Calcutta High Court (Appellete Side)
National Insurance Company Limited vs Smt. Sulekha Das & Ors on 22 November, 2017
Author: Dipankar Datta
Bench: Debi Prosad Dey, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
PRESENT : Hon'ble Justice Dipankar Datta
and
Hon'ble Justice Debi Prosad Dey
FMA 3903 of 2015
National Insurance Company Limited
v.
Smt. Sulekha Das & ors.
For the appellant : Mr. Rajesh Singh
For the respondents 1 to 4 : Mr. Amit Ranjan Roy
Heard on : July 25 and August 1, 2017
Judgment on : November 22, 2017
DIPANKAR DATTA, J.:-
1. An award dated September 30, 2013 of the Motor Accident Claims Tribunal,
Asansol (hereafter the tribunal) passed in M.A.C. Case No.21 of 2012 is under
challenge in this appeal under Section 173 of the Motor Vehicles Act, 1988
(hereafter the Act) at the instance of National Insurance Company Limited
(hereafter the appellant), the opposite party no.2 before such tribunal.
2. It is revealed from the records that the respondents 1 to 4 in this appeal
(hereafter the claimants) had the occasion to approach the tribunal owing to the
unfortunate death of Bijan Behari Das (hereafter the victim) in a road accident
involving the use of two motor vehicles on February 23, 2010. The claimants in
the application under Section 166 of the Act, presented on May 4, 2010, happen
to be the widow, the children (son and minor daughter) and the mother of the
victim. It was pleaded in the claim application that while the victim was
returning home late in the evening riding his scooter bearing registration no.WB-
38U/7951, he was dashed from behind by an Ambassador car bearing
registration no.JH-10C/5289 (hereafter the offending vehicle). As a result thereof,
the victim fell down and sustained severe head injury. He was immediately
shifted to the local sub-divisional hospital where he succumbed to his injury. The
owner of the offending vehicle and the appellant were impleaded as the opposite
parties 1 and 2, respectively. The victim, aged 50 years, was a railway employee
and in receipt of Rs.30,000/- as salary. As such, a sum of Rs.27,00,000/- was
claimed as compensation by the claimants from the opposite parties. The owner
of the offending vehicle filed a written objection disowning the claim but thrust it
on the appellant. He did not, however, contest the claim application at any
subsequent stage. However, the claim application was seriously contested by the
appellant by filing a written objection. It pleaded therein that the victim was
riding the scooter without wearing a helmet, and that the driver of the offending
vehicle was not having a valid driving license; hence, it was not liable to bear
compensation. On behalf of the claimants several documents were adduced in
evidence apart from the oral testimony of three witnesses, including an eye-
witness of the accident. The appellant also led oral and documentary evidence to
substantiate that the offending vehicle was driven by a person without having a
valid driving license. The tribunal upon consideration of the oral and
documentary evidence led before it arrived at a finding that the victim died
because of rash and negligent driving of the offending vehicle. No argument on
behalf of the appellant was advanced to the effect that the victim was not wearing
a helmet and, therefore, it was a case of contributory negligence; hence, the
tribunal did not return any finding in that behalf. It was further found by the
tribunal that the offending vehicle was covered by a policy of the appellant. The
objection raised by the appellant that the driver of the offending vehicle did not
have a valid driving license was overruled, albeit without assigning any specific
reason. However, having regard to a particular submission made on behalf of the
claimants which is noted in the award, it might have crossed the mind of the
tribunal that merely because the offending vehicle was driven by one without a
valid driving license was not sufficient reason to absolve the appellant of its
liability to pay compensation and, consequently, it was held liable. After
regarding the age of the victim as 50 years 4 months + in terms of the post
mortem report, reckoning Rs.3,19,762/- as his annual income, applying the
multiplier of 11 (as per the Second Schedule of the Act) and deducting 1/3rd on
account of personal and living expenses, it was observed that the claimants are
entitled to Rs.23,45,762/- on account of compensation. The widow of the victim
was also held entitled to Rs.5,000/- as loss of consortium. The compensation so
assessed was directed to be paid by the appellant in the manner specified within
45 days of receipt of the award, failing which it would carry interest @ 6% per
annum from the date of filing of the claim application till payment.
3. Appearing in support of the appeal, Mr. Singh, learned advocate raised the
following contentions:
(i) The case set up in the claim application should have been completely
disbelieved having regard to belated registration of the First
Information Report (hereafter the FIR);
(ii) The tribunal fell in error in not assigning any reason while overruling
the objection that the offending vehicle was being driven contrary to
the terms and conditions of the policy of insurance and hence the
appellant was not liable;
(iii) The quantum of death benefits received by the claimants upon death
of the victim should have been deducted from the compensation
assessed as payable; and
(iv) Appointment on compassionate ground of the son of the victim was a
relevant factor that the tribunal overlooked in assessing
compensation payable to the claimants.
4. It was, accordingly, prayed that the award be set aside and the appellant
absolved of its liability to compensate the claimants.
5. Answering the contentions raised in support of the appeal, Mr. Roy, learned
advocate for the claimants submitted that absolutely no case for interference in
exercise of appellate powers had been set up; on the contrary, the claimants are
entitled to higher amount of compensation which they are entitled in law to claim
even without filing a memorandum of cross-objection.
6. To repel the first contention of Mr. Singh, our attention was drawn to the post-
mortem report first and it was contended that such examination was conducted
on the cadaver of the victim at 13.00 hours in relation to Asansol (S) P.S. UD
Case No.102/10 dated February 24, 2010. Secondly, the oral evidence of the
widow of the victim (PW-1) in course of cross-examination was placed. She
deposed of her unstable mental condition being the reason for belated
registration of the FIR. Mr. Roy also submitted that delay of 20 (twenty) days in
approaching the police, after completion of the last rites according to Hindu
customs, cannot be fatal and in this regard he placed reliance on the decision in
Ravi v. Badrinarayan [(2011) 4 SCC 693]
7. It was next contended by Mr. Roy that the failure of the tribunal to assign reason
while overruling the particular objection ipso facto cannot render its award bad.
He submitted that the principle of 'pay and recover' may be applied, if at all it is
found that the appellant was not liable to indemnify the insured on account of
the latter breaching any of the terms and conditions of the insurance policy.
8. So far as the third contention of Mr. Singh is concerned, Mr. Roy placed reliance
on the decision in Ummehani Bewa v. Reliance General Insurance Co. Ltd. [2016
(4) T.A.C. 104 (Cal)] to contend that receipt of death benefits by the heirs of the
deceased from his employer has never been treated as a factor for reduced
compensation.
9. Finally, Mr. Roy contended that there was no evidence before the tribunal of the
son of the victim having been appointed on compassionate ground and, therefore,
such contention is equally unmeritorious. Even otherwise, the point is no longer
res integra in view of the decision of the Supreme Court in Vimal Kanwar v.
Kishore Das [(2013) 7 SCC 476].
10. It was further contended by Mr. Roy that the tribunal fell in error in not awarding
any interest on the assessed compensation from the date of filing of the claim
application. According to him, no reason was assigned by the tribunal why it
considered the claimants not entitled to interest from such date and awarding
interest only on default of the appellant to pay compensation within the date as
specified in the award.
11. Also, relying heavily on the decision in Rajesh v. Rajbir Singh [(2013) 9 SCC 54],
Mr. Roy contended that even in respect of a claim application arising out of death
of a clerk in a motor accident of 2007, the Supreme Court awarded
Rs.1,00,000/- towards loss of consortium, Rs.1,00,000/- towards loss of care
and guidance for the three minor children and Rs.25,000/- on account of funeral
expenses.
12. At this stage, Mr. Singh submitted that the appellant cannot be worse off for
presenting this appeal and he prayed for liberty to cite an authority for the
proposition that in the absence of a cross-objection, the High Court in an appeal
under Section 173 of the Act, which is filed by the owner/insurance company for
reducing compensation, cannot increase compensation over and above what is
awarded by the Claims Tribunal.
13. Availing the liberty granted by us, Mr. Singh cited the decisions of the Supreme
Court in Ranjana Prakash v. Divisional Manager [(2011) 14 SCC 639] and
Oriental Insurance Co. Ltd. v. R. Swaminathan [2006 (1) T.A.C. 965 (SC)], and
unreported decisions of the Madras High Court and the Andhra Pradesh High
Court in Karnataka State Road Transport Corporation v. Nazir Ahmed dated
August 14, 2015 and New India Assurance Co. Ltd. v. Smt. S. Rajya Lakshmi
dated June 2, 2014, respectively.
14. Per contra, Mr. Roy referred to the provisions of Order XLI Rule 33 of the Civil
Procedure Code (hereafter the CPC) and contended that the wide ranging power
conferred on an appellate court thereby would bestow on the High Courts
exercising appellate power the authority to award higher compensation in a given
case where the Claims Tribunal is found to have committed glaring mistakes in
computing notional income, selecting the appropriate multiplier, not awarding
interest without any cause, etc. To buttress his contention, Mr. Roy placed
reliance on the decisions of the Supreme Court in Panna Lal v. State of Bombay
[AIR 1963 SC 1516], Mahant Dhangir v. Shri Madan Mohan [AIR 1988 SC 54],
Delhi Electric Supply Undertaking v. Basanti Devi [AIR 2000 SC 43], Ravi Kumar
v. Julmidevi [(2010) 3 WBLR (SC) 745], Sanobanu Nazirbhai Mirza v. Ahmedabad
Municipal Transport Service [(2013) 16 SCC 719] and the decisions of this Court
in Bijan Kumar Chakraborty v. Suchandra Bardhan [2000 (2) CLJ 554], the
Orissa High Court in New India Assurance Co. Ltd. v. Ramchandra Gauda [2012
(3) T.A.C. 748] and the Bombay High Court in The State of Maharashtra v. Smt.
Kamaladevi Kailashchandra Kaushal [2017 Supreme (Mah) 321].
15. It is now time for us to consider the rival contentions and render our decision on
each one of them.
16. Asansol (S) PS FIR No.60/10 dated March 14, 2010 under Sections 279/304-
A/427 of the Indian Penal Code was registered on the written complaint of the
son of the victim, wherein he reported the accident that took away the life of his
father and also furnished particulars of the vehicles that were involved in such
accident. The cause for belated lodging of complaint was explained by referring to
the "funeral process" and the "mental state" of the bereaved family. The FIR and
the written complaint (Exhibits 1 and 2 respectively), read with the post-mortem
report (Exhibit 7) and the uncontroverted oral testimony of the PW-1, leave no
manner of doubt that the delay of nearly 20 (twenty) days in lodging the
complaint with the police, notwithstanding that the police station was a stone's
throw away from the residence of the claimants, was not intentional or driven by
ulterior motives but occasioned plainly due to circumstances beyond the control
of the claimants.
17. The Supreme Court in Ravi (supra) had the occasion in similar circumstances to
rule as follows:
"17. It is well settled that delay in lodging the FIR cannot be a ground to
doubt the claimant's case. Knowing the Indian conditions as they are, we
cannot expect a common man to first rush to the police station
immediately after an accident. Human nature and family responsibilities
occupy the mind of kith and kin to such an extent that they give more
importance to get the victim treated rather than to rush to the police
station. Under such circumstances, they are not expected to act
mechanically with promptitude in lodging the FIR with the police. Delay in
lodging the FIR thus, cannot be the ground to deny justice to the victim.
18. In cases of delay, the courts are required to examine the evidence with
a closer scrutiny and in doing so the contents of the FIR should also be
scrutinised more carefully. If the court finds that there is no indication of
fabrication or it has not been concocted or engineered to implicate innocent
persons then, even if there is a delay in lodging the FIR, the claim case
cannot be dismissed merely on that ground. The purpose of lodging the FIR
in such type of cases is primarily to intimate the police to initiate
investigation of criminal offences.
19. Lodging of FIR certainly proves the factum of accident so that the
victim is able to lodge a case for compensation but delay in doing so cannot
be the main ground for rejecting the claim petition. In other words,
although lodging of FIR is vital in deciding motor accident claim cases,
delay in lodging the same should not be treated as fatal for such
proceedings, if claimant has been able to demonstrate satisfactory and
cogent reasons for it. There could be a variety of reasons in genuine cases
for delayed lodgement of FIR. Unless kith and kin of the victim are able to
regain a certain level of tranquillity of mind and are composed to lodge it,
even if, there is delay, the same deserves to be condoned. In such
circumstances, the authenticity of the FIR assumes much more
significance than delay in lodging thereof supported by cogent reasons."
18. In view the above and having meticulously perused the FIR together with
explanation for the delay and the relevant evidence of the witness for the
claimants, we find no reason to hold that belated registration of the FIR should
be viewed as a ground for interference with the award impugned. The contention
is without basis and, thus, stands overruled.
19. Turning now to the second contention of Mr. Singh, ostensibly there seems to be
some merit that the tribunal did not assign any specific reason for overruling the
objection of the appellant of not being liable since the offending vehicle was
driven by someone without having a valid driving license. It appears from the
seizure list (Exhibit 6) that a driving license, bearing no.WB-37-005957 issued in
the name of Subhashis Chatterjee, was seized. It also appears that the said
Subhashis Chatterjee surrendered before the relevant court in course of
investigation of the FIR and was released on bail. In the police report (charge-
sheet) submitted under Section 173(2) of the Criminal Procedure Code by the
investigating officer (Exhibit 3), the said Subhashis Chatterjee was named as the
accused who was driving the offending vehicle on the fateful evening. However,
the document (Exhibit A) led in evidence by the witness of the appellant (an
official attached to the Motor Vehicles Department, Asansol) reveals that the
license bearing no.WB-37-005957 was issued in favour of one Sher Bahadur on
May 4, 1996 and was valid till June 5, 2011. There is apparently a contradiction,
which the tribunal did not discuss. However, this by itself may not be sufficient
to hold that the appellant is cleared of its liability to pay compensation to the
claimants. The appellant must pay the compensation at the first instance, for, it
is undisputed that the offending vehicle had been duly covered by a policy issued
by it. We, therefore, do not see reason to interfere simply on the ground of non-
assigning of any reason by the tribunal.
20. However, needless to observe, the appellant could recover the compensation paid
by it to the claimants from the owner of the offending vehicle provided leave
therefor is granted by us in that behalf. We were minded to pass an order in that
direction but do not feel inclined so to do because of the reason following.
21. In terms of rule 33(a) of Chapter V of the Appellate Side Rules titled "General
Rules of Procedure", the requisites for service of notice of appeal on the
respondents therein are required to be put in by the appellant within 4 (four
weeks) of a notice to be issued and displayed in the manner specified therein. We
need not examine whether such notice was displayed or not because the
departmental noting in this regard is not too clear. However, the appeal was
registered on October 15, 2015 and notice of arrival of lower court records was
served on Mr. Singh on March 31, 2016. These appear from the departmental
noting on two of the order-sheets. There is also a note dated November 22, 2016
to the effect that the appellant has not put in the requisites for service of notice of
appeal on the owner of the offending vehicle. Service of notice of receipt of the
lower court records by this Court upon registration of the appeal, in the
circumstances, is deemed to be sufficient notice served on Mr. Singh regarding
registration of the appeal. Till date of final hearing of the appeal, the requisites
had not been put in. Although the rules permit extension of time to put in the
requisites, no prayer was made before us to adjourn hearing of the appeal to
enable the appellant to take steps for service of notice of appeal on the owner of
the offending vehicle. A defaulting party cannot urge that discretion should be
exercised in its favour to the detriment of another party, particularly when such
party is not even put on notice of pendency of proceedings where an order would
be sought for detrimental to its interest.
22. Permitting the appellant to initiate proceedings for recovery before the tribunal
behind the back of the owner would result in violation of principles of natural
justice and hence, we refrain from granting leave to the appellant.
23. Next, we move on to the third point argued by Mr. Singh. PW-1 admitted that she
was receiving pension of Rs.12,000/- per month. However, such amount cannot
be taken into consideration for assessing compensation. A coordinate Bench of
this Court in Ummehani Bewa (supra), upon taking into consideration various
decisions of the Supreme Court, held that amount of family pension given to the
family of the deceased cannot be deducted while calculating dependency of the
claimants. We are in respectful agreement with the decision in Ummehani Bewa
(supra), and hold that the argument of Mr. Singh is unacceptable.
24. Finally, the aspect of compassionate appointment would exercise our
consideration. There was no concrete evidence before the tribunal that the son of
the victim was appointed on compassionate ground. Compassionate
appointment, it is well-settled, cannot be claimed as a matter of right. PW-1 in
her deposition was careful in saying that either of her children could be
considered for compassionate appointment. Whether any one of the children has
been so appointed should have been brought on record in a manner known to
law. In the absence of any evidence adduced before us in accordance with law,
and also bearing in mind the decision in Vimal Kanwar (supra), we are not
persuaded to accept the argument of Mr. Singh.
25. All the contentions that were raised in support of the appeal, therefore, fail.
26. We would now examine the award of the tribunal, viewed in the light of the
contentions of Mr. Roy. It does appear to us to suffer from certain infirmities in
relation to computation of compensation payable to the claimants.
27. It has been held by the Supreme Court in Alok Shankar Pandey v. Union of India
(AIR 2007 SC 1198) that:
"9. *** there is misconception about interest. Interest is not a penalty or
punishment at all, but it is the normal accretion on capital. For example if A
had to pay B a certain amount, say 10 years ago, but he offers that amount to
him today, then he has pocketed the interest on the principal amount. Had A
paid that amount to B 10 years ago, B would have invested that amount
somewhere and earned interest thereon, but instead of that A has kept that
amount with himself and earned interest on it for this period. Hence, equity
demands that A should not only pay back the principal amount but also the
interest thereon to B."
28. Section 171 of the Act enables the Claims Tribunal, whenever it allows an
application for compensation made thereunder and determines compensation
that is payable, to direct payment of simple interest at such rate and from such
date not prior to making of the claim as specified in the award. Since the
appellant was held liable to pay compensation to the claimants, absence of any
direction for payment of interest from the date of filing of the claim application
without the claimants being at fault for non-disposal of the claim application at
an early date and, on the contrary, direction for payment of interest only on
default committed in payment of compensation within the laid down time-frame
[which otherwise is not permissible in terms of the decision of the Supreme Court
in National Insurance Co. Ltd. v. Keshav Bahadur (AIR 2004 SC 1581)] seems to
us to be clearly illegal. The tribunal, thus, allowed the appellant to pocket the
interest on the compensation awarded from the date of filing of the claim
application till payment in terms of its award. We have no hesitation to hold that
the claimants, in the absence of any specific reason assigned by the tribunal for
its denial, were entitled to interest but the tribunal unjustly deprived them of the
same.
29. Reliance placed on Rajesh (supra) by Mr. Roy was apt, as on date we had
reserved judgment on this appeal. If the tribunal had the benefit of looking into
such decision which was rendered nearly 5 (five) months before the award under
challenge came into existence, the compensation awarded to the claimants could
have been on the higher side. It is noticed that the learned advocate for the
claimants failed to place such decision before the tribunal, for which the tribunal
cannot be faulted. We also hasten to record that the Constitution Bench of the
Supreme Court in a recent decision dated October 31, 2017 (National Insurance
Co. Ltd. v. Pranay Sethi), has held the law laid down in Rajesh (supra) not to be a
binding precedent. However, having regard to the conclusions recorded in
paragraph 61 thereof, the claimants could claim enhanced compensation under
the heads of future prospect, loss of estate, loss of consortium and funeral
expenses over and above what the tribunal awarded in their favour.
30. At this juncture, it is necessary for us to consider the provisions in Order XLI
Rule 33 of the CPC and decide whether in the absence of any cross-objection
from the side of the claimants, they are entitled to any sum on account of interest
and/or higher sums as determined in Pranay Sethi (supra). For facility of
reference, it is quoted below:
"33. Power of Court of Appeal.-- 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 and may, where there have been decrees in
cross-suits or where 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 35-
A, in pursuance of any objection on which the Court from whose decree the
appeal is preferred has omitted or refused to make such order.
Illustration
A claims a sum of money as due to him from X or Y, and suit against both
obtains a decree against X. X appeals and A and Y are respondents. The
Appellate Court decides in favour of X. It has power to pass a decree against
Y.
31. The said provision was considered by a Constitution Bench of the Supreme Court
in Panna Lal (supra). It was ruled as follows:
"12. Even a bare reading of 0.41 Rule 33 is sufficient to convince any one that
the wide wording was intended to empower the appellate court to make
whatever order it thinks fit, not only as between the appellant and the
respondent but also as between a respondent and a respondent. It empowers
the appellate court not only to give or refuse relief to the appellant by allowing
or dismissing the appeal but also to give such other relief to any of the
respondent as 'the case may require'. ***"
(underlining for emphasis by us)
32. In Mahant Dhangir (supra), the Supreme Court once again noted the wide power
conferred on an appellate court by the relevant provision. It held :
"15. *** The sweep of the power under Rule 33 is wide enough to determine
any question not only between the appellant and respondent, but also
between respondent and co-respondents. The appellate court could pass any
decree or order which ought to have been passed in the circumstances of the
case. The appellate court could also pass such other decree or order as the
case may require. The words 'as the case may require' used in Rule 33 of
Order 41 have been put in wide terms to enable the appellate court to pass
any order or decree to meet the ends of justice. What then should be the
constraint? We do not find many. We are not giving any liberal interpretation.
The rule itself is liberal enough. The only constraint that we could see, may be
these: That the parties before the lower court should be there before the
appellate court. The question raised must properly arise out of the judgment
of the lower court. If these two requirements are there, the appellate court
could consider any objection against any part of the judgment or decree of the
lower court. It may be urged by any party to the appeal. It is true that the
power of the appellate court under Rule 33 is discretionary. But it is a proper
exercise of judicial discretion to determine all questions urged in order to
render complete justice between the parties. The court should not refuse to
exercise that discretion on mere technicalities."
(underlining for emphasis by us)
33. In Basanti (supra), the Supreme Court quoted the above explanatory passage with
approval and applied it to the appeal at hand.
34. However, it is noted that none of these cases arose out of claim applications under
the Act. The fact situations were also entirely different from the one of which we
are in seisin.
35. The decisions cited by Mr. Singh relate to claim applications under the Act and,
thus, would have a bearing on the issue presently under consideration.
36. We may first look at the decision in Ranjana Prakash (supra). The facts and the
contentions raised by the parties have been noted in paragraphs 2 to 4 of the
decision. The concerned Claims Tribunal awarded compensation in a sum of Rs.
24,12,936/- with interest @ 9% per annum in favour of the claimants. On appeal
by the insurer, the High Court while upholding the findings in regard to income
and calculation of compensation held that the Claims Tribunal ought to have
deducted 30% of the annual income towards income tax. Consequently, the High
Court deducted 30% and reduced the compensation to Rs.16,89,055/- with
interest @ 9% per annum. The said order was under challenge before the Supreme
Court at the instance of the claimants. They contended that the High Court
committed an error in reducing compensation from Rs.24,12,936/- to
Rs.16,89,055/- and sought restoration of the compensation as awarded by the
Claims Tribunal. Before the High Court, the insurer contended that where the
annual income of the deceased was in taxable range, the annual income for the
purpose of computation of compensation should be the annual income less income
tax; and that in the absence of any evidence as to the actual income tax paid, the
Claims Tribunal ought to have deducted 30% from the income towards income tax
and calculated the loss of dependency with reference to the "net" income. The
claimants, on the other hand, contended before the High Court that as the
deceased was holding a permanent job under a statutory body, with assured
increments and career progression and was aged between 40 and 50 years, as per
the decision in Sarla Verma (supra) the income ought to have been increased by
30% keeping the future prospects in view. They further contended that if the
income had been increased by 30% by taking note of the future prospects and if
30% had been deducted towards income tax, that would virtually leave the income
assessed by the Claims Tribunal undisturbed and therefore, computation of
compensation by the Claims Tribunal by taking the monthly income as
Rs.23,134/- without any deductions, did not call for any interference. It was on
consideration of the aforesaid contentions that the Supreme Court proceeded to
hold as follows:
"6. *** 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 the 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 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 seek 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 the
owner/insurer for reduction. The High Court cannot obviously increase the
compensation in an appeal by the owner/insurer for reducing the
compensation, nor can it reduce the compensation in an appeal by the
claimants seeking enhancement of compensation."
(underlining for emphasis by us)
37. In R. Swaminathan (supra), the claimant had approached the Claims Tribunal
seeking Rs.10,00,000/- as compensation for injury suffered by him in a motor
accident. The Claims Tribunal awarded compensation in a sum of Rs.4,50,000/-.
An appeal was presented by the insurer before a Single Bench of the High Court.
The appeal was allowed and the compensation reduced to Rs.3,00,000/-. On a
Letters Patent appeal, a Division Bench of the High Court enhanced the
compensation and awarded Rs.7,44,000/- to the claimant. For such
enhancement, the Division Bench assigned the following reason:
"In this connection, we may observe that we are aware of the fact that we
are enhancing the compensation even though the injured has not claimed
it. But, the question is covered by catena of decisions justifying
enhancement of compensation even in cases where the injured has not
preferred an appeal, provided the circumstances of the case warrants the
same."
The decision of the Division Bench of the High Court was under challenge before
the Supreme Court. The issue was whether the Division Bench of the High Court
was justified in increasing the compensation amount beyond the amount
awarded by the Claims Tribunal despite the fact that its award had not been
challenged by the claimant. The aforesaid reasoning of the Division Bench of the
High Court was observed to be "a very facile way of interfering with the award
when no interference was called for". The Court then proceeded to hold as
follows:
"We called upon the learned Counsel on both sides to show us at least one
case (out of the catena of judgments referred to in the impugned judgment)
in support of this proposition. Learned Counsel frankly confessed that
there was none. On the other hand, the learned Counsel for the appellant
drew our attention to the judgment of this Court in Banarsi v. Ram Phal
reported in (2003) 9 SCC 606, which supports the proposition that in an
appeal filed by the defendant laying challenge to the grant (sic of) a smaller
relief, the plaintiff as a respondent cannot seek a higher relief if he had not
filed an appeal on his own or had not taken any cross-objection. In the
present appeal it would appear that the claimant neither appealed against
the Award of compensation passed by the Tribunal, nor filed any cross-
objection in the first appeal filed by the Insurance Company. This (sic
thus), we are satisfied that the Division Bench of the High Court wholly
erred in increasing the compensation amount beyond the amount awarded
by the Tribunal in the appeal filed by the Insurance Company."
(underlining for emphasis by us)
38. In Banarsi (supra), the Supreme Court referred to various precedents including
Panna Lal (supra) and ruled as under:
"21. In the case before us, the trial court found the plaintiff (in his suit) not
entitled to decree for specific performance and found him entitled only for
money decree. In addition, a conditional decree was also passed directing
execution of sale deed if only the defendant defaulted any paying or
depositing the money within two months. Thus to the extent of specific
performance, it was not a decree outright; it was a conditional decree.
Rather, the latter part of the decree was a direction in terrorem so as to
secure compliance by the appellant of the money part of the decree in the
scheduled time-frame. In the event of the appellant having made the
payment within a period of two months, the respondent would not be, and
would never have been, entitled to the relief of specific performance. The
latter decree is not inseparably connected with the former decree. The two
reliefs are surely separable from each other and one can exist without the
other. Nothing prevented the respondent from filing his own appeal or
taking cross-objection against that part of the decree which refused
straight away a decree for specific performance in his favour based on the
finding of comparative hardship recorded earlier in the judgment. The
dismissal of appeals filed by the appellant was not resulting in any
inconsistent, iniquitous, contradictory or unworkable decree coming into
existence so as to warrant exercise of power under Rule 33 of Order 41. It
was not a case of interference with the decree having been so interfered
with as to call for adjustment of equities between the respondents inter se.
By his failure to prefer an appeal or to take cross-objection the respondent
has allowed the part of the trial court's decree to achieve a finality which
was adverse to him.
22. For the foregoing reasons we are of the opinion that the first appellate
court ought not to have, while dismissing the appeals filed by the
defendant-appellants before it, modified the decree in favour of the
respondent before it in the absence of cross-appeal or cross-objection. The
interference by the first appellate court has reduced the appellants to a
situation worse than in what they would have been if they had not
appealed. The High Court ought to have noticed this position of law and
should have interfered to correct the error of law committed by the first
appellate court."
(underlining for emphasis by us)
Although Panna Lal (supra) was noticed to have set out the scope of Order XLI
Rule 33 of the CPC in the widest terms, a dilution is indeed discernible in the
aforesaid extract from the decision in Banarsi (supra) which did not also consider
Mahant Dhangir (supra) and Basanti (supra), being decisions of co-equal
strength.
39. Be that as it may, since the decision in Panna Lal (supra) and other decisions of
high authority while interpreting Order XLI Rule 33 of the CPC have been noticed
in Banarsi (supra), which in turn has been relied on in R. Swaminathan (supra)
while deciding a claim application under the Act, we consider it imprudent to
proceed on the basis of our own understanding of the decision in Panna Lal
(supra). The essence of the decisions cited by Mr. Singh is that, an appellant
cannot be worse off for filing an appeal (should there be no cross-objection
thereagainst) and the award of the Claims Tribunal attains finality on the
claimant accepting the same without carrying it higher up. We have no option
but to accept such position as the law governing even claim appeals under the
Act, although we shall briefly indicate our view hereafter which, though at
variance, is of no consequence in view of Article 141 of the Constitution.
Enhancement of compensation claimed by Mr. Roy by pressing into service Order
XLI Rule 33 of the CPC may not, therefore, be a permissible course here in view
of the decisions in R. Swaminathan (supra) and Ranjana Prakash (supra).
40. Having said so, it cannot be overlooked that the provision in Order XLI Rule 33 of
the CPC although not part of the substantive law relating to appeals (under
Section 96 and 100 of the CPC) quite unusually confers wide powers on an
appellate court. The marginal note of Rule 33 says "Power of Court of Appeal".
The wide expanse of power conferred on a court of appeal authorizes it to pass or
make such further or other decree or order as the case may require (underlining
for emphasis by us). Importantly, this power is available to be exercised by the
Court notwithstanding that the appeal is as to part only of the decree and in
favour of all or any of the respondents or parties, although such respondents or
parties may not have filed any appeal or objection (underlining for emphasis by
us).
41. There is a perception that if a party who has been declined part of several relief
claimed in a suit does not challenge that part of the decree declining relief but, in
an appeal by a defendant, is granted such part of the relief in course of appellate
proceedings, much of Order XLI Rule 22 conferring power on an aggrieved party
to file cross-objection would be dead letter. At first blush, it might seem attractive
but on closer reading it does not appear so. The power conferred on a court of
appeal by Order XLI Rule 33 is discretionary and no relief thereunder can be
claimed as of right, as can be claimed if a cross-appeal or a cross-objection were
filed. The words in Order XLI Rule 33 must be given the widest possible
amplitude to serve the purposes of the legislation, viz. appellate court's power to
do justice between the parties by making any decree or order that the case may
require notwithstanding that a cross appeal/objection may not have been filed,
which the provision itself has conferred. It has most appropriately been pointed
out by the Supreme Court in Mahant Dhangir (supra) that no liberal
interpretation is required, for the rule itself is liberal enough.
42. We also need to bear in mind that the scheme for payment of compensation to
the legal representative(s) of a victim of a motor accident or to a surviving victim
is a beneficent piece of legislation, the object wherefor is to ensure that he
does/they do receive "just" compensation. What is "just" compensation? We can
do no better than reproduce below a passage from the decision of the Supreme
Court in Divisional Controller, KSRTC v. Mahadeva Shetty [(2003) 7 SCC 197]
reading thus:
"15. It has to be kept in view that the Tribunal constituted under the Act as
provided in Section 168 is required to make an award determining the
amount of compensation which to it appears to be 'just'. It has to be borne
in mind that compensation for loss of limbs or life can hardly be weighed in
golden scales. Bodily injury is nothing but a deprivation which entitles the
claimant to damages. The quantum of damages fixed should be in
accordance with the injury. An injury may bring about many consequences
like loss of earning capacity, loss of mental pleasure and many such
consequential losses. A person becomes entitled to damages for mental and
physical loss, his or her life may have been shortened or that he or she
cannot enjoy life, which has been curtailed because of physical handicap.
The normal expectation of life is impaired. But at the same time it has to be
borne in mind that the compensation is not expected to be a windfall for
the victim. Statutory provisions clearly indicate that the compensation
must be 'just' and it cannot be a bonanza; not a source of profit but the
same should not be a pittance. The courts and tribunals have a duty to
weigh the various factors and quantify the amount of compensation, which
should be just. What would be 'just' compensation is a vexed question.
There can be no golden rule applicable to all cases for measuring the value
of human life or a limb. Measure of damages cannot be arrived at by
precise mathematical calculations. It would depend upon the particular
facts and circumstances, and attending peculiar or special features, if any.
Every method or mode adopted for assessing compensation has to be
considered in the background of 'just' compensation which is the pivotal
consideration. Though by use of the expression 'which appears to it to be
just', a wide discretion is vested in the Tribunal, the determination has to
be rational, to be done by a judicious approach and not the outcome of
whims, wild guesses and arbitrariness. The expression 'just' denotes
equitability, fairness and reasonableness, and non-arbitrariness. If it is not
so, it cannot be just."
The aforesaid decision emphasizes that while compensation cannot be an
unimaginable bounty, it cannot also be niggardly.
43. Having noted what is expected of a Claims Tribunal while assessing "just"
compensation and specifically bearing in mind that the laws relating to territorial
jurisdiction, the laws of limitation as well as the strict rules of pleadings do not
apply to claim applications and also that in a given case a Claims Tribunal is
empowered, in view of the decision of the Supreme Court in Nagappa v.
Gurudayal Singh (AIR 2003 SC 674) and those following it in Ibrahim v. Raju
[(2011) 10 SCC 634], Sanjay Batham v. Munnalal Parihar [(2011) 10 SCC 665]
and Sanobanu Nazirbhai Mirza (supra), even to award compensation beyond
what has been claimed with the only rider that it should be "just" as ordained by
Section 168 of the Act and not arbitrary or fanciful, the principle that one cannot
be worse off for presenting an appeal may not be apt in appeals under Section
173 of the Act. In this context, one cannot be unmindful of the dilatory tactics
adopted by insurers in disposal of claim applications before the Claims
Tribunals. The same has also not escaped the attention of the Supreme Court. It
would be worthwhile to set out hereunder the concerns expressed in Ibrahim
(supra):
"8. *** A very large number of people involved in motor accidents are
pedestrians, children and women and, on account of sheer ignorance,
poverty and other disabilities, majority of them are unable to engage
competent lawyers for putting their cause before the Tribunals and the
courts. The insurance companies, with whom the vehicles involved in the
accidents are insured always have the advantage of assistance of legally
trained mind (law officers and panel lawyers). They contest the claim
petitions by raising all possible technical objections for ensuring that their
clients are either completely absolved or their liability is minimised and in
the process, adjudication of the claims filed by the victims and/or their
legal representatives is delayed for years together. At times, the delay in
disposal of the claim cases and litigation expenses make the award of
compensation meaningless for survivors of the accidents and/or families of
the victims.
9. This Court has time and again emphasised that the officers, who preside
over the Tribunals adopt a proactive approach and ensure that the claims
filed under the Act are disposed of with required urgency and
compensation is awarded to the victims of the accident and/or their legal
representatives in adequate measure keeping in view the relevant factors.
Unfortunately, despite repeated pronouncements of this Court in which
guiding principles have been laid down for determination of the
compensation payable to the victims of road accidents and/or their
families, the Tribunals and even the High Courts do not pay serious
attention to the imperative of awarding just compensation to the
claimants."
(underlining for emphasis by us)
In the self-same decision, the Court in paragraph 21 observed:
"21. We are conscious of the fact that in the petition filed by him, the
appellant had claimed compensation of Rs 3 lakhs only with interest and
costs. It will be reasonable to presume that due to financial incapacity the
appellant and his family could not avail the services of a competent lawyer
and make a claim for adequate compensation. However, as the Tribunal
and the High Court and for that reason this Court are duty-bound to
award just compensation, we deem it proper to enhance the compensation
from Rs 1,89,440 to Rs 6 lakhs.***"
(underlining for emphasis by us)
44. We are, thus, of the humble view looking at the object sought to be achieved that
cases relating to compensation under Chapter XII of the Act call for a different
approach and treatment altogether.
45. Having regard to the conduct of insurance companies all over the state in
presenting appeals at the drop of a hat, majority of which eventually get
dismissed (we have drawn from our experience on the bench), it is high time that
we take a serious view of procrastination of the lis by insurers to deprive the legal
representatives of victims of motor accidents of compensation as long as possible.
If the power to grant compensation more than what is claimed rests with the
Claims Tribunal, and it is the solemn duty of the Claims Tribunals, the High
Courts and the Supreme Court to award "just" compensation to the victims/their
dependants, as held in Ibrahim (supra), we see no reason as to why in an appeal
by an insurer the High Court would be lacking in jurisdiction, in an appropriate
case, to enhance compensation awarded by the Claims Tribunal so as to make it
"just" to the extent possible. The provisions of Chapter XII of the Act should be so
interpreted that an insurer, or for that matter an owner of an offending vehicle,
would run the risk of being saddled with more compensation than what it/he is
required to bear in terms of the award of the Claims Tribunal, should the High
Court find that the Claims Tribunal erred in computing notional income or
selected an incorrect multiplier or unjustly deprived the claimants of interest on
the compensation amount, thereby resulting in inadequate compensation being
assessed for payment, and the appeal of the insurer/owner is nothing but an
exercise to tire out the claimants in their struggle for receiving "just"
compensation and ultimately create a situation where they are compelled to
succumb to a settlement either out of Court or in course of other proceedings for
a lesser amount of compensation. Had it not been for the decision in Ranjana
Prakash (supra) and R. Swaminathan (supra), we would have most certainly
enhanced the compensation in exercise of our appellate powers to provide "just"
compensation to the claimants and thereby do complete justice between the
parties since, in our view, this is an exceptional case warranting such approach.
46. We, however, part with the observation that unless the Supreme Court revisits
the issue and reverses the ratio of the decisions in R. Swaminathan (supra) and
Ranjana Prakash (supra) and lays down the law authoritatively for guidance of
the High Courts thereby paving the way for award of enhanced compensation in
course of appeal proceedings without there being any cross-objection, in
exceptional cases warranting such approach, Order XLI Rule 33 cannot come to
the rescue of the respondents/claimants for enhanced compensation in an
appeal by the owner or the insurer for reducing the compensation awarded.
47. We had enhanced compensation while deciding FMA 3208 of 2016 (ICICI
Lombard General Insurance Co. Ltd. vs Maryam Pervin & ors.) by judgment and
order dated July 18, 2017; however, such decision was rendered without taking
into consideration the decisions in R. Swaminathan (supra) and Ranjana
Prakash (supra). It is, therefore, a decision per incuriam and does not deserve to
be followed.
48. Insofar as the present exercise is concerned, we are unable to accept Mr. Roy's
contention and accordingly refrain from enhancing compensation. However, it is
clear on a reading of the discussions on the merits of the appeal that the
impugned award does not merit interference. The purpose of compensation is to
put the claimant in the same position as he was insofar as money can, but for
the claimants here it has been a far cry. Although the appellant obtained a stay
of operation of the award (vide order dated September 9, 2014) by securing the
amount of compensation awarded by the tribunal as far back as on October 31,
2014, the claimants have not seen the colour of compensation so long. We,
therefore, propose to dismiss the appeal with costs being of the clear opinion that
an unworthy cause was unnecessarily carried to this Court and thereby the
dependants of the victim were made to suffer untold misery for the last several
years.
49. The appeal stands dismissed with costs of Rs.25,000/-. Such costs shall be paid
to the claimants by the appellant within a month from date of receipt of a copy of
this judgment and order.
50. The Registrar General, immediately upon being approached by the claimants,
shall ensure that the amount of compensation awarded by the tribunal (since
secured by the appellant before him) is disbursed in their favour together with
accrued interest in accordance with law as early as possible.
51. The records of the tribunal shall be returned to it forthwith.
Urgent photostat certified copy of this judgment and order, if applied, may be
furnished to the applicant at an early date.
(DIPANKAR DATTA, J.)
DEBI PROSAD DEY, J.
I agree.
(DEBI PROSAD DEY, J.)