Madras High Court
National Insurance Company Ltd. vs Ramachandran And Ors. on 1 October, 1991
Equivalent citations: (1992)2MLJ30
JUDGMENT Abdul Hadi, J.
1. This civil miscellaneous appeal by the insurance company is against the Award of Rs. 1,28,000 granted by the Motor Accidents Claims Tribunal below in respect of the motor accident, which took place on 3.9.1982 and which resulted in the death of one Prithivirajan, whose legal representatives are the claimants-respondents 1 to 8.
2. The learned Counsel for the appellant insurance company submits that he is not attacking the finding of the tribunal below regarding the negligence of the 1st respondent-driver of the offending vehicle or the other finding regarding the quantum of compensation granted. But, his only contention is that the liability of the appellant insurance company is restricted to Rs. 50,000 as per the policy and that this aspect has not been considered at all by the Tribunal below. In fact this very appeal is only with reference to the quantum of Award granted in excess of the above said Rs. 50,000.
3. We also perused the policy and we also find that the contention of the insurance company must be upheld. The Tribunal below has not considered this aspect at all, and has made all the respondents 1 to 3 liable for the above said entire sum of Rs. 1,28,000. The learned Counsel for the 10th respondent, the owner of the offending vehicle also could not dispute the legal position that the insurance company is liable in the present case only to the extent of Rs. 50,008.
4. But, all that he contends is that the compensation awarded is excessive and should be reduced. But, he has not preferred any appeal or cross-objection against the Award of Rs. 1,28,000. However, he contends that Order 41, Rule 33, C.P.C. is applicable to the proceedings before the claims tribunal also and hence the appellate court could give the abovesaid relief of reduction of compensation as claimed by him. In support of this contention he also relied on the decisions in Manjula Devi Bhuta and Ors. v. Manjusri Raha and Ors. 1968 A.C.J. 1, and Assam Corporation v. Binu Rani A.I.R. 1975 Gauhati 3. No doubt, in those two decisions, the question was whether Order 41, Rule 33, C.P.C. was applicable to Motor Accidents Claims Tribunal Cases. Certainly Order 41 Rule 33, C.P.C. is applicable to the claims Tribunal cases. In fact, once the matter comes before this Court in appeal from the tribunal, C.P.C. would be applicable just like any other first appeal, which comes before this Court vide : R. Govindarajulu v. S. Dharman 1986 A.C.J. 178 Mad. (D.B.). But the question here is how far Order 41, Rule 33, C.P.C. can be invoked by the 10th respondent-owner for reducing the compensation already granted. Such an interpretation cannot be put to Order 41, Rule 33, C.P.C. In interpreting Order 41, Rule 33, C.P.C., the Supreme Court in Choudhary Sahu v. State of Bihar , quoted the following passage from its earlier decision reported in Nirmala Bala Ghose v. Balai Chand Ghose :
The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41, Rule 33 may properly be invoked. The rule, however, does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from.
The Supreme Court in the above referred to Choudhary Sahu v. State of Bihar , after quoting the above passage also observed as follows:
The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the court appealed from.
Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference in favour of the appellant, further interference with the decree of the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this rule the court should not lose sight of the other provisions of the Code itself nor the provisions of other laws, viz., the Law of Limitation or the Law of Court-fees etc.
5. Applying the above ruling, it is obvious that in the present case, it is not open to the 10th respondent to invoke Order 41, Rule 33, C.P.C. and to have the quantum of compensation itself be reduced. I may also add that in the above referred to Assam Corporation v. Binu Rani A.I.R. 1975 Gauhati 3 and Manjula Devi Bhuta and Anr. v. Manjusri Raha and Ors. 1968 A.C.J. 1, Order 41, Rule 33, C.P.C. was invoked to the respective facts of those two cases which were similar to the illustration found under Order 41, Rule 33, C.P.C. But, the present claim made by the learned Counsel for the 10th respondent is entirely different and the 10th respondent cannot invoke Order 41, Rule 33, C.P.C. for reducing, the Award already granted.
6. So, in view of our finding in paragraph 3 above, the judgment and decree of the Court below are modified so as to restrict the liability of the appellant only to the extent of Rs. 50,000 (out of the abovesaid sum of Rs. 1,28,000) with interest as awarded by the tribunal below. Accordingly, the appeal is allowed with costs.