Madras High Court
Tamil Nadu State Transport vs Saroja on 4 February, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/02/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD)No.1897 of 2003 and C.M.P.No.11671 of 2003 and M.P.(MD)No.2 of 2007 Tamil Nadu State Transport Corporation rep. by its Managing Director, Kumbakonam (Division I). .. Appellant Vs 1.Saroja 2.Minor Kavitha 3.Minor Vadivelu (Minor 2,3-respondents rep. by their mother first respondent) .. Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgement and Decree dated 01.10.1997 passed in M.C.O.P.No.169 of 1995 by the learned Motor Accidents Claims Tribunal-cum-the Subordinate Judge, Thanjavur. !For Appellant ... Mr.N.Asaithambi ^For Respondents ... Mr.G.Rajendran :JUDGMENT
This appeal is focussed as against the Judgement and Decree dated 01.10.1997 passed in M.C.O.P.No.169 of 1995 by the learned Motor Accidents Claims Tribunal-cum-the Subordinate Judge, Thanjavur.
2. Heard both sides.
3. The Tribunal vide Judgement dated 01.10.1997 awarded compensation to a tune of Rs.97,000/- (Rupees ninety seven thousand only) under the following sub- heads:
For loss of income -Rs.90,000/-
For loss of consortium -Rs. 5,000/-
For funeral expenses -Rs. 2,000/-
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Total -Rs.97,000/-
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4. The challenge in this appeal is relating to the quantum of compensation awarded by the Tribunal.
The learned counsel for the appellant/Transport Corporation would contend that the Tribunal awarded excessive compensation under various sub heads as stated supra.
5. The point for consideration is as to whether the Tribunal awarded 'just compensation'?
6. On point:
The learned counsel for the respondents/ claimants placing reliance on Order XLI Rule 33 of C.P.C. and the various decisions emerged thereunder would pray that the compensation might be enhanced even though no cross objection has been filed by the claimants, whereas the learned counsel for the appellant Transport Corporation would cite the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R.Swaminathan & Ors. reported in II(2006)ACC 701(SC) and develop his arguments to the effect that unless there is a cross objection, the question of enhancing the compensation would not arise. Hence, it is just and necessary to refer to the decision of the Hon'ble Apex Court in Oriental Insurance Co. Ltd. v. R.Swaminathan & Ors. reported in II(2006)ACC 701(SC). An excerpt from it would run thus:
"Apparently the first respondent claimant was satisfied with the Tribunal's Award as he did not file any appeal there against to the High Court. Nonetheless, being aggrieved by the Single Judge's judgment, the claimant filed a Letters Patent Appeal before the Division Bench of the High Court. This appeal was allowed and by the impugned judgment the High Court has awarded total compensation amounting to Rs.7,44,000/- under different heads with a direction for payment of interest at 18% from the date of petition. The appellant- Insurance Company is aggrieved thereby and is in appeal before us. The issue that arises in this case is, whether the Division Bench of the High Court was justified in increasing the compensation amount beyond the amount awarded by the Tribunal despite the fact that the Award of the Tribunal was not at all challenged by the claimant. The only reason given by the Division Bench of the High Court for doing so is:
"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 if cases where the injured has not preferred an appeal, provided the circumstances of the case warrants the same".
To say the least, this was a very facial way of interfering with the award when no interference was called for. 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 the judgment of this Court in Banarsi v. Ram Phal, reported in II(2003)SLT258=(2003)9 SCC 606, which supports the proposition that in an appeal filed by the defendant laying challenge to the grant 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. 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".
7. A mere perusal of the excerpt from the said decision would clearly indicate that the Hon'ble Apex Court in that decision has not laid down as a universal rule of interpretation of Order 41, Rule 33 of C.P.C. Taking into consideration, the method and manner in which the Division Bench of this Court in the Letters Patent Appeal, without citing adequate reasons and precedents, enhanced the compensation amount to an extent of Rs.7,44,000/- with 18% interest from that of Rs.3,00,000/- awarded by the Single Bench of the same Court, the Hon'ble Apex Court found fault with it.
8. Furthermore, the above excerpt also would reveal that without even relying upon any precedent, the Division Bench of this Court, simply enhanced the compensation and that too to the extent of double that of what the Single Judge of this Court ordered. It is also clear that when the Hon'ble Apex Court wanted a precedent in that regard, the learned counsel for the appellant therein cited only the decision of the Hon'ble Apex Court in Banarsi v. Ram Phal, reported in II(2003)SLT258=(2003)9 SCC 606. As such, in the peculiar facts and circumstances of that case, the Hon'ble Apex Court felt that the power under order 41, Rule 33 of C.P.C. invoked by the High Court and that too in a case where such an enhancement was not at all warranted, looked askance at it. It is therefore explicite that the Hon'ble Apex Court in the cited decision has not laid down the law that even in a fit case, the High Court should not invoke Order 41, Rule 33 of C.P.C. in the absence of filing cross appeal. Furthermore under Order 41, Rule 33, there are earlier decisions of the Hon'ble Apex Court, which could be cited as under:
(i) Municipal Board, Mount Abu v. Hari Lal reported in 1988 ACJ 281.
(ii) Dangir v. Madan Mohna reported in AIR 1988 SC.54.
(iii) M.D. Pallavan Transport Corporation Ltd., v. Kalavathi reported in 1998(1)ACJ-151.
(iv) State of Punjab v. Bakshish Singh reported in 1998(8)S.C.C.222.
9. The perusal of the aforesaid Judgments of the Hon'ble Apex Court would clearly highlight that without filing cross appeal, the respondents in the appeal could pray for reliefs and that the High Court under Order 41, Rule 33 could grant such reliefs also. This Court in several cases adhering to the aforesaid decisions of the Hon'ble Apex Court held that under Order 41, Rule 33 of C.P.C., this Court could enhance the compensation in appropriate cases. An excerpt from the decision of this Court in Managing Director, Thanthai Periyar Transport Corp., Villupuram v. Sundari Ammal and four Others reported in 1999(II)CTC 560 would run thus:
"Unfortunately, in the instant case, there is no cross-objection. Therefore, it would be essential, in this context, to consider whether this Court has got powers to enhance the amount of compensation, in the event of coming to the conclusion that the award was on the lower side, even though there is no cross-objection by the claimants.
In Dangir v. Madan Mohan, AIR 1988 S.C. 54 and M.D., Pallavan Transport Corporation Ltd., v. Kalavathi, 1998(1)A.C.J 151, it is held that this Court has got power to enhance the compensation, even though the claimants had not filed any cross-objection against the award seeking for higher compensation, if this Court finds that the amount awarded by the Tribunal is not just and adequate. As pointed out by the Apex Court in State of Punjab v. Bakshish Singh, 1998(8) S.C.C.222, the reading of the provision would make it clear that the appellate court has got wide power to do complete justice between the parties and which enables this Court to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objection.
The Apex Court in Dhangir v. Madan Mohan, A.I.R.1988 S.C.54, be referring Order 41, Rule 33, would make the following observation:
"The appellate court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. 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 words 'as the case may be require' used in Rule 33 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 giving any liberal interpretation. The rule itself is liberal enough. the only constraints 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 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 is true that the power of the appellate court under S.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".
10. And then the Division Bench of this Court in the decision in the Managing Director, Annai Sathya Transport Corporation Ltd., Dharmapuri v. Janardhanam and 7 others reported in 2000(II) CTC 272 placing reliance on the decision of the Hon'ble Apex Court held a similar view that without cross appeal Order 41, Rule 33 of C.P.C. could be invoked in appropriate cases. An excerpt from it would run thus:
"At this stage, learned counsel appearing for the respondent/claimants would submit that the Tribunal has awarded interest only from the date of the Judgment and not from the date of the petition. The learned counsel for the respondents/claimants would submit that even though no appeal has been filed by the respondents/claimants or no cross objections have been filed by them, this Court has discretionary power by virtue of Order 41, Rule 33 of Code of Civil Procedure and also in view of the rulings of the Supreme court in Dhangir v. Madan Mohan, AIR 1988 SC 54 to grant the proper relief. Of course, the Apex Court has pointed out in clear and categorical terms and the power conferred under Order 41, Rule 33 on the appellate Court is discretionary, and then it must be used in proper case using the judicial discretion to render justice. The Apex Court in United India Insurance Co., Ltd., v. Narendra Pandurang Kadam and others, 1995(1) SCC 320 has clearly laid down that the rate of interest must be awarded from the date of the petition and not from the date of the Judgment".
11. Over and above that the decision of the Hon'ble Three Judges' Bench of the Hon'ble Apex Court, in Nagappa v. Gurudayal Singh and others reported in 2003 ACJ 12 could be cited here. An excerpt from it would run thus:
"Firstly, under the provisions of Motor Vehicles Act, 1988 (hereinafter referred to as 'the M.V. Act'), there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is-it should be 'just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of, or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to sub- section(1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said section is sub-section (4) which provides that "the Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act". Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed".
12. It is therefore clear that in the interest of awarding just compensation when the High Court is seized of the matter, irrespective of any cross objection filed, in appropriate and deserving cases, which fact I would like to stress, can interfere by invoking Order XLI, Rule 33 of C.P.C.
13. The learned counsel for the appellant/Transport Corporation by placing reliance on the various sub heads would develop his arguments that the deceased was only a coolie in a beetle leaf garden and he could not have earned a sum of Rs.600/- (Rupees six hundred only) per month as assessed by the Tribunal.
14. The learned counsel for the respondents/claimants would submit that even during 1994, the year of the accident, a coolie might have earned a sum of Rs.1500/- (Rupees one thousand and five hundred only) per month and supported his family.
15. While dealing with the cases of 1994, the Court has to take into consideration the then prevailing rate of income at that time. The deceased was admittedly a coolie, working in a beetle leaf garden and in such a case at the most he might have earned a sum of Rs.750/- (Rupees seven hundred and fifty only) per month and after deducting 1/3rd towards the expenditure which the deceased would have incurred for maintaining himself had he been alive irrespective of the fact whether the deceased lead the life of a Bohemian or that of a Spartan, his monthly contribution to the family would have been Rs.500/- (Rupees five hundred only). Actually the Tribunal has chosen only a sum Rs.500/- (Rupees five hundred only) as the monthly dependency of the claimants and as such no interference with such multiplicand is required.
16. The Tribunal has chosen correctly the multiplier 15, considering the age of the wife as 30 and minor children as 11 and 9 respectively and that the deceased was aged about 40 at the relevant time of the accident, which requires no interference. Hence, the compensation under the caption loss of income awarded by the Tribunal could be confirmed.
17. Towards loss of consortium, a sum of Rs.5000/- (Rupees five thousand only) and towards funeral expenses a sum of Rs.2000/- (Rupees two thousand only) were awarded, which requires no interference in view of the standard prevailing during the year 1994.
18. Towards loss of love and affection no compensation was awarded, hence a sum of Rs.5000/- (Rupees five thousand only) each could be awarded in favour of the claimants 2 and 3.
19. Towards transport expenses, no amount was awarded and therefore a sum of Rs.1000/- (Rupees one thousand only) could be awarded. Accordingly, the compensation is modified as under:
For loss of income -Rs. 90,000/-
For loss of consortium -Rs. 5,000/-
For funeral expenses -Rs. 2,000/-
For loss of love and affection -Rs. 10,000/-
For transport expenses -Rs. 1,000/-
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Total -Rs.1,08,000/-
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20. The Tribunal awarded 12% interest p.a.; considering the prevailing rate at that time, the interest awarded is reduced to 9% p.a.
21. In the result, this Civil Miscellaneous Appeal is dismissed and the award of the Tribunal is enhanced from Rs.97,000/- (Rupees ninety seven thousand only) to Rs.1,08,000/- (Rupees one lakh and eight thousand only), which shall carry interest at the rate of 9% p.a. from the date of M.C.O.P. till payment. Proportionately there will be variation in the allotments in favour of each of the claimants depending upon the variation in the total compensation awarded herein. No costs. Consequently, connected Miscellaneous Petitions are also dismissed.
smn To The Motor Accidents Claims Tribunal-cum-
the Subordinate Judge, Kumbakonam.