Madras High Court
National Insurance Co. Ltd. vs Ramachandran And Others on 1 October, 1991
Equivalent citations: 1992ACJ813, [1993]76COMPCAS335(MAD)
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 a motor accident which took place on September 3, 1982 and which resulted in the death of one Prithivirajan whose legal representatives are the claimants respondents Nos. 1 to 8.
2. Learned counsel for the appellant insurance company submits that he is not attacking the finding of the Tribunal below regarding the negligence of the first 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 of 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 respondents Nos. 1 to 3 liable for the abovesaid entire sum of Rs. 1,28,000. Learned counsel for the tenth respondent, the owner of the insurance company is liable in the present case only to the extent of Rs. 50,000.
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 of the Civil Procedure Code is applicable to the proceedings before the Claims Tribunal also and hence the appellate court could give the above- said relief by away of reduction of compensation as claimed by him. In support of this contention, he also relied on the decisions in Manjula Devi Bhuta v. Manjusri Raha [1968] ACJ 1 and Assam Corporation v. Binu Rani, AIR 1975 Gauhati 3. No doubt, in those two decisions, the question was whether Order 41, rule 33 of the Civil Producer Code was applicable to Motor Accidents Claims Tribunal case Certainly, Order 41, rule 33 of the Civil Procedure Code is applicable to Claims Tribunal cases. In fact, once the matter comes before this court in appeal from the Tribunal the Civil Procedure Code would be applicable just like any other first appeal which comes before this court (vide R. Govindarajulu v. S. Dharman [1986] ACJ 178 (Mad) ). But the question here is how far Order 41, rule 33 of the Civil Procedure Code can be invoked by the tenth respondent owner for reducing the compensation already granted. Such an interpretation cannot be put on Order 41, rule 33 of the Civil Procedure Code, the Supreme Court in Choudhary Sahu v. State of Bihar, , quoted the following passage from its earlier decision in Nirmala Bala Ghose v. Balai Chand Ghose, :
"The rule is undoubtedly expressed it 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 grant relief to a person who has not appealed, the power conferred Order 41, rule 33, may properly be invoked. The rule, however, does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion the court appealed from."
5. The Supreme Court, in the above referred case in Choudhary Sahu State of Bihar, , after quoting the above passage, also observed as follows (at page 100) ;
"The object of this rule is to avoid contradictory and inconsistent decisions on the same question 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 filling an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted restricted right to reopen decrees which have become final merely cause 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 not the provisions of other laws, viz., the law of limitation or the law of court-fees, etc."
6. 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 of the Civil Procedure Code and to have the quantum of compensation itself reduced. I may also add that, in the above- referred cases in Assam Corporation v. Binu Rani, AIR 1975 Gauhati 3and Manjula Devi Bhuta Manjusri Raha [1968] ACJ 1, Order 41, rule 33 of the Civil Procedure Code was invoked in the respective facts of those two cases which were similar to the illustration found under Order 41, rule 33 of the Civil Procedure Code. But, the present claim made by learned counsel for the 10th respondent is entirely different and the 10th respondent cannot invoke Order 41, rule 33 of the Civil Procedure Code for reducing the award already granted.
7. 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.