Himachal Pradesh High Court
Fao(Mva) No. 184/2017 vs Anjana And Ors on 3 September, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No.184/2017 along with FAO(MVA) Nos. 282/2017, .
283/2017, 284/2017, 285/2017 & 397/2017 Decided on: 3.9.2019
1. FAO(MVA) No. 184/2017 United India Insurance Company Ltd. ...... Appellant Vs. Anjana and ors. ..... Respondents
2. FAO(MVA) No. 282/2017 United India Insurance Company Ltd. ...... Appellant Vs. Chander Shekhar and anr. ..... Respondents
3. FAO(MVA) No. 283/2017 United India Insurance Company Ltd. ...... Appellant Vs. Devender and anr. ..... Respondents 4. FAO(MVA) No. 284/2017 United India Insurance Company Ltd. ...... Appellant Vs. ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...2...
Sachin and anr. ..... Respondents
.
5. FAO(MVA) No. 285/2017
United India Insurance Company Ltd. ...... Appellant
Vs.
Saibo Devi and ors. ..... Respondents
6. FAO(MVA) No. 397/2017
United India Insurance Company Ltd.
r ...... Appellant
Vs.
Sandhya Devi and ors. ..... Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No For the Appellant(s): Mr. Ashwani K. Sharma, Senior Advocate with Mr. Mayank Sharma, Advocate.
For the Respondents: Mr. Sudhir Thakur, Senior Advocate with Mr. Anirudh Sharma, Advocate, for the respondentsclaimants.
Tarlok Singh Chauhan (oral) Since common questions of law and facts arise for consideration in these petitions, the same were taken up 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...3...
together for hearing and are being disposed of by a common judgment.
.
2 The facts giving rise to the present cases are that the claim petitions came to be filed before the learned Tribunal on behalf of the claimants, who either lost their sole bread earner(s) or sustained injuries in the accident, which took place on 26.12.2012 near Bus Stand Sarahan at NahanShimla Road at about 5.40 P.M. involving vehicle bearing registration No.HP14 A0919 owned by Ishwar Dutt and insured with the appellant Insurance Company. The accident was attributed to the rash and negligent driving of its driver, Jai Prakash, which led to filing of an FIR under Sections 279, 337, 338 and 304 IPC against the driver, who also died in the accident.
3 The owner of the vehicle in question contested the petitions, wherein he did not deny the involvement of his vehicle in the accident at the relevant date and time, but denied that the accident had taken place due to rash and negligent driving of Jai Prakash. It was averred that the accident took place on account of mechanical failure.
4 The Insurance Company filed its separate reply, wherein preliminary objections were taken to the effect that the ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...4...
vehicle in question was being plied in violation of terms and conditions of the insurance policy as it was being plied for .
commercial purpose without holding permit and the vehicle was overloaded as 10 passengers were travelling in the vehicle at the time of accident, the driver was not having valid and effective driving licence to drive the vehicle,therefore, the Insurance Company was not liable to indemnify the insured. On merits, preliminary objections were reiterated and elaborated, therefore, need not be referred to.
5 The learned Tribunal after recording the evidence and evaluating the same, allowed the claim petitions and came to the conclusion that the accident in question had taken place due to rash and negligent driving of driver of the vehicle and since there was valid contract of insurance, therefore, the Insurance Company was liable to indemnify the owner qua the compensation amount awarded in each of the cases.
6 Aggrieved by the award(s) passed by the learned Tribunal, the Insurance Company has filed the instant appeals contending therein (i) the vehicle in question was being plied for commercial purpose as Taxi without holding a valid permit;
(2) the vehicle was overloaded as there were 10 passengers ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...5...
travelling in the same as against the seating capacity of 8+1 at the time of accident; (3) the driver of the vehicle was in an .
inebriated condition and, therefore, the Insurance Company was not liable to indemnify the owner and (4) quantum of compensation.
7 As regards the first contention, it would be noticed that specific issue to this effect was struck by the learned Tribunal, which reads as under: "Whether the offending vehicle was not meant for commercial purpose and was being driven by respondent No.1 and his driver without permit to that effect? OPR2."
8 It would be noticed that onus to prove this issue was on the Insurance Company, but then it did not choose to lead any satisfactory or convincing evidence in this regard. Apart from this, the Insurance Company has failed to establish how the vehicle in question was being plied without valid permit,which admittedly was a Taxi having seating capacity of 8+1.
9 As regards second contention, seating capacity of the vehicle was 8+1 and this is duly established on record from the perusal of copy of R.C., Ext. R1 coupled with Insurance Policy, ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...6...
Ext. RW2/A, wherein risk of 9 persons including driver was covered by said policy.
.
10 Even though, there is no evidence on record to come to a firm conclusion that there were 10 passengers travelling in the vehicle, the Insurance Company cannot avoid its liability as admittedly only 6 claim petitions arising out of the accident have been filed.
11 The Hon'ble
r Supreme Court, in United India
Insurance Company Limited vs. K. M. Poonam and ors, 2015 (15) SCC 297, while dealing with a case where a jeep with seating capacity of 6 persons including driver was carrying 15 persons fell into a ditch resulting in death of 7 persons and injured others, held that the liability of Insurance Company to pay the compensation was limited to 6 persons travelling inside the jeep only and liability to pay compensation to others was that of the owner. It would be apposite to reproduce the relevant observations as contained in para 36, which reads as under: "36. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...7...
six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of .
persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle."
12 In view of the aforesaid exposition of law, it can conveniently be held that since only 6 claimants, whose claims are otherwise covered by the insurance policy, have approached the learned Tribunal for grant of compensation, the Insurance Company is liable to indemnify the insured qua each of the liabilities.
13 Coming to the third contention, no evidence to this effect has been led by the Insurance Company. Even though, the Insurance Company has examined its Assistant Manager, Shashi Saini (RW2), but she could not prove that the driver of the vehicle was under the influence of alcohol, rather she in her cross examination, deposed that she came to know that the driver of ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...8...
the vehicle was under the influence of alcohol on the basis of the investigation conducted by the Insurance Company through R.D. .
Bashisht.
14 No doubt, the Insurance Company had examined Dr. Ruchika (RW4) to prove the postmortem report of the body of the driver, Jai Prakash, Ext.RW4/A, who deposed that blood and urine samples of the deceased driver were taken by her and handed over to the police for chemical examination.
15 HC Amar Nath was examined as RW5 to prove the report of the Chemical Examiner,Ext. RW5/A, which indicates that on chemical examination of blood sample of deceased Jai Prakash, ethyl alcohol was detected to the extent of 88.05 mg%.
16 Even though the Chemical Examiner's report, Ext.
RW5/A does indicate that the driver was definitely under the influence of liquor, however this Court in Khem Chand vs. Uma Devi, 2010(2) SLJ(HP) 1207 has held that intoxication of the driver is not a ground available to the Insurance Company under Section 149 of the Motor Vehicles Act, therefore, the liability which is statutory under Section 147 of the Act, has to be satisfied by the insurer.
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17 This legal position was thereafter reiterated in Oriental Insurance Company Ltd. vs. Sangeyum, 2016 ACJ .
1783.
18 Similar reiteration of law can be found in another judgment of this Court in Babu Ram vs. Ajay Kumar, Latest HLJ 2016(HP) 608, wherein it was held that in order to escape its liability,the Insurance Company has to plead and prove that the driver was under the state of intoxication with the knowledge and consent of the insured and and since there was no evidence in this regard,therefore, the Insurance Company was saddled with liability to indemnify the insured.
19 Adverting to the facts of the present case, the Insurance Company has led no evidence to prove that the driver of the vehicle had consumed liquor with the knowledge and consent of the insured.
20 Now, as regards the award of compensation, there can be no dispute that the compensation awarded by the learned Tribunal, in all these cases, is now required to be determined in accordance with the decision of a Constitutional Bench of the Hon'ble Supreme Court in National Insurance Co. Ltd. versus Pranay Sethi and others 2017 ACJ 2700.
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21 Why this case came to be referred to the Constitutional Bench, the answer is not difficult to find and the .
same is set out in para1 of the judgment itself which reads thus:
"Perceiving cleavage of opinion between Reshma Kumari v. Madan Mohan, 2013 ACJ 1253 (SC) and Rajesh v. Rajbir Singh 2013 ACJ 1403 (SC), both threeJudge Bench decisions, a twoJudge Bench of this Court in National Insurance Co. Ltd. v. Pushpa, (2015) 9 SCC 166, thought it appropriate to refer the matter to a larger Bench for an authoritative pronouncement, and that is how the matters have been placed before us."
22 The conflict between the judgments as extracted above was resolved by concluding that the decision in Rajesh versus Rajbir Singh, 2013 ACJ 1403 (SC) was not a binding precedent as it had not taken note of the decision in Reshma Kumari versus Madan Mohan, 2013 ACJ 1253(SC). The Hon'ble Supreme Court after considering the entire conspectus of law arrived at the following conclusions: "i) The twoJudge Bench in Santosh Devi, 2012 ACJ 1428 (SC), should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, 2009 ACJ 1298 (SC), a ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...11...
judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view .
than what has been held by another coordinate Bench.
(ii) As Rajesh, 2013 ACJ 1403 (SC) has not taken note of the decision in Reshma Kumari,2013 ACJ 1253 (SC), which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 and 50 years. In case the deceased was between the age of 50 and 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
(iv) In case the deceased was selfemployed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 and 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...12...
shall be guided by paras 14 and 15 of Sarla Verma 2009 ACJ 1298 (SC), which we have reproduced hereinbefore.
.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma, 2009 ACJ 1298 (SC), read with para 21 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures under conventional heads, namely, loss to estate, loss of consortium and funeral expenses should be Rs.15,000, Rs.40,000 and Rs.15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10 per cent in every three years."
Conclusions (iii) to (viii) are relevant for the adjudication of these cases.
23 It is thus clear from the aforesaid that the compensation henceforth to be awarded in favour of the claimants is essentially to be abide by the aforesaid conclusions, more particularly, conclusions No.(iii) to (viii) which except for conclusions No.(v) and (vi) are selfspeaking.
24 Now, as regards conclusions No. (v) and (vi), it would be apposite to extract paragraphs No.14, 15 and 21 along with table as referred to in Sarla Verma and others versus Delhi ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...13...
Transport Corporation and another, 2009 ACJ 1298 (SC) which read thus: .
"14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra's case, 1996 ACJ 831 (SC), the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be onethird (1/3rd) where the number of dependent family members is 2 to 3, onefourth (1/4th) where the number of dependent family members is 4 to 6, and onefifth (1/5th) where the number of dependent family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...14...
married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the .
mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family.
However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger nonearning sisters or brothers, his personal and living expenses may be restricted to onethird and contribution to the family will be taken as twothird.
21. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the Table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M17 for 26 to 30 years, M16 for 31 to 35 years, M15 for 36 to 40 years, M 14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two units for every five years, that is, M11 for 51 to 55 years, M9 for 56 to 60 years, M7 for 61 to 65 years and M5 for 66 to 70 years."
Age of the Multiplier Multiplier Multiplier Multiplier Multiplier deceased scale as scale as scale in specified in actually used in envisaged in adopted in Trilok second Second Schedule Susamma Trilok Chandra as column in to MV Act (as Thomas Chandra clarified in the Table in seen from the Charlie Second quantum of Schedule to compensation) MV Act (1) (2) (3) (4) (5) (6) Up to 15 15 20 years ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...15...
15 to 20 16 18 18 16 19years 21 to 25 15 17 18 17 18 .
years 26 to 30 14 16 17 18 17 years 31 to 35 13 15 16 17 16 years 36 to 40 12 14 15 16 15 years 41 to 45 11 13 14 15 14 years 46 to 50 10 12 13 13 12 years 51 to 55 9 11 11 11 10 years 56 to 60 8 10 9 8 8 years 61 to 65 6 r 8 7 5 6 years Above to 65 5 5 5 5 5 years 25 Evidently, the judgment in Pranay Sethi's case (supra) has brought about radical and fundamental changes with regard to award of compensation. For this purpose, this Court would deal with the case by drawing a comparative table of the amount actually awarded by the learned Tribunal along with modified award.
26 Bearing in mind the aforesaid exposition of law, I would first refer to the injuries cases which are FAO Nos.
282/2017, 283/2017 and 284/2017.
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FAO Nos. 282/2017, 283/2017 & 284/2017 27 In all these cases, the claimants have suffered .
fractures on their body parts and remained admitted in the hospital.
28 No exception can be taken to the award(s) passed in these cases as the compensation granted under the heads is not required to be proved through mathematical procedure. That apart, the claimants in these cases have otherwise produced majority of the medical records regarding OPD patient cards, discharge slips, medical bills etc. 29 Now adverting to the death cases which are FAO(MVA) Nos.184/2017, 285/2017 and 397/2017.
FAO No. 184/201730 The claimants are the widow, daughter, son, mother and father of the deceased Dhiraj, who was aged about 27 years at the time of accident. As per claim set up by the claimants, the deceased was working as private contractor and used to supply vegetables. The learned Tribunal assessed the monthly income of the deceased to be Rs.6,000/ and 50% increase towards future prospects was also awarded and after deducting 1/4th towards ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...17...
personal expenses of the deceased, the contribution towards family was held to be Rs.6700/ per month.
.
31 The dispute in this case is with respect to the amount awarded towards future prospects and conventional charges. The learned Tribunal has awarded an addition of 50% of the established income, whereas in terms of Pranay Sethi's case, while determining the income of the deceased, an addition of 40% of the established income could only have been awarded as the deceased was selfemployed and aged about 27 years at the time of accident.
32 Thus, on the basis of the aforesaid discussion, it can conveniently be held that the monthly income of the deceased would work out to be Rs. 6000/ and since the deceased was self employed and was aged about 27 years at the time of accident, an addition of 40% of the established income would have to be taken towards future prospects and thus, his total monthly income would work out to be Rs. 8400/ (Rs.6000+Rs.2400) and after deduction of 1/4th of the income towards his personal expenses (Rs.2100/), annual income would work out to be Rs.75,600/. In this way, the claimants, after applying multiplier ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...18...
of 17 would be entitled to Rs.12,85,200/ (75,600x17) towards loss of contribution to family.
.
33 Learned counsel for the claimants has fairly conceded that only a sum of Rs. Rs.15,000/, Rs.40,000/ and Rs.15,000/ towards conventional heads, namely, loss to estate, loss of consortium and funeral expenses would be admissible to the claimants in view of decision of the Hon'ble Supreme Court in Pranay Sethi's case (supra).
34 That apart, claimants No. 3 and 4 being mother and father of the deceased claimant have not been granted any compensation by the learned Tribunal towards loss of filial as held by the Hon'ble Supreme Court in Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chandu Ram & Ors 2018 (11) SCALE 263. Therefore, claimants No.3 and 4 would be held entitled to compensation of Rs.40,000/ each towards loss of filial.
FAO No. 285/201735 The claimants are the widow, sons, daughters, mother and father of the deceased Ravi Dutt, who was aged about 44 years at the time of accident. As per claim set up by the claimants, the deceased was working as mason. The learned ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...19...
Tribunal assessed the monthly income of the deceased to be Rs.6,000/ and 30% increase towards future prospects was also .
awarded and after deducting 1/4th towards personal expenses of the deceased, the contribution towards family was held to be Rs.5900/ per month.
36 The dispute in this case is with respect to the amount awarded towards future prospects and conventional charges. The learned Tribunal has awarded an addition of 30% of the established income, whereas in terms of Pranay Sethi's case, while determining the income of the deceased, an addition of 25% of the established income could only have been awarded as the deceased was selfemployed and aged about 44 years at the time of accident.
37 Thus, it can conveniently be held that the monthly income of the deceased would work out to be Rs. 6000/ and since the deceased was self employed and was aged about 44 years at the time of accident, an addition of 25% of the established income would have to be taken towards future prospects and thus, his total monthly income would work out to be Rs. 7500/ (Rs.6000+Rs.1500) and after deduction of 1/5th of the income towards his personal expenses (Rs.1500/), annual ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...20...
income would work out to be Rs.72000/. In this way, the claimants, after applying multiplier of 14 would be entitled to .
Rs.10,08,000/ (7200x14) towards loss of contribution to family.
38 Learned counsel for the claimants has fairly conceded that only a sum of Rs. Rs.15,000/, Rs.40,000/ and Rs.15,000/ towards conventional heads would be admissible to the claimants in view of decision of the Hon'ble Supreme Court in Pranay Sethi's case (supra).
39 That apart, claimants No.6 and 7, being mother and father of the deceased, would be held entitled to compensation of Rs.40,000/ each towards loss of filial as held by the Hon'ble Supreme Court in Magma General Insurance Co. Ltd.'s case.
40 It would be noticed that on the basis of the aforesaid calculations, the claimants are entitled to more amount than their entitlement as per the award. It would also be noticed that the claimants have not filed crossobjections or crossappeal, however, this Court in exercise of its power under Order 41 Rule 33 of the Code of Civil Procedure can always pass an enhanced award on the basis of the material available on record.
41 Order 41 Rule 33 of the Code of Civil Procedure reads as under: ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...21...
"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 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order."
42 It cannot be disputed that the object of the aforesaid rule is to empower the Appellate Court to do complete justice between the parties. This rule gives the Court ample power to make an order appropriate to meet the ends of justice. It enables the Appellate Court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though the appeal is as to part only of the decree; and such party or parties may not have filed an appeal. The necessary condition for ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...22...
exercising the power under the rule is that the parties to the proceedings are before the Court and the question raised .
properly arises out of the judgments of the lower Court. In that event, the Appellate Court can consider any objection to any part of the order or decree of the Court and set it right. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised and each case therefore must depend upon its own facts. Although, the general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily, the Appellate Court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal. But in exceptional cases, the rule enables the Appellate Court to pass such decree or order as sought to have been passed even if such decree or order would be in favour of parties who have not filed any appeal.
43 The scope of the rule has repeatedly come up for consideration before the Hon'ble Supreme Court, but I need only refer to the judgment rendered in Pralhad and others vs. State of Maharashtra and another (2010) 10 SCC 458 wherein it was held:
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"18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate Court is .
empowered to pass any decree or 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. Therefore, the power is very wide and in this enabling provisions, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression "order ought to have been made" would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
19. In fact, the ambit of this provision has come up for consideration in several decisions of this Court. Commenting on this power, Mulla (Civil Procedure Code, 15th Edn., p. 2647) observed that this Rule is modeled on Order 59 Rule 10 (4) of the Supreme Court of Judicature of England, and Mulla further opined that the purpose of this Rule is to do complete justice between the parties.
20. In Banarsi vs. Ram Phal (2003) 9 SCC 606, this Court construing the provisions of Order 41 Rule 33 CPC held that this provision confers powers of the widest amplitude on the appellate Court so as to do complete justice between ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...24...
the parties. This Court further held that such power is unfettered by considerations as to what is the subject .
matter of the appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the Court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party. (See SCC p. 619, para 15 : AIR para 15 at p. 1997). It has also been held by this Court in Samundra Devi vs. Narendra Kaur (2008) 9 SCC 100 SCC (para 21), that this power under Order 41 Rule 33 CPC cannot be exercised ignoring a legal interdict.
22. In view of the aforesaid interpretation given to Order 41 Rule 33 CPC by this Court, we are of the opinion that the High Court denied the relief to the appellants to which they are entitled in view of the Constitution Bench decision in K.S. Paripoornan vs. State of Kerala, (1994) 5 SCC
593.by taking a rather restricted and narrow view of the scope of Order 41 Rule 33 CPC and also on a misconstruction of the ratio in Paripoornan."::: Downloaded on - 29/09/2019 03:04:52 :::HCHP
...25...
FAO No. 397/201744 The claimants are the widow, son, daughter and .
mother of the deceased Devender Singh, who was aged about 39 years at the time of accident. As per claim set up by the claimants, the deceased was working as an agriculturist. The learned Tribunal assessed the monthly income of the deceased to be Rs.6,000/ and 50% increase towards future prospects was also awarded and after deducting 1/4th towards personal expenses of the deceased, the contribution towards family was held to be Rs.6700/ per month.
45 The dispute in this case is with respect to the amount awarded towards future prospects and conventional charges. The learned Tribunal has awarded an addition of 50% of the established income, whereas in terms of Pranay Sethi's case, while determining the income of the deceased, an addition of 40% of the established income could only have been awarded as the deceased was selfemployed and aged about 39 years at the time of accident.
46 Thus, it can conveniently be held that the monthly income of the deceased would work out to be Rs. 6000/ and since the deceased was self employed and was aged about 39 ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...26...
years at the time of accident, an addition of 40% of the established income would have to be taken towards future .
prospects and thus, his total monthly income would work out to be Rs. 8400/ (Rs.6000+Rs.2400) and after deduction of 1/4th of the income towards his personal expenses (Rs.2100/), annual income would work out to be Rs.75600/. In this way, the claimants, after applying multiplier of 15 would be entitled to Rs.11,34,000/ (75600x15) towards loss of contribution to family.
47 Learned counsel for the claimants has fairly conceded that only a sum of Rs. Rs.15,000/, Rs.40,000/ and Rs.15,000/ towards conventional heads would be admissible to the claimants in view of decision of the Hon'ble Supreme Court in Pranay Sethi's case (supra).
48 That apart, claimant No.4, being mother of the deceased, would be held entitled to compensation of Rs.40,000/ towards loss of filial as held by the Hon'ble Supreme Court in Magma General Insurance Co. Ltd.'s case.
49 In view of the aforesaid discussion, the compensation that would eventually work out is as under: ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...27...
FAO (MVA) No. 184/2017Sr. Award passed by the Modified Award by this Court .
No. Tribunal
1. Loss of dependency: Loss of dependency: Rs.12,85,200/ Rs.13,66,800/ Loss of consortium to wife Nil of the deceased =Rs.50,000/.
2. Conventional charges Rs.15,000/, Rs.40,000/ and including funeral expenses= Rs.15,000/ towards conventional Rs50,000/ heads, namely, loss to estate, loss of consortium and funeral expenses.
3. Rs. 40,000/ each towards loss of filial to claimants No.3 and 4.
4. Total = Rs.14,66,800/ Total = Rs.14,35,200/ FAO (MVA) No. 285/2017 Sr. Award passed by the Modified Award by this Court No. Tribunal
1. Loss of dependency: Loss of dependency: Rs.10,08,000/ Rs.9,91,200/ Loss of consortium to wife Nil of the deceased =Rs.50,000/.
2. Conventional charges Rs.15,000/, Rs.40,000/ and including funeral expenses= Rs.15,000/ towards conventional Rs50,000/ heads, namely, loss to estate, loss of consortium and funeral expenses.
3. Rs. 40,000/ each towards loss of filial to claimants No.3 and 4.
4. Total = Rs.10,91,200/ Total = Rs.11,58,000/ ::: Downloaded on - 29/09/2019 03:04:52 :::HCHP ...28...
FAO (MVA) No. 397/2017Sr. Award passed by the Modified Award by this Court .
No. Tribunal
1. Loss of dependency: Loss of dependency: Rs.11,34,000/
Rs.12,06,000/
Loss of consortium to wife Nil
of the deceased
=Rs.50,000/.
2. Conventional charges Rs.15,000/, Rs.40,000/ and
including funeral expenses= Rs.15,000/ towards conventional
Rs50,000/ heads, namely, loss to estate, loss of
consortium and funeral expenses.
3. Rs. 40,000/ each towards loss of
filial to claimant 4.
4. Total = Rs.13,06,000/ Total = Rs.12,44,000/
50 As regards rate of interest and liability, since the
same have not been questioned, therefore, warrant no
interference.
51 Accordingly, the appeals are allowed and the
impugned award(s) passed by the learned Tribunal are modified to the above extent. Pending application(s), if any, also stands disposed of. The parties are left to bear their own costs.
3.9.2019 (Tarlok Singh Chauhan)
(pankaj) Judge
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