Kunwer Singh And Others ... vs Smt. Kanti Devi And Another on 5 April, 2022

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Uttarakhand High Court

Kunwer Singh And Others ... vs Smt. Kanti Devi And Another on 5 April, 2022

It is a claimants/appellants Appeal from Order which has been preferred by invoking the provisions contained under Section 173 of the Motor Vehicle Act, wherein, the claimants / appellants, had put a challenge to an award dated 20th June, 2009, as it has been passed by the learned Motor Accident Claim Tribunal in MACP Case No. 123 of 2005, Kunwer Singh and others Vs. Smt. Kanti Devi and another, by virtue of which, the learned Motor Accident Claim Tribunal, had partly allowed the Claim Petition and had awarded a sum of Rs.1,45,000/- as an amount to be made payable to the dependants of the deceased.

2. Few facts of the case are, that the claimants have filed a Claim Petition, invoking the provisions contained under Section 163-A of the Motor Vehicle Act, contending thereof, that for the purposes of remittance of the amount of 2 adequate compensation, on account of death of late Mr. Anand Singh, who was driving the vehicle, bearing Registration No. UA12A-738, and had met with an accident on 5th December, 2005. It is contended by the claimants that on the ill-fated day, the deceased was driving the vehicle and was travelling from Ghaziabad to Kotdwar, while he was crossing Jalalabad, District Bijnor, all of a sudden, a Nilgai came in front of the vehicle, due to which, he lost control over the vehicle, it collided against the tree, on account of the injuries suffered by him, he was taken to the Government Hospital Kotdwar and while he was on the way and being taken to the hospital, he succumbed to his injury.

3. It was contended by the claimants, that the deceased at the time of accident was employed as a Driver and was earning a salary of Rs.5,500/- per month, out of which, it was contended by the claimants that Rs.4,000/- was being spent by the deceased on the claimants in maintaining them, and hence their dependency has to be assessed on the basis of Rs.4,000/- per month.

4. It is further contended that since the deceased at the time of the accident was of 26 years of age and was unmarried, he would be entitled for an overall compensation, which was determined by them to be payable as Rs.14,25,000/-.

5. On issuance of the notices to the Claim Petition preferred by the appellants/claimants, herein, the opposite Party No. 1, has filed the written statement, being paper No. 3 23-Ga and while accepting some of the part of the pleadings of the Claim Petition, had denied the fact to the effect, that the application and the claim raised, is contrary to law and the incident, which has chanced resulting into the accident, and rather an attempt was made by the Insurance Company to establish the fact that the accident had chanced on account of the negligence of the driver of the vehicle itself and it will not fall to be within the ambit of an accident, in which, the third party could have been benefitted, by the payment of the compensation.

6. The Insurance Company though has in principle admitted the fact as per the insurance cover, under which the vehicle was put i.e. by the Policy Number 545316 was valid from 8th July, 2005 to 7th July, 2006, but since, the attribute of negligence was attempted to be shifted on the deceased himself to be negligent in driving the vehicle, the Insurance Company has denied their liability.

7. The learned Motor Accident Claim Tribunal, after the exchange of the pleadings, had formulated the following issues, which are extracted hereunder :-

"1& D;k fnukad 5&12&05 dks le; 3 cts LFkku fctukSj &uthckckn eksVj ekxZ ij xzke tykykckn ds lehi okgu la0 ;w0,012,&0736 ftls e`rd Lo;a pyk jgk Fkk] ds lkeus uhy xk; vk tkus ds dkj.k okgu vfu;af== gksdj isM ls Vdjk x;k ftlds ifj.kkeLo:i e`rd pkyd vkuUn flag dks xEHkhj pksVsa vkbZ vkSj mldh e`R;q gks xbZA 4 2& D;k nq?kZVuk ds fnuakd dks mijksDr okgu oS/k :i ls chekd`r FkkA 3& D;k nq/kZVuk ds fnukad dks okgu ds leLr dkxtkr oS/k Fks rFkk pkyd ds ikl oS/k pkyu ykblsl FkkA 4& D;k nq/kZVuk Lo;a e`rd dk ykijokgh ds dkj.k ?kfVr gqbZA 5& D;k ;kphx.k dksbZ izfrdj ikus ds vf/kdkjh gSa] ;fn gka rks fdruk o fdl i{k lsA"

8. The claimants in support of their contentions had appeared in the witness box and had recorded their oral testimony as PW1, apart from it, a list of documents by way of paper No. 11-Ga and list of document by way of paper No. 13-Ga was also placed before the Court. The owner of the vehicle had also filed the list of document by way of paper No. 32-Ga.

9. After appreciating the oral and documentary evidence, the learned Motor Accident Claim Tribunal, while determining the dependency has decided the issue in relation thereto, while arriving to its conclusion which were based on the findings recorded on issue No. 5, wherein, the dependency has been determined to be on the basis of the monthly income of the deceased, which was arrived at to be Rs.4,500/- and after drawing a conclusion that in all probability, 1/3rd of the amount, must have been spent by the deceased on his own maintenance and the dependency was accordingly reduced, while considering the annual income, which was assessed to be Rs.15,000/- after the deduction of 1/3rd of the amount, which was made, it was assessed that Rs.

10,000/- was the dependency and considering the age of the deceased to be 26 years, the multiplier of 14 was applied, apart from it, the various other expenditures, payable towards the mental agony and the funeral expenses, the total amount, which was determined to be made payable to the claimants was assessed to be Rs.1,45,000/-.

10. The claimants have filed the present Appeal from Order on various grounds, with regard to the inadequacy in determination of the compensation, and particularly, he has harped upon that the manner in which the notional income has been fixed at Rs. 3,000/- per month, their case is that it was without any plausible foundation and the said notional income ought not to have been taken as to be the appropriate and foundation for determining the amount of compensation, which would have been actually payable.

11. He has also attempted to argue that the Appeal from Order in the light of the ground No. 7, which has been taken by the appellants pertaining to the income, which would be payable on the amount of award determined by the Motor Accident Claim Tribunal, in the light of the implications of the provisions contained under Section 171 of the Motor Vehicle Act.

12. The Appeal was admitted and during the pendency of the Appeal, the Coordinate Bench of this Court after hearing the parties, vide its order dated 19th April, 2021, had framed the following questions, on which, the parties to the appeal were called upon to answer as to whether, at all, 6 the Claim Petition would be tenable under Section 163-A of the Motor Vehicle Act, 1988, and accordingly, the following questions were framed :-

"The Court posed a question to the learned counsel for the appellants that, in case, the driver met with an accident without involvement of any other car, which resulted in death of the driver, how can a claim petition is maintainable? To it, learned counsel for the appellants would submit that the insurance company has not filed any appeal, this Court would decide this appeal on the following two points also:-

(1) In case, like instant one, when the driver met with an accident which resulted into his death without involvement of any other vehicle, can the dependents of the driver maintain a claim petition under Section 163(A) of the Act? And;

(2) Can this Court consider the question no.1 as formulated above in an appeal, filed by the claimants when the insurance company did not choose to file an appeal."

13. The matter had been argued on number of occasions before this Court, and if the rival contentions raised by the parties to the Appeal from Order, are taken into consideration, and particularly, in the light of the reference of the then existing provisions of Section 163-A of the Act, which is extracted hereunder :-

"[163A. Special provisions as to payment of compensation on structured formula basis.--

(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.

Explanation. -- For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).

(2) In any claim for compensation under sub- section (1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.

(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule.]"

14. In fact, if the literal implication of the provisions contained under Section 163-A itself is taken into consideration, it starts with a non obstinate clause, where it provides and aims to carves out an exception, that for any other law for the time being in force, the instrument which is having a force of law, the owner of the motor vehicle, who is authorised and insured to drive the vehicle, would be entitled to be paid with the compensation as indicated in the 2nd schedule; to the legal heirs of the victim as the case may be. However, for the purposes of interpretation and the application of Schedule-II as framed under Section 163-A (2) of the Act, it also becomes a relevant aspect to be considered by this Court, as to whether the claimant shall be entitled to plead or establish a death or a permanent disability 8 in respect of the claim due to wrongful act or neglect or default of the owner of the vehicle, or the vehicle concerned or of any other person.

15. It has been argued by the learned counsel for the respondents, that the simple language of Section 163-A of the Act, and the facts along with circumstances, which has been pleaded by the claimants in their Claim Petition and the circumstances under which, the accident has chanced on 15th December, 2005, it did not satisfy the covenants and the pre conditions contemplated under Section 163-A (2) of the Act, and in that eventuality, the Claim Petition itself would not be tenable. In order to carve out an exception and to answer the question, which has been formulated by the Coordinate Bench of this Court, as referred above, the learned counsel for the appellants/ claimants, submitted that in fact, if the said principle is taken into consideration, he would still be entitled for an adequate determination of compensation in the light of the provisions contained under Order 41 Rule 33 of the CPC and the Appellate Court in the exercise of its suo moto powers can still re-determine the compensation, based upon the circumstances of the case and considering the implications of the income accruing to the deceased and the aspect of dependency too. The implication of Order 41 Rule 33 of the CPC, would only be attracted when in an Appeal from Order under Section 173 of the Act, has been preferred against an award rendered by the Motor Accident Claim Tribunal, which was otherwise legally maintainable before it. If the principal proceedings before the Motor Accident Claim Tribunal, itself was not maintainable, due to non 9 satisfaction of the conditions provided under Section 163-A of the Act, in that eventuality, the very genesis of the proceedings, when it was not tenable, then the implications by exercise of suo moto power under Order 41 Rule 33 of the CPC, could not be extended and stretched to be made applicable, by the Appellate Court for the purposes of determination of the compensation, and for its enhancement according to the expectation of the claimants.

16. The learned counsel for the appellants had submitted that the claim as awarded, deserves to be extended based upon the implication of the multiplier, which was supposed to be applied and the determination of the notional income for the purposes of assessing the adequacy of the compensation.

17. The learned counsel for the appellants has made reference and relied upon a judgement as rendered by the Hon'ble Apex Court in Civil Appeal No. 6110 of 2011, Ranjana Prakash and others Vs. Divisional Manager and another, wherein, the Hon'ble Apex Court, when the argument was raised therein pertaining to the determination of the adequacy of the award in the light of the claim raised towards the future prospects and its enhancement, after applying the principle of Order 41 Rule 33 of the CPC, and he has particularly, drawn the attention of this Court to the contents of para 6, 7 and 8 of the said judgement, which are extracted.

"6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is 10 true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross- objections.

7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an 11 appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.

8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer.

Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."

18. This Court is of the view that, under the present factual backdrop, which was dealt with in para 6 of the said judgement if that is taken into consideration, it was a case where, the Insurance Company or the owner of the vehicle had subjected the award to be challenged under Section 173 of the Motor Vehicles Act, and the claimants have not filed any Appeal as such, as against the award of the Tribunal, and it was under those circumstances, where the claimants have not filed any independent Appeal from Order, for the purposes of enhancement of the award, the Hon'ble Apex Court in para 7 of the judgement, has drawn its power for determining the adequacy of the compensation by applying the provisions of Order 41 Rule 33 of the CPC.

19. In fact, the factual backdrop of the present case is just converse, to the situation, which was prevailing in the said case, because here it is rather the claimants, who have come up with the proceeding under Section 173 of the Motor Vehicle Act, for enhancement of the compensation, wherein, 13 the principles of Order 41 Rule 33 of the CPC, is being sought to be attracted.

20. This Court is afraid to apply the principle of Order 41 Rule 33 of the CPC, in the present case at hand by exercising its suo moto power particularly when it had already been determined, that as per the question framed by the Coordinate Bench, and as raised by the respondents, when the Claim Petition itself was not tenable as per the provisions under Section 163-A of the Act, in that eventuality, the exercise of power under Order 41 Rule 33 of the C.P.C. in an Appeal from Order, filed by the claimants cannot be pressed into.

21. The learned counsel for the appellants has submitted, that admittedly as per the records and the case of the parties themselves, the insurance company has not come forward to put a challenge to the award rendered by the Motor Accident Claim Tribunal, which has been put to challenge by the appellant for the purposes of enhancement of the awarded amount. In that eventuality, the adequacy of compensation awarded by the Motor Accident Claim Tribunal, by the award under challenge, cannot be disturbed under the pretext of the argument extended by the learned counsel for the respondents with regard to the tenability of the proceedings under Section 163-A of the Act.

22. In that eventuality, while declining to interfere in the Appeal from Order, this Court is of the view, that since the Insurance Company is not in appeal, the awarded amount 14 by the Motor Accident Claim Tribunal, qua the claimants as raised before the Court, below do not call for any disturbance on the plea raised by the learned counsel for the respondents on the pretext of the implications of Section 163-A of the Act, because that would have been a question, which could be argued, had the insurance company preferred an appeal.

23. This Court is refraining itself to deal with ground No. 7 of the appellants pertaining to the application of Section 171 for the purpose of determination of the adequacy of interest to be made payable on the awarded amount for the reason being that when the question framed by the Coordinate Bench pertaining to the tenability of the claim petition under Section 163-A of the Act, has been answered against the appellants, the implications of Section 171 at this stage, cannot be taken into consideration.

24. Accordingly, while maintaining the award rendered by the Motor Accident Claim Tribunal, in the absence of there being any Appeal by the Insurance Company, this Appeal from Order for enhancement of the awarded amount, is hereby dismissed.

(Sharad Kumar Sharma, J.) 05.04.2022 Shiv

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Uttarakhand High Court