex Court has considered that the amount of compensation payable to the heir and legal representative of the deceased victim of accident must be a fair and reasonable one. Estimate of the amount of loss of dependency may be arrived at by adopting various methods, application of structural formula being one of them. It was also held that the amount of compensation should be determined having regard to the pecuniary loss caused to the dependents by reason of the death of victim. It was also held that such a formula has also been provided for in Schedule II appended to the M. V. Act, 1988 and while determining the amount of compensation, certain well-known principles must be kept in mind. Relevant observations made by the Apex Court in Para 18 of said decision are reproduced as under:

18. We may also notice that in T. N. State Transport Corporation Ltd. v. S. Rajapriya and Ors. 2005 (6) SCC 236, this Court held:

8. The assessment of damages to compensate the dependants is beset with difficulties because from the nature of things, it has to take into account many imponderables e.g. the life expectancy of the deceased and the dependants, the amount that the deceased would have earned during the remainder of his life, the amount that he would have contributed to the dependants during that period, the chances that the deceased may not have lived or the dependants may not live up to the estimated remaining period of their life expectancy, the chances that the deceased might have got better employment or income or might have lost his employment or income together.

9. The manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income, the deceased was accustomed to spend for the benefit of the dependants. Then that should be capitalised by multiplying it by a figure representing the proper number of years' purchase.

10. Much of the calculation necessarily remains in the realm of hypothesis 'and in that region arithmetic is a good servant but a bad master' since there are so often many imponderables. In every case 'it is the overall picture that matters', and the Court must try to assess as best as it can the loss suffered.

13. Therefore, considering the peculiar facts of the case before hand and the aforesaid decisions, according to my opinion, the Claims Tribunal has rightly assessed income of the deceased while keeping in view future prospects of the deceased and has also rightly applied multiplier of 11 and has rightly come to the conclusion that the compensation of Rs. 3,63,000/- is payable to the claimants, but therefore, Claims Tribunal is not justified in not granting said amount of Rs. 3,63,000/- to the claimants on the ground that it cannot be granted as the claim made by the claimant is only for Rs. 3,00,000/-.

14. In Sujata (Smt.) v. H. M. Mallappa Naik 2002 (2) ACC 417 (Kant. replying upon the decision in case of Hanumakka (Smt.) v. Bipin Bai, : ILR1998KAR249 , Karnataka High Court has observed that under Section 169, Tribunal has to make an award determining the amount of compensation which appears to it to be just and its power to grant compensation is not restricted to what is actually claimed under Section 166 which makes the claim under Section 166 'unliquidated damages'. Thus, where the Tribunal determined a higher compensation as just compensation than claimed then application for amendment of claim petition is unnecessary as the language of Section 168 is unambiguous. In the case before hand, in M.A.C.P. No. 133 of 2004, claim was not restricted by the claimant but original claim petition was filed claiming compensation of Rs. 3,00,000/- under Section 166 of the M. V. Act, 1988. Claimant can be considered to have restricted his claim only when claimant has averred in the claim petition that he is entitled for this much amount as compensation, but he is restricting his claim to the amount less than that. Claimant can be considered to have restricted his claim to a particular amount when claimant files purshis during the pendency of the claim petition by declaring that he is restricting his claim to a particular amount which is less than the amount claimed by him while filing the claim petition. Question of restricting the claim arise only when claimant made claim of Rs. 5 lacs initially and subsequently during the pendency of claim petition, restricts it to the amount which is lesser than Rs. 5 lacs and in such case, Claims Tribunal may not grant more compensation against the restricted claim but these are not the facts in the case before hand because original claim was for Rs. 3,00,000/-. Just compensation can exceed the amount claimed by the claimant in the claim petition as decided by Delhi High Court in case of Jyoti Gupta v. Ashok Kumar reported in : 91(2001)DLT427 wherein the decision in Ashwani Kumar Mishra v. P. Muniam Babu reported in : [1999]2SCR518 was followed. By Delhi High Court. Claims Tribunal can award compensation in excess of amount claimed in the claim petition. There are no fetters on the powers of the Claims Tribunal who has the expertise in estimating compensation as per the decision of the Patna High Court in case of National Insurance Co. Ltd. v. Satro Devi : 1998(46)BLJR927 . The Claims Tribunal could award just and fair compensation admissible to the claimant even if he restricts his claim in the course of the proceedings against his original claim for a higher amount as per the decision of Karnataka High Court in Raju Adityan v. Oriental Insurance Co. Ltd. . In R.L. Gupta v. Jupiter General Insurance Co. : (1990)1SCC356 , the Supreme Court held that it could not be said that in absence of a specific claim laid in the High Court about low compensation, the question should not be permitted to be mooted in appeal by special leave. Technicality of law should not be permitted to stand in the way and a fair compensation should be paid in respect of death. As per the decision of the Rajasthan High Court in case of Dayali Bai v. State of Rajasthan , the Tribunal can exercise its power to award just and fair compensation in the facts and circumstances of the claims which may be even more than the amount actually claimed by the claimants. It was also held that there is no stipulation in the M. V. Act to restrict award of compensation limited to the claim filed by the claimants.

15. In view of the aforesaid law discussed by this Court and the decisions of various High Courts and the Hon'ble Supreme Court as referred to above, contention of the learned Advocate Mr. Thakker that the Claims Tribunal has no jurisdiction to award the compensation exceeding the amount claimed by the claimant cannot be accepted by this Court while holding that it is the obligation on the part of the claims Tribunal to award just and fair compensation which may exceed the amount claimed by the claimants. While raising such technical contention and adopting a technical stand, it was forgotten by the learned Advocate Mr. Thakker that even this Court is having powers as per Order XLI, Rule 33 of the Code of Civil Procedure as an appellate Court and while exercising such powers under Order 41, Rule 33 of the C.P. Code, this Court can examine the award passed by the Claims Tribunal wherein Tribunal has denied Rs. 63,000/- to the claimant only on the ground that the actual claim made by claimant is for Rs. 3,00,000/- and this Court can examine whether such award is proper or not.

Relevant provisions of Order 41, Rule 33 of C.P. Code are reproduced as under:

The appellate Court shall have to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where have two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees):

(Provided that the appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.)

16. Therefore, considering the provisions of Order 41, Rule 33 of C.P. Code and while considering the matter under Order 41, Rule 33 of C.P. Code, according to my opinion, income of the deceased from agricultural operation is rightly assessed with future prospects and multiplier is also rightly applied by the Claims Tribunal and Tribunal has rightly worked out an amount of Rs. 3,63,000/- as compensation to the claimant, but Tribunal has committed gross error in not awarding the same amount to the claimants by taking hypertechnical stand in the matter, and therefore, according to my opinion, appellants are entitled for total compensation of Rs. 3,63,000/- as just and fair compensation.

17. Learned Advocate Mr. Modi for the claimant has also relied upon the decision of this Court (Coram : Hon'ble Mr. Justice D.H. Waghela, J.) in First Appeal No. 3933 of 2007 with Civil Application No. 10594 of 2007 dated 5-2-2008 in case of United India Insurance Co. Ltd. v. Munniben Wd/o. Ramavtar Jahulal Rajput Nagjibhai and submitted that the same question has been differently examined by this Court. In the said decision, as against the Claims Tribunal awarded Rs. 4,00,000/-, the Claims Tribunal awarded Rs. 4,75,000/- as total compensation. Relevant observations made by this Court in Para 1 of the said decision are reproduced as under:

1. The appellant has, under Section 173 of the Motor Vehicles Act, 1988 ('the Act', for short), challenged the award dated 22-3-2007 of Motor Accident Claims Tribunal, Vadodara in Motor Accident Claim Petition No. 333 of 2000 only to the extent of the liability of Rs. 75,000/- as the Tribunal has awarded total compensation of Rs. 4,75,000/- against the claim of Rs. 4,00,000/-. It was argued by learned Counsel Mr. Palak Thakker, appearing with learned Counsel Mr. Hasmukh Thakker, that the Tribunal ought not to have increased the amount of compensation even beyond the amount claimed in the original petition and ought to have at least insisted upon amendment of the claim petition in view of judgment of the Supreme Court in Nagappa v. Gurdayal Singh and Ors. 2002 AIR SCW 5348. It was, however, pointed out by learned Counsel Mr. Modi, appearing for the original claimant, that not only that judgment in Nagappa (supra) was considered by the Tribunal, but Division Bench of this Court in Manohar Madhukar Tambe v. Bhagubhai Liladhar and Ors. 2005 (3) GLH 651 awarded higher amount of compensation than the amount claimed after referring to and relying upon the Apex Court's decision in Nagappa (supra). Therefore, in short, when there was evidence for enhancement of the amount of compensation, such compensation could be awarded even at the appellate stage, according to the said judgment of this Court. It was also sought to be argued that oral evidence was not sufficient to support the presumption of monthly income of Rs. 2,500/- of the deceased. That argument has to be stated only to be rejected in view of the unshaken depositions of two witnesses to the effect that the deceased was being paid Rs. 100/- per day.

18. In light of the law as aforesaid on the matter at issue, if the facts of the case before hand are considered, then, original claim was for Rs. 3,00,000/-, but looking to the facts which are on record, claimants are entitled for Rs. 3,63,000/- on the basis of the income assessed by the Claims Tribunal at Rs. 2,500/- per month. There was sufficient material before the Claims Tribunal for assessing income as product from agricultural field namely groundnut, they were going to sell in the market yard at Amreli. Thus, income of the deceased is proved by the claimants on the basis of the evidence on record which has not been denied by the Insurance Company and no rebuttal evidence has been produced by the Insurance Company, and therefore, according to my opinion, Claims Tribunal has rightly assessed income of the deceased at Rs. 2,500/- p.m. and on that basis, has rightly come to the conclusion that the claimant is entitled to Rs. 3,63,000/- as compensation, but thereafter, in view of the law as discussed above, according to my opinion, Claims Tribunal has committed cross-error in not awarding total compensation assessed by it and it has committed error in awarding only Rs. 3,00,000/- only on the ground that the claimants claimed Rs. 3,00,000/-, and therefore, Rs. 3,63,000/- cannot be awarded.

18. That view of the Claims Tribunal is contrary to the settled law laid down by various High Courts and Hon'ble Supreme Court read with Section 168 of the M. V. Act, 1988.

Therefore, appeal is required to be allowed by enhacing the amount to Rs. 63.OOO/- with 9% interest from the date of the application. Accordingly, award made by the Claims Tribunal in M.A.C. Petition No. 133 of 2004 dated 4th March, 2008 is modified to the effect that the appellants claimants are entitled for Rs. 63,000/- (Rupees sixty three thousand only) being enhanced amount with interest thereon at the rate of 9% from the date of application till the date of actual payment, and therefore, appeal is allowed with no order as to costs.