Himachal Pradesh High Court
Sarita Devi & Others vs Ashok Kumar Nagar & Others on 17 June, 2016
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No.448 of 2011
Date of decision: 17.06.2016
Sarita Devi & others .....Appellants
.
Versus
Ashok Kumar Nagar & others ..... Respondents
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice
of
Whether approved for reporting? Yes.
For the appellants: Mr.Ashwani Pathak, Senior Advocate, with
rt Mr. Sandeep K. Sharma, Advocate.
For the respondents: Ms.Anu Tuli Azta, Advocate, for respondent
No.1.
Mr.Jagdish Thakur, Advocate, for respondent
No.3.
Mansoor Ahmad Mir, Chief Justice (oral)
This appeal is directed against the award, dated 31st August, 2011, passed by the Motor Accident Claims Tribunal-II, Mandi, District Mandi, H.P., (for short, "the Tribunal") in Claim Petition No.50 of 2005, titled Sarita Devi & others vs. Ashok Kumar Nagar & others, whereby a sum of Rs.15,50,000/- alongwith interest at the rate of 6% per annum came to be awarded as compensation in favour of the claimants and against the owner and the driver (for short the "impugned award").
2. The claimants have questioned the impugned award on the ground that the Tribunal has fallen into an error in assessing the ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 2 compensation and saddling the owner and the driver with liability, on the grounds taken in the memo of appeal.
3. Ms.Anu Tuli Azta, learned counsel appearing for the .
owner stated that she has been engaged recently and prayed for adjournment to file cross objections. The prayer is declined since the instant appeal is pending on the docket of this Court since the year 2011 and is permitted to raise all the grounds which are available in of the armory of the owner/insured.
4. Following two questions emerge for determination in the instant appeal:
rt
1. Whether the Tribunal has rightly assessed the compensation?
2. Whether the Tribunal has rightly discharged the insurer from liability?
5. In order to determine both these questions, it is necessary to give brief facts of the case, the womb of which has given birth to the present appeal. The claimants invoked the jurisdiction of the Tribunal on the ground that Mohinder Kumar, on 16th July, 2005, while going from Mandi to Jaipur in the vehicle bearing registration No.HR-38-L-5668 met with an accident, at about 4.30 A.M. at Panipat near Karnal Chungi, as a result of which the said Mohinder Kumar sustained injuries and succumbed to the same. It was alleged that the accident was the outcome of rash and negligent driving of the driver of the offending vehicle, namely, Kuldeep. It was further alleged that the deceased had hired the ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 3 offending vehicle in order to bring goats as he was a meat seller.
Thus, the claimants filed the claim petition for grant of compensation to the tune of Rs.25 lacs as per the break-ups given in the claim .
petition.
6. The claim petition was resisted by the respondents and following issues came to be framed:-
"1. Whether deceased Mohinder Kumar died due to of rash and negligent driving of respondent No.2 as alleged? OPP
2. If issue No.1 is proved in affirmative, whether rt petitioners are entitled for compensation, if so, to what amount and from whom? OPP
3. Whether the deceased was a gratuitous passenger as alleged, if so, to what effect? OPR-3
4. Whether driver was not having valid and effective driving license at the time of accident as alleged? OPR-3
5. Relief."
7. Claimants have examined PW-1 Bhagat Ram, PW-2 Raghubir Singh, PW-3 Gautam alias Boby, PW-4 Sarita Devi (claimant), PW-5 Bhim Singh, PW-6 Vinod Kumar and PW-7 Mohinder Gautham. On the other hand, the driver, namely, Kuldeep, has stepped into the witness box as RW-1 and the insurer as examined RW-2 Sanjeev Singh.
8. After scanning the evidence, the Tribunal held that the claimants have proved that the driver Kuldeep had driven the ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 4 vehicle rashly and negligent and accordingly, decided issue No.1 in their favour. The findings returned on issue No.1 are not in dispute and therefore, the same are upheld.
.
9. Before I deal with issue No.2, I deem it proper to take up issues No.3 and 4.
Issue No.3
10. The issue is whether the deceased was traveling in the of offending vehicle as gratuitous passenger. The onus to prove the said issue was on the insurer, has not led any evidence. Thus, as per rt the mandate of law, the insurer has failed to discharge the onus.
However, the Tribunal has gone astray in deciding the said issue in favour of the insurer and holding that the deceased was traveling in the offending vehicle as gratuitous passenger. The discussion made by the Tribunal in paragraphs 20 and 21 of the impugned award are not legally tenable and thus, the findings recorded on this issue are liable to be set aside for the following reasons.
11. I have gone through the pleadings of the parties and scanned the evidence led by the parties. In the Claim Petition, the positive case put forth by the claimants is that the deceased had hired the offending vehicle in order to load goats from Jaipur, but before reaching the said destination, the offending vehicle met with the accident. It is apt to reproduce paragraph 10 of the claim petition hereunder:
::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 5"The deceased boarded the vehicle No.HR: 38-L-5668, from Mandi and was going to bring goats, and when the said vehicle reached at place Karnal Chungi, Panipt (Haryana) all of sudden met with an accident."
.
12. The owner and the driver have admitted that the deceased had hired the offending vehicle and was going to bring the goats, as is evident from their reply, which is reproduced of hereinbelow:
"8 to 11. These paras of the claim petition are admitted to be correct."
rt
13. Having said so, the owner and the driver have admitted that on the fateful day, the offending vehicle was hired by the deceased for carrying goats, which he had to purchase from Jaipur and bring the same to Mandi, but unfortunately before reaching Jaipur, the offending vehicle met with an accident.
14. This Court in a case titled as National Insurance Co. Ltd.
versus Kamla and others, reported in 2011 ACJ 1550, has also discussed the same issue while referring to the judgment of the Apex Court in National Insurance Co. Ltd. versus Cholleti Bharatamma, reported in 2008 ACJ 268 (SC) and held that the person, who had hired the vehicle for transporting goods, was returning in the same vehicle, met with the accident, cannot be said to be an unauthorised/gratuitous passenger.
15. It is apt to reproduce paras 8 to 11 of the judgment rendered in Kamla's case (supra) herein:
::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 6"8. Coming to the second plea taken by the learned counsel for the appellant that the deceased was a gratuitous passenger, a perusal of the reply filed by respondent No. 2, insurance company shows that they had only pleaded that the deceased was admittedly not employee of the insured and was traveling in the .
truck as a gratuitous passenger. Thus, it was submitted that the Insurance Company was not liable. Reliance was also placed upon the decision in National Insurance Co. Ltd. v. Cholleti Bharatamma, 2008 ACJ 268 (SC)wherein the plea was taken that the owner himself travel in the cabin of the vehicle and not with the goods so as to be covered under Section 147. However, in case the driver permits a passenger to travel in the tool box, he cannot escape from the liability that he was of negligent in driving the vehicle and moreover, in a petition under Section 163-A of the Motor Vehicles Act, rash or negligent driving is not to be proved and, therefore, this decision does not help the appellant.
rt
9. Learned counsel for the appellant had also relied upon the decision in National Insurance Co. Ltd. v. Maghi Ram, 2010 ACJ 2096 (HP), wherein a learned Judge of this Court has considered the question and had observed that the Insurance Company is liable in respect of death or bodily injury to any person including the owner of goods or his authorized representative carried in the vehicle. It was observed that it is apparent that the goods must normally be carried in the vehicle at the time of accident.
10. The allegations made by the petitioners in the petition as well as in the evidence were that the deceased had gone after hiring the truck with his vegetable and was coming in the same vehicle when the accident took place. The learned counsel for the claimants/respondents No. 1 to 4 had relied upon the decision of Hon'ble Punjab & Haryana High Court in National Insurance Co. Ltd. v. Urmila, 2008 ACJ 1381 (P&H), wherein it was observed that a passenger was returning after selling his goods when the vehicle turned turtle due to rash and negligent driving. Insurance Company seeks to avoid its liability on the ground that the deceased was no longer owner of the goods as he had sold them off. It was observed that the deceased had hired the vehicle for transporting his animals for selling and was returning in the same vehicle. It was held that the deceased was not an unauthorized/gratuitous passenger in the vehicle till he reached the place from where he had hired the vehicle.
11. The above decision clearly applies to the present facts, which are similar to the facts of the case and ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 7 accordingly, I am inclined to hold that the deceased was not an unauthorized/ gratuitous passenger. No conditions of the insurance policy have been proved that the risk of the owner of goods was not covered in the insurance policy and as such, there is no substance in the plea raised by the learned counsel for the .
appellant, which is rejected accordingly."
16. The same principle has been laid down by this Court in a bunch of two appeals, FAO No. 9 of 2007, titled as National Insurance Company Limited versus Smt. Teji Devi & others, being the of lead case, decided on 22nd August, 2014; FAO No. 22 of 2007, titled as Naresh Verma versus The New India Assurance Company Ltd. & others, decided on 26th September, 2014, FAO No. 77 of 2010, titled rt as NHPC versus Smt. Sharda Devi & others, decided on 17th October, 2014 and FAO No.638 of 2008, titled National Insurance Company vs. Smt.Sundri Devi and another, decided on 3rd July, 2015.
17. Having said so, it is held that the deceased was not traveling in the offending vehicle was gratuitous passenger, but had hired the vehicle and thus, his risk can be said to be covered.
Accordingly, issue No.3 is decided against the insurer.
Issue No.4
18. The Tribunal, while deciding this issue has mentioned the said issue to be as issue No.3, is suggestive of the cursory approach adopted by the Tribunal while deciding the claim petition.
19. The issue is whether the driver of the offending vehicle was having a valid and effective driving licence. To determine the said issue, I have gone through the licence proved on record as Ext.R-1, which does disclose that on the day of accident, the same ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 8 was valid and effective. Moreover, it was for the insurer to plead and prove that the driver of the offending vehicle was not having a valid and effective driving licence, has not led any evidence.
.
20. It is settled proposition of law that it is the duty of the insurer to plead and prove that the insured had committed willful breach of the terms and conditions of the insurance policy read with the mandate of Sections 147 to 149 of the Act, has not led any of evidence and has failed to discharge the onus.
21. My this view is fortified by the Apex Court judgment in rt the case of National Insurance Co. Ltd. versus Swaran Singh & others, reported in AIR 2004 Supreme Court 1531. It is apt to reproduce relevant portion of para 105 of the judgment hereinbelow:
"105. .....................
(i) .........................
(ii) ........................
(iii) The breach of policy condition e.g. disqualification of driver or invalid driving licence of the driver, as contained in subsection (2) (a) (ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to avoid their liability, must not only establish the available defence(s) raised in the said proceedings: but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof wherefore would be on them.
(v).........................
(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 9 holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy .
conditions would apply "the rule of main purpose" and the concept of "fundamental breach" to allow defences available to the insured under Section 149 (2) of the Act."
22. It is also profitable to reproduce para 10 of the latest judgment of the Apex Court in the case of Pepsu Road Transport of Corporation versus National Insurance Company, reported in (2013) 10 Supreme Court Cases 217 hereinbelow:
rt "10. In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran ingh case. If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 10 in such circumstances, the Insurance Company is not liable for the compensation."
23. I may also place on record herein that the learned .
counsel for the insurer has not pressed issue No.4. Accordingly, the said issue is decided against the insurer.
24. The learned counsel for the insurer argued that in the instant appeal, the claimants cannot challenge the impugned of award so far as it relates to fastening of the liability. The learned counsel for the appellant further argued that this Court, in an appeal rt filed by the claimants, cannot set aside the findings which have been recorded against the owner and the driver, who have not filed any appeal.
25. The argument advanced by the learned counsel for the appellant, though attractive, is devoid of any force for the reason that proceedings instituted under Section 166 of the Act are to be taken to the logical end by following a summary procedure. Section 173 of the Act also provides for remedy of appeal.
26. The appeal under Section 173 of the Act is alike the appeal under Section 96 of the Code of Civil Procedure, (for short, the CPC). Therefore, the Court is under obligation to decide all issues arising in case both on facts and law after appreciating the entire evidence.
27. The Apex Court in U.P.S.R.T.C. vs. Km. Mamta and others, reported in AIR 2016 Supreme Court 948, held that Section 173 of the ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 11 Act and the first appeal under Section 96 of the CPC are alike and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case. It is apt to reproduce paragraph 24 of .
the said judgment hereunder:
"24. An appeal under Section 173 of the M.V.Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence."
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28. It is apt to record herein that Part VII of the Code of Civil Procedure (for short, CPC) provides for filing of appeals arising out of decrees and orders. Section 96 provides for appeals from original rt decree. It is apt to reproduce Section 96 of the CPC hereunder:
"1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees."
29. Section 107 of the CPC deals with the "Powers of the Appellate Court" and sub-section (2) thereof, provides specifically that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 12 imposed on the trial Court. It is apt to reproduce Section 107(2) of the CPC, as under:
"107. Powers of appellate court.-
.
(1) xxxxx xxxxxxx xxxxxxxxx (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein."
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30. Section 176 of the Act empowers the State Government to make rules for the purpose of implementing the provisions rt contained in Sections 165 to 174 of the MV Act. It is apt to reproduce Section 176 of the Act, hereunder:
"176. Power of State Government to make rules. A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:--
a. The form of application for claims for compensation and the particulars it may contain, and the fees, if any, to be paid in respect of such applications;
b. The procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;
c. The powers vested in a Civil Court which may be exercised by a Claims Tribunal;
d. The form and the manner in which and the fees (if any) on payment of which an appeal may be preferred against an award of a Claims Tribunal; and e. Any other matter which is to be, or may be, prescribed."
31. In terms of the mandate of Section 176(c) of the Act, the Claims Tribunals are vested with the powers of Civil Court.
::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 1332. In a Claim Petition, summary procedure is to be adopted and all provisions of Civil Procedure Code are not applicable, rather only some provisions have been made applicable .
in terms of Section 169 of the Motor Vehicles Act, 1988 (for short, the Act), read with Rule 232 of the Himachal Pradesh Motor Vehicles Rules, 1999 (for short, the Rules of 1999). It is apt to reproduce Rule 232 of the Rules of 1999, hereunder:
of "232. The Code of Civil Procedure to apply in certain cases:-
The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be, apply to rt proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII; Rule 3 to 10; Order XVI, Rules 2 to 21; Order XVII; Order XXI and Order XXIII, Rules 1 to 3."
33. Now, the question is whether the Appellate Court while hearing an appeal under Section 173 of the Act can pass such an order which ought to have been passed by the Tribunal, without there being any appeal or cross objections from the person against whom the order has been made. The answer is in the affirmative for the reasons given hereinabove, read with the mandate of the Apex Court and of the High Courts.
34. Part VII and Order 41 of the CPC deal with the powers and the scope of the Appellate Court in appeal proceedings.
35. The Apex Court in Sharanamma and others vs. Managing Director, Divisional Contr., North-East Karnataka Road Transport Corporation, (2013) 11 SCC 517, has held that there are no ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 14 fetters on the powers of the appellate Court to consider the entire case on facts and law, while hearing an appeal under Section 173 of the Act. It is apt to reproduce paragraphs 10, 11 and 12 of the .
said decision hereunder:
"10. When an Appeal is filed under Section 173 of the Motor Vehicles Act, 1939 (hereinafter shall be referred to as the 'Act'), before the High Court, the normal Rules which apply to Appeals before the High Court are applicable to such an of Appeal also. Even otherwise, it is well settled position of law that when an Appeal is provided for, the whole case is open before the Appellate Court and by necessary implication, it rt can exercise all powers incidental thereto in order to exercise that power effectively. A bare reading of Section 173 of the Act also reflects that there is no curtailment or limitations on the powers of the Appellate Court to consider the entire case on facts and law.
11. It is well settled that the right of Appeal is a substantive right and the questions of fact and law are at large and are open to Review by the Appellate Court. Thus, such powers and duties are necessarily to be exercised so as to make the provision of law effective.
12. Generally, finding of fact recorded by Tribunal should not be interfered with in an Appeal until and unless it is proved that glaring discrepancy or mistake has taken place. If the assessment of compensation by the Tribunal was fair and reasonable and the award of the Tribunal was neither contrary nor inconsistent with the relevant facts as per the evidence available on record then as mentioned hereinabove, the High Court would not interfere in the Appeal. In the case in hand, nothing could be pointed out to us as to what were the glaring discrepancies or mistakes in the impugned Award of ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 15 the Tribunal, which necessitated the Appellate Court to take a different view in the matter."
36. The Apex Court in Giani Ram vs. Ramjilal, 1969 (1) SCC .
813, held that Order 41 Rule 33 CPC empowers the appellate Court to pass any decree which justice may require. It is apt to reproduce paragraphs 8 and 9 of the said decision hereunder:
"8. Order 41, Rule 33 of the CPC was enacted to meet a of situation of the nature arising in this case. In so far as it is material, the rule provides:
rt "The Appellate Court shall have power 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. The expression "which ought to have been passed"
means "which ought in law to have been passed". If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case may require.
9. If the claim of the respondents to retain any part of the property after the death of Jwala is negatived, it would, be perpetrating gave injustice to deny to the widow and the two daughters their share in the property to which they are in law entitled. In our view, the case was one in which the power under Order 41, Rule 33, CPC ought to have been exercised and the claim not only of the three sons but also of the widow and the two daughters ought to have been decreed."
::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 1637. The Apex Court in the cases in Narayanarao (dead) through LRs and others vs. Sudarshan, 1995 Supp.(4) SCC 463, Mahant Dhangir and another vs. Madan Mohan and others, 1987 .
(Supp.) SCC 528 and in T.N. Rajasekar vs. N. Kasiviswanathan and others, AIR 2005 SC 3794 held that the High Court, in order to do complete justice to the parties, can invoke the powers under Order 41 Rule 33 of the CPC and pass orders accordingly.
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38. The Apex Court in Delhi Electric Supply Undertaking vs. Basanti Devi and another, JT 1999 (7) SC 486, while replying upon its rt earlier decision in Mahant Dhangir (supra), it was held as under in paragraph 19:
"19. Conditions as laid in provision of Order 41, Rule 33 are satisfied in the present case. When circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the Court cannot be found wanting when it comes to exercise its powers."
39. This Court in H.P. Road Transport Corporation vs. Pt. Jai Ram and etc. etc., AIR 1980 Himachal Pradesh 16, held that under Order 41 Rule 33 of the CPC, wide powers have been given to the appellate Court and once it is seized of a matter in its appellate jurisdiction, it is within its power to do complete justice between all the concerned parties. It is apt to reproduce relevant portion of paragraph No.39 and paragraph 40 of the said decision hereunder:
"...............Moreover, theme of Order 41 and especially the wide powers given to the Court under Rule 33 of Order 41 suggests that the intention of the Legislature is to see that ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 17 'once the Court is seized of a matter in its appellate jurisdiction, it is able to do complete justice between all the concerned parties. To us, therefore, it is very clear that the provision enabling a respondent to file cross-objections made .
in Rule 22 is a procedural provision under which even if a respondent has not preferred any appeal, the Court is enabled to do complete justice to the parties by allowing the respondent concerned to prefer cross-objections within the period of limitation. Under these circumstances, with great of respect to the learned Judges of the Allahabad High Court, we find ourselves unable to accept their view that provision enabling a respondent to file cross-objections is a substantive rt provision and not a procedural one.
40. In view of our finding that provision for filing cross-
objections contemplated by Order 41, Rule 22 is a procedural provision, the ratio of the above referred two decisions of the Supreme Court would at once be attracted, and this Court being seized of an appellate jurisdiction conferred by Section 110-D of the Motor Vehicles Act, It has to exercise that jurisdiction in the same manner in which it exercises its other appellate jurisdiction allowing the respondents in such appeals to prefer cross-objections."
40. Keeping in view the ratio of the judgment supra, it can safely be held that the appellate Court is competent to pass any order in the interest of justice.
41. The High Court of Rajasthan, while dilating upon the powers of the Appellate Court under Order 41 Rule 33, held in United India Insurance Co. Ltd. vs. Dama Ram and others, 1994 ACJ 692, that the appellate Court can rectify the error invoking Order 41, Rule ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 18 33 even in the absence of Cross Objections or appeal by the claimants. It is apt to reproduce paragraph 7 of the said decision hereunder:
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"7. The Tribunal has not passed award in any case against the owner (insured) of the vehicle. It has passed awards against the appellant insurance company only. It is not in dispute that the Tribunal has categorically held that the said accident took place due to rash and negligent driving of the truck by its of driver. As such his employer, namely, Mohd. Rafiq, owner of the said truck, was liable for his negligent act. Thus the Tribunal committed a serious error in not making liable the owner and rt driver of the offending truck to pay the said amounts of compensation. This error can well be corrected by this court by invoking the provisions of Order 41, Rule 33, Civil Procedure Code, even if no cross-objection or appeal has been filed by the claimants-respondents. It has been observed in Kok Singh v. Deokabai AIR 1976 SC 634, paras 6 and 7, as follows:
In Giani Ram v. Ramji Lal AIR 1969 SC 1144, the court said that in Order 41, Rule 33, the expression 'which ought to have been passed' means 'what ought in law to have been passed' and if an appellate court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require.
(7) Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.
Reference of Murari Lal v. Gomati Devi 1986 ACJ 316 (Rajasthan), may also be made here. Similar view has been taken by me while deciding United India Ins. Co. Ltd. v. Dhali 1992 ACJ 1057 (Rajasthan)."
::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 1942. The High Court of Orissa at Cuttack, in M. Adu Ama vs. Inja Bangaru Raja and another, 1995 ACJ, 670, has laid down the same principle of law.
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43. This High Court in Himachal Road Transport Corporation vs. Saroj Devi and others, 2002 ACJ 1146, held that appellate Court is not precluded from passing order which it considers just in the facts of the case, without there being any cross objection or cross appeal.
of It is profitable to reproduce paragraph 15 of the said decision hereunder:
rt "15. Keeping in view the aforesaid decisions of Supreme Court and different High Courts including this Court , we feel that there being no prohibition in law, i.e., either under Motor Vehicles Act or under the provisions of Civil Procedure Code, this Court is not precluded from passing order which it considers just in the circumstances of a case without there being either cross-objection or cross-appeal. As such we are further of the view that Order 41, Rule 33 is fully applicable to the appeals under the Motor Vehicles Act."
44. In National Insurance Co. Ltd. vs. Mast Ram and others, 2004 ACJ 1039, the question arose before this High Court was -
Whether the appellate Court can modify the award in the absence of cross-appeal. This High Court answered in the affirmative. It is apt to reproduce paragraph 13 of the said judgment hereunder:
"13. Because of what has been held in this judgment, it is felt necessary to exercise power vested in this court under Order 41, Rule 33 of the Civil Procedure Code to set aside the findings in the operative portion of the award requiring the ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 20 appellant to pay the amount and then to recover it from the 'insurer' (it should have been 'insured'?). This is a direction in the impugned award that needs to be set aside. On this aspect, Mr. Sharma had argued that there is no cross-appeal by the .
owner of the vehicle. To meet such a situation, legislature had enacted Order 41, Rule 33 in the Civil Procedure Code even in cases where an appeal is not filed by a party, like the owner in the present appeal. As such, this plea cannot be accepted."
45. This High Court in LAC Solan and another vs. Bhoop Ram, of 1997(2) Sim.L.C. 229, modified the awards in exercise of powers under Order 41 Rule 33 of the CPC.
rt
46. Faced with the similar situation, the Jammu and Kashmir High Court, in State Bank of India vs. M/s Sharma Provision Store and another, AIR 1999 J&K 128, held that a High Court can pass a decree which ought to have been passed by the trial Court. It is apt to reproduce relevant portion of paragraph 7 of the said decision hereunder:
"7. .........................This is an exceptional situation which authorises this Court in the present appeal to pass such decree as ought to have been passed or as the nature of the case demands. Similarly discretion vested in this Court under the aforesaid provision of law will not be refused to be exercised simply because respondents have not either filed an appeal or cross-objections."
47. This Court in FAO No.203 of 2010, titled Nati Devi and another vs. Maya Devi and others, decided on 20th May, 2016, alongwith connected matters, has taken the similar view.
::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 2148. Thus, it can easily be deduced that the mandate of Section 96, Section 107(2) and order 41 Rule 33 of the CPC is just to rectify the errors and achieve the aim and object of the legislation.
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The purpose of Order 41, as discussed hereinabove, is to enable the appellate Court to do complete justice between the parties and to pass order which ought to have been passed while keeping in view the facts and circumstances of the case.
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49. Accordingly, keeping in view the mandate of Section 146 of the Act and aim and object of granting compensation read rt with above discussion, it is held that this Court has the power to examine the question whether the Tribunal has rightly saddled the owner with the liability, even if the owner has not questioned the impugned award.
50. In the instant case, the factum of insurance is admitted.
51. Having glance of the above discussion, it is clear that the insurer has failed to prove that the owner had committed any breach, what to talk of willful breach.
52. Having said so, the findings returned by the Tribunal are set aside and the insurer is saddled with the liability.
Issue No.2:
53. Coming to this issue, I have gone through the assessment made by the Tribunal, appears to be on the material placed on record. Accordingly, it is held that the amount of ::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 22 compensation awarded by the Tribunal is adequate and requires no enhancement.
54 However, the Tribunal has awarded interest at the rate .
of 6%, which is on the lower side. It is beaten law of the land that the rate of interest should be awarded as per the prevailing rates, in view of the judgments rendered by the Apex Court in cases titled as United India Insurance Co. Ltd. and others versus Patricia Jean of Mahajan and others, reported in (2002) 6 Supreme Court Cases 281;
Santosh Devi versus National Insurance Company Ltd. and others, rt reported in 2012 AIR SCW 2892; Amrit Bhanu Shali and others versus National Insurance Company Limited and others, reported in (2012) 11 Supreme Court Cases 738; Smt. Savita versus Binder Singh & others, reported in 2014 AIR SCW 2053; Kalpanaraj & Ors. versus Tamil Nadu State Transport Corpn., reported in 2014 AIR SCW 2982; Amresh Kumari versus Niranjan Lal Jagdish Pd. Jain and others, reported in (2015) 4 Supreme Court Cases 433, and Mohinder Kaur and others versus Hira Nand Sindhi (Ghoriwala) and another, reported in (2015) 4 Supreme Court Cases 434, and discussed by this Court in a batch of FAOs, FAO No. 256 of 2010, titled as Oriental Insurance Company versus Smt. Indiro and others, being the lead case, decided on 19.06.2015.
55. Accordingly, it is held that the amount of compensation shall carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till realization.
::: Downloaded on - 15/04/2017 20:36:47 :::HCHP 2356. The insurer is directed to deposit the entire amount, alongwith up-to-date interest, within a period of eight weeks from today and on deposit, the Registry is directed to release the same in .
favour of the claimants through their bank accounts, strictly in terms of the impugned award.
57. The appeal stands disposed of accordingly.
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June 17, 2016 ( Mansoor Ahmad Mir )
(tilak) Chief Justice
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