Kerala High Court
T.T.Dinesan vs The Oriental Insurance Company Ltd on 28 May, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
WP(C) NO. 1468 OF 2014
PETITIONER:
T. T. DINESAN,
AGED 53 YEARS, S/O. LATE SANKARAN,
RESIDING AT 'SUDARSANAM', NEAR HEAD POST OFFICE,
VATAKARA, VATAKARA TALUK, KOZHIKODE DISTRICT,
KERALA STATE - 673101.
BY ADVS.
SRI. B. KRISHNAN
SRI. R. PARTHASARATHY
RESPONDENTS:
1 THE ORIENTAL INSURANCE COMPANY LTD.,
(WHOLLY OWNED BY GOVERNMENT OF INDIA),
DIVISIONAL OFFICE NO 2, 2ND FLOOR, KPK RIALTO,
T K JUNCTION, THANA, KANNUR - 670012.
2 THE INSURANCE REGULATORY & DEVELOPMENT AUTHORITY,
3RD FLOOR, PARISRAMA BHAVAN, BASHEER BAGH,
HYDERABAD - 500 004, ANDRA PRADESH.
BY ADVS.
SRI. GEORGE CHERIAN (SR.)
SMT. LATHA SUSAN CHERIAN
SMT. K. S. SANTHI
SRI. K. L.NARASIMHAN, SC TAC/IR & DA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 1468 OF 2014
2
DINESH KUMAR SINGH, J.
--------------------------
WP (C) No. 1468 of 2014
-------------------------
Dated this the 28th day of May, 2024
JUDGMENT
1. The present writ petition has been filed for the following
reliefs;
(i) Direct the respondents by a writ
of mandamus or other suitable writ or
order to pay the petitioner the fees
payable for Advocates under rule 381
of the Kerala Motor Vehicles Rules
1989;
(ii) Further to issue a writ of
certiorari or other suitable writ or
order quashing the original of Exts P1
& P2 directly opposed to rule 381 of
the Kerala Motor Vehicles Rules 1989;
And
(iii) Further to make such other writ
or order which the Hon'ble High Court
of Kerala deems fit in the
circumstances of the case.
2. The learned Counsel for the petitioner fairly submits that
the issue involved in this writ petition is covered against him in
WP(C) NO. 1468 OF 2014
the Judgment in the case of ICICI Lombard General Insurance
Company v. M. D. Davasia @ Jose and Another [2019 (4) KHC
157]. Paragraph Nos. 29, 30 and 31 of the Judgment which is
relevant is extracted hereunder;
"29. R.10 of the Motor Accidents Claims
Tribunal Rules, 1977 (Kerala) states that
any party may appear in person or
through a legal practitioner before a
Claims Tribunal. Nothing prevents an
Advocate and a client from entering into
a contract regarding the advocates fees to
be paid, though demanding advocate fee
based on the result of the litigation or
charging of professional fees with
reference to percentage of the decretal
amount is professional misconduct. Some
advocates in conducting the matters
before Motor Accidents Claims Tribunals
flagrantly violate this professional ethics.
That may have been one of the reasons
for incorporating S. 381 to the Motor
Vehicles Rules, 1989. The 'advocates
fees' referred to in R.381 of the Motor
Vehicle Rules, 1989, pertains to advocates
fee that can be claimed as costs from the
adversary by the litigant in whose favour
the litigation goes. R.381(1) refers to the
appearance of legal practitioner and
R.381(2) refers to the scale of fees
contemplated in the Rules regarding the
WP(C) NO. 1468 OF 2014
Fees Payable to Advocates in respect of
original suits to be made applicable
(emphasis supplied) to the claims under
the Motor Vehicles Act, 1988. The word
'Rules' referred to above undoubtedly
intends application of the Rules pertaining
to the Payment of Advocates' Fees, as
also to the Civil Rules of Practice, as
applicable to litigation before the Civil
Courts. It is true that Advocates' Fees
Rules is framed by the High Court
regarding fees payable to advocates in
exercise of powers under Art. 225 and
Art. 227 of the Constitution of India for
the High Courts and courts subordinate to
High Courts. There is no dispute that a
Claims Tribunal is not a 'Court
subordinate to the High Court'. Yet, the
purpose in bringing about R. 381(2) into
the statute book is definitely with the
intention to make it clear that advocates'
fees payable as costs in respect of motor
accidents claims must be as in the case of
original suits. Meaning thereby, that
proportionate costs in the form of
advocates fees can as well be claimed in
motor accidents petitions as in original
suits stipulated in the Advocates' Fees
Rules, 1969.
30. It is under R. 195 and R. 196 of the
Kerala Civil Rules of Practice that
WP(C) NO. 1468 OF 2014
provision is made for claiming costs,
including advocate's fee, and R.6 and
R.16 of the Advocates' Fees Rules, 1969
give the rates at which such fees has to
be claimed. There are no specific rules
in the Motor Vehicle Rules, 1989,
analogous to the Rules for payment of
costs prescribed under the CPC, Civil
Rules of Practice and the Advocates' Fees
Rules, 1969 and therefore, there is
nothing wrong in drawing the analogy
while following the mandates of R. 195
and R. 196 of the Kerala Civil Rules of
Practice, 1971 as well as R. 6 and R. 16
of the Advocates' Fees Rules, 1969 in the
light of R. 381(2) of the Motor Vehicle
Rules, 1989 to claim proportionate costs
in proceedings before the Motor Accident
Claims Tribunals.
31. The upshot of the discussions above
is thus:
(1) Motor Accidents Claims Tribunals
must follow the mandate of R. 195 and
R. 196 of the Kerala Civil Rules of
Practice, 1971.
(2) The scales of fees prescribed under
'Rules Regarding Fees Payable to
Advocates' apply to Advocates in Motor
Accidents Claims Tribunals.
WP(C) NO. 1468 OF 2014
(3) R. 6 and R.16 of the Advocates' Fee
Rules, 1969 are applicable to claim
petitions in the light of R. 381(2) of
Motor Vehicles Rules, 1989.
(4) Motor Accidents Claims Tribunals
are empowered to award proportionate
costs.
The reference is answered as above."
3. Considering the stand of the learned Counsel for the
petitioner as well as the Judgment referred above, the present
writ petition is hereby dismissed.
Sd/-
DINESH KUMAR SINGH
JUDGE
Svn
WP(C) NO. 1468 OF 2014
APPENDIX OF WP(C) 1468/2014
PETITIONER'S EXHIBITS
EXHIBIT P-1 TRUE COPY OF THE CIRCULAR PROVIDING FOR
PAYMENT OF FEES TO ADVOCATES
EXHIBIT P-2 TRUE COPY OF THE MINUTES OF THE MEETING
OF THE FIRST RESPONDENT DTD 16/1/2009
EXHIBIT P-3 TRUE COPY OF THE AWARD BY THE COURT OF
MOTOR ACCIDENT CLAIMS TRIBUNAL VATAKARA
DTD 25 JULY 2013
EXHIBIT P-4 TRUE COPY OF THE LETTER BY THE FIRST
RESPONDENT WITH THE COPY ENDORSED TO THE
PETITIONER INFORMING THE PETITIONER THAT
LEGAL FEE WILL BE PAID SHORTLY
