Madras High Court
The Oriental Insurance Company Ltd vs Sellammal on 31 October, 2014
Author: V.Dhanapalan
Bench: V.Dhanapalan, V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:31.10.2014 CORAM THE HONOURABLE MR. JUSTICE V.DHANAPALAN AND THE HONOURABLE MS. JUSTICE V.M.VELUMANI Civil Miscellaneous Appeal (MD) No.164 OF 2005 The Oriental Insurance company Ltd., Malik Mahal Head Post Office Junction, Nagercoil District. ... Appellant Vs. 1.Sellammal 2.L.Thangavel 3.Robinson 4.Ramakrishnan ... Respondents PRAYER : Civil Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 04.08.2004 on the file of Motor Accidents Claims Tribunal, Chief Judicial Magistrate Court, Karur in M.C.O.P.No.510 of 2001. !For Appellant : Mr.A.K.Baskarapandian ^For Respondents : Mr.G.Venugopal for R1&R2 :JUDGMENT
(Judgment of the Court was delivered by V.DHANAPALAN, J.) This Civil Miscellaneous Appeal has been directed against the Award of the Motor Accident Claims Tribunal made in M.C.O.P.No.510 of 2001, dated 04.08.2004, wherein the Tribunal has awarded a compensation of Rs.19,30,000/- . As against which, the Appellant Insurance Company is before this Court with this appeal.
2. According to the learned counsel for the appellant Insurance Company, the Tribunal relied upon the evidence of P.W.1 in respect of occupation and income of the deceased, fixing the annual income as Rs.2,40,000/-. The learned counsel would submit that the Tribunal has failed in taking into account that no documentary evidence was produced to prove that the partnership firms were dissolved, after the death of the deceased. He further submitted that source of income from the partnership firms and agricultural lands are not available to the claimants, even after the death of the deceased. Also questioning the award of compensation of Rs.4,74,000/- towards medical expenses, fixing the age of the deceased as 50 years and applying the multiplier as '9' and in awarding Rs.14,40,000/- towards loss of income and Rs.3,000/- for loss of consortium, the Appellant Insurance Company has filed this Civil Miscellaneous Appeal.
3. The case put forth by claimants before the Tribunal is as follows:
The case of the respondents / claimants is that on 02.05.2000, at 15 hours, the deceased Lakshmana Gounder was travelling in a TVS 50 Motorcycle bearing registration No.TN 47 -6800 from South to North in Karur ? Madurai bypass Road, on the extreme left side of the road. When he was proceeding towards North near Abi Petrol Agencies, the vehicle, owned by the first respondent, bearing registration No.TN.74-F-6737 driven by the second respondent in a rash and negligent manner, without blowing horn and without following traffic rules with high speed, came from North to south on his extreme left side of the road and dashed against the deceased. As a result of which, the deceased Lakshmana Gounder sustained multiple grievous head injuries, bodily injuries and abrasion all over the body. Subsequently, the deceased was given first aid at Government Hospital, Karur. Then he was taken to Kovai Medical Centre at Coimbatore for further treatment, where he was treated as an inpatient, for the period from 02.05.2000 to 03.06.2000. In spite of the treatment, he died on 13.06.2000.
3.1. It was claimed that he was hale and healthy at the time of accident and he was aged 52 years at the time of his death and the accident took place only due to the rash and negligent driving of the second respondent. It was claimed that the deceased Lakshmana Gounder owned 11.41.5 Hectares of land at Saminathapuram, Murnur Village, Aravakkurichi Taluk and he is also a partner of the Firm, 'Arun Traders and Arun Textiles', having its business at Thirunagar, Kamarajapuram West, Karur and he was earning an agricultural income of Rs.1,25,000/- per annum and business income of Rs.2,44,533/- per annum, which includes, bonus, salary, interest and profit. If the accident would not have been happened, the deceased would have survived for more than 90 years. He was having sound knowledge in agricultural operation and also in textile business. Due to the sudden demise of the deceased, the respondents / claimants have lost protection, affection and the service rendered by the deceased. He was the breadwinner of the family and used to contribute all the income to the family.
3.2. As to the accident, a case was registered in Pasupathipalayam Police Station against the 2nd respondent under Sections 279 and 337 the Indian Penal Code. Subsequently the case was altered into Sections 279, 337 and 304A IPC. Based on the complaint, a case was registered against the third respondent, in Crime No.187 of 2000 for the offence under Sections 279, 337 and 304A IPC and the 2nd respondent also admitted his offence, as per the judgment of the learned Judicial Magistrate, No.I, Karur, in C.C.No.540 of 2000. To the dependency, earnings, experience, the claimants have to be compensated. Therefore, they filed a Claim Petition before the Tribunal, claiming a sum of Rs.50,00,000/- as compensation.
3.3. The above claim was resisted by the Insurance Company by filing counter affidavit stating that the deceased had sustained injuries only due to the carelessness and negligent driving of his motorcycle and without knowing the rudiments of driving, he attempted to cross the road suddenly and dashed against the van, bearing Registration No.TN74-D-6737 and it is the sole reason for the accident. The deceased did not know to drive any kind of motorcycle and he has no valid driving licence and there is contributory negligence on the part of the deceased. The alleged treatment to the said Lakshmana Gounder at Kovai Medical Hospital Coimbatore and the huge medical expenses of Rs.2,63,777/- were not admitted and to be strictly proved by documentary evidence. The age alleged by the respondent/petitioners and the alleged longevity upto 90 years and having lands to an extent of 11.41.5 Hectares, annual income of Rs.2,44,533/- are all denied as false. Since the deceased is not the owner of the motorcycle, the claimants are not entitled to claim compensation and the amount claimed is huge and they are claiming compensation by furnishing incorrect information. Therefore, they prayed for the dismissal of the claim petition.
3.4. The Tribunal after going through the oral and documentary evidence and on noticing various factors involved in it had come to the conclusion that as to the negligence part, it has been fixed against the 2nd respondent Driver of the van, bearing Registration No.TN 74-D-6737 and awarded a total compensation of Rs.19,30,000/-. As against which, the insurer has preferred the present appeal.
4. Mr.A.K.Baskarapandian, learned counsel for the appellant would vehemently contend that the age of the deceased was not determined by the Tribunal in accordance with law and the principle laid down and also the income as to the agricultural part and the partnership firm have been assessed without any materials and no proof of income has been produced before it. Therefore, the compensation awarded by the Tribunal is excessive and against the principle of law.
5. On the other hand, Mr.G.Venugopal, learned counsel for the respondents/claimants, would contend that the Tribunal, on consideration of oral and documentary evidence and giving due credence to the material proof placed before it, had come to the clear conclusion that the compensation awarded by the Tribunal is fair, just and reasonable and it cannot be found fault with.
6. We have heard the learned counsel for the parties and perused the records carefully.
7. It is not in dispute as to the accident part and it has been narrated by the claimants before the Tribunal. But, the same has been resisted by the other side as to the negligence part. But, the Tribunal has given due consideration to the various evidences both oral and documentary and come to the clear conclusion, as to the negligence part rightly. The appellant has not raised the negligence part as a question in the grounds of appeal. Therefore, we are not inclined to traverse on the question of negligence.
8. What is mainly focussed by the learned counsel for the appellant is that the age factor, which has been looked into by the Tribunal by taking into account the oral evidence of P.W.1, postmortem report and Ex.D1 Income Tax letter from the Income Tax Department and as to the claimants part proof of Ex.A34 Birth Certificate.
9. From the above evidences, it is seen that the age of the deceased was 52 years, as per the Birth Certificate produced by the claimants and the postmortem certificate in Ex.A2, the age of the deceased, would reveal that the deceased age was 65 years, at the time of accident and Ex.B2, the letter of communication received from the Income Tax Officer would indicate that the confirmation of date of birth of the deceased, namely, Lakshmana Gounder, as per the office record, the date of birth is 15.10.1937 and therefore, it is 62 years. As to the documentary evidences, which have been placed for consideration before the Tribunal, the claimants made reliance on the part of the birth certificate and postmortem report are the two documents proved by taking the oral examination of the author of the documents and in the absence of such evidences, we cannot give much credence to the two of the documents, which have been relied on by them before the Tribunal. But, the letter of information received from the Income Tax Department, wherein, it was disclosed by the deceased that his date of birth as 15.10.1937 and that the document has been exhibited before the Tribunal. Therefore, the Tribunal has rightly held that the age of the deceased as 50, cannot be accepted as acceptable factor. Therefore, as to the age determination, it could be acceptable material as a proved document is the disclosure of the deceased before the Income Tax Department, i.e. his date of birth as 15.10.1937 and accordingly, the age of the deceased would be fixed as 62 years. Therefore, the view taken by the Tribunal is not correct, in our opinion. His information to the Income Tax Department, as an assessee and obtained Pancard No.A-1402/I(1)KPR/99-2000, has been confirmed by the Income Tax Department and accordingly, we determine the age of the deceased as 62 years.
10. As to the income aspect, the claimants have made all their efforts to give oral evidences and also relied on income tax proof. They claimed that the deceased was an agriculturist having 11.41.5 Hectares of land cultivated continuously and derived income from the lands. In respect of agriculture, the claimants have filed four documents Exs.A12, A13, A31 and A32, the chitta, Adangal, patta passbook copies. As to the claim of the partnership firm, besides their oral evidences, Exs.A8, A9, A10 and A11, Form A of Aruna Textiles, partnership documents of the said company, Form A of Aruna Traders and partnership of the said Traders are all placed and claimed Rs.1,25,000/-
income per annum towards agricultural income and Rs.2,44,533/- towards the income from the partnership firm.
11. It is contended that after the loss of estate, the claimants are without any support. But it could be a factor as per the law laid down by the Hon'ble Supreme Court and this Court that normally the estate as regards the partnership will pass on to the claimants and similarly the lands, which have been cultivated will continue to be in their estate and operations will be taken. But, there may be a lesser production and the income may vary from time to time and that could not be a factor to deny what would be the normal income which includes, bonus, salary, interest and profit.
12. Though there was a claim for loss of earning of Rs.25 lakhs, towards pain and sufferings Rs.12,50,000/- and in total, Rs.50 lakhs as compensation together with interest has been claimed, the Tribunal having considered those factors and have taken the income of the deceased as Rs.5,000/- per month and calculated the annual income as Rs.60,000/- and applied 11 multiplier, taking into account Ex.A18, the Income Tax report for the year 2000-2001 and Exs.A31 and 32 copies of the patta passbook, arrived the income as Rs.2,40,000/- per annum and for a month, it has been held that Rs.20,000/- as income and accordingly, for the loss of dependency has calculated as Rs.2,40,000/- and applied 9 multiplier and computed compensation as Rs.21,60,000/- after deducting 1/3rd for personal expenses, Rs.14,40,000/- awarded towards the pecuniary aspect.
13. As to the non pecuniary aspect, the amount awarded towards various heads like for medical expenses Rs.4,74,000/-, as per Exs.A21 to 24, viz., medical bills etc., and therefore, the Tribunal has rightly calculated the expenses for medical treatment. Therefore, we confirm that part of the compensation.
14. As far as loss of consortium is concerned, a sum of Rs.3,000/- has been awarded and for funeral expenses, Rs.3,000/- and for loss of love and affection Rs.10,000/- has been awarded. Altogether, the Tribunal arrived at the total compensation as Rs.19,30,000/-.
15. As per the Judgment of the Hon'ble Supreme Court in Smt.Sarla Verma and others -vs- Delhi Transport Corporation and another reported in (2009(2)TNMAC 1), the correct multiplier would be '7'. However, the Tribunal has adopted the multiplier as '9'. If that could be the position, accepting the income arrived at by the Tribunal as Rs.20,000/- per month, on both the counts, taking into documentary proof of evidence, which has been considered and the amount of Rs.20,000/- fixed by the Tribunal as the monthly income of the deceased and applying the multiplier, '7' and deducting 1/3rd expenses, it would come to Rs.11,20,000/- towards loss of dependency. Accordingly, we determine the compensation as to the pecuniary part as Rs.11,20,000/-.
16. As to the non pecuniary compensation, the amount awarded by the Tribunal in respect of medical expenses are confirmed by us and therefore, the amount of Rs.4,74,000/- to be added to the above.
17. We would like to enhance the amount of love and affection as Rs.15,000/- to each claimant and as such, Rs.30,000/- for loss of love and affection.
18. Also, a sum of Rs.3,000/- was awarded under the head, 'funeral expenses' is certainly on the lower side. In the case of Rajesh and others vs. Rajbir Singh and others (cited supra), the Hon'ble Supreme Court, while awarding compensation under the head funeral expenses has held as under:
"18. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head "funeral expenses". The "price index", it is a fact has gone up in that regard also. The head "funeral expenses" does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is a follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head "funeral expenses", in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-."
Taking note of the ratio laid down in the above ruling, we find it just and reasonable to enhance the compensation under the head 'funeral expenses' and accordingly, it is enhanced to a sum of Rs.5,000/-.
19. As far as the consortium is concerned, compensation of Rs.3,000/- awarded under the head 'loss of consortium to the 1st claimant', is on the lesser side. The Hon'ble Supreme Court in the case of Rajesh and others vs. Rajbir Singh and others, reported in 2013 (2) TN MAC 55 (SC) was pleased to hold as under:
?20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi v. National Insurance Company Limited and others, 2012 (2) TN MAC 1 (SC). We may, therefore, revisit the practice of awarding compensation under conventional heads:
Loss of Consortium to the spouse, Loss of Love, care and guidance to children and Funeral Expenses. It may be noted that the sum of Rs.2,500/- to Rs.10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma and others v. Delhi Transport Corporation and another, 2009 (2) TN MAC 1 (SC), it was held that compensation for Loss of Consortium should be in the range of Rs.5,000/- to Rs.10,000/-. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non pecuniary damage for Loss of Consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By Loss of Consortium, the Courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the Courts award at least rupees one lakh for Loss of Consortium.?
In view of the above decision, we are not satisfied with the decision of the Tribunal and hence, we enhance the compensation of loss of consortium as Rs.25,000/- to the 1st claimant/wife.
20. Though, no Cross-Objection is filed by the claimants herein, this Court taking note of the facts and circumstances of the case, has thought it fit to enhance the compensation awarded by the Tribunal. It is well settled that Order XLI Rule 33 of the Code of Civil Procedure empowers the Appellate Court to grant relief to a person who has neither appealed nor filed any cross-objections. The object of this provision is to do complete justice between the parties. Order XLI Rule 33 of the Code of Civil Procedure has been discussed time and again by the Supreme Court in the following cases:
(i) Pannalal v. State of Bombay, AIR 1963 SC 1516, in which, it has been held as follows:
?On the facts of the present case, we have come to the conclusion that it was not open to the plaintiff appellant before the High Court to file any cross-objection directed against the other defendants who were- correspondents. The High Court was therefore wrong in refusing to consider what relief, if any, could be granted to the plaintiff under the provisions of Or. 41, r. 33, Civil Procedure Code. Learned Counsel who appeared for the Gondia Municipality in Civil Appeal No. 209 of 1961, relied on the decision of the Privy Council in Anath Nath v. Dwarka Nath (1), for his contention that rule 33 could not be rightly used in the present case. In that case the plaintiff challenged a revenue sale as wholly void for want of jurisdiction and bad for irregularities and further contended that the respondent had been guilty of fraud or improper conduct to the prejudice of his co-owners in the estate. The Trial Court rejected the plaintiff's case that the sale was void for want of jurisdiction and bad for irregularities but accepted the other contention and gave the plaintiff a decree. On appeal, the High Court held that no fraud -or improper conduct towards co-owners in respect of the revenue sale had been proved against respondent No. 1. The High Court refused to grant any relief to the plaintiff on the other ground which had been rejected by the Trial Court in the view that it was no longer open to the plaintiff who had not filed any cross-objections to the decree of the Trial Court to maintain that the revenue (1) A.I.R. 1939 P.C. 86?
(ii) Rameshwar Prasad v. M/s Shyam Beharilal Jagannath, (1964) 3 SCR 549, in which, it has been held as under:
?17. ?...... Rule 33 really provides as to what the Appellate Court can find the appellant entitled to. It empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and -thus could have reference only to the nature of the decree or Order in so far as it affects the rights of the appellant. It further empowers the Appellate Court to pass or make such further or other decree or Order as the case may require. The Court is thus given wide discretion to pass such decrees and Orders as the interests of justice demand. Such a power is to be exercised in exceptional cases when its non- exercise will lead to difficulties in the adjustment of rights of the various parties.?
(iii) Nirmala Bala Ghose v. Balai Chand Ghose, AIR 1965 SC 1874, in which, in paragraph Nos.22 and 23, it has been held thus:
?22.In this appeal, the two deities are also impleaded as party respondents, but the deities have not taken part in the proceeding before this Court, as they did not in the High Court. The decree against the two. deities has become final, no appeal having been preferred to the High Court by the deities. It is not open to Nirmala to challenge the decree insofar as it is against the deities, because she does not represent the deities. The rights conferred by the deed Ext. 11 upon Nirmala are not affected by the decree of the Trial Court. She is not seeking in this appeal to claim a more exalted right under the deed for herself, which may require reexamination even incidentally of the correctness of the decision of the Trial Court and the High Court insofar as it relates to the title of the deities. It was urged, however, that apart from the claim which Nirmala has made for herself, the Court has power and is indeed bound under O. 41 r. 33 Code of Civil Procedure to pass a decree, if on a consideration of the relevant provisions of the deed, this Court comes to the conclusion that the deed operates as an absolute dedication in favour of the two deities. Order 41 r. 313, insofar as it is material, provides:
"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:"
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 O. 41 r. 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.
23. The two claims made against Nirmala and the deities in suit No. 67 of 1955, though capable of being joined in a single action were distinct.
Against the deities it was claimed that the property was partially dedicated in their favour; against Nirmala it was claimed that she was merely a benamidar for the settlor Balai and that she was not a Shebait under the deed of settlement. The High Court has passed a decree declaring that dedication in favour of the deities is partial and has further held, while affirming her right to be a Shebait that Nirmala was merely a benamidar in respect of the properties settled by the deed. There was no inconsistency between the two parts of the decree, and neither in the High Court nor in this Court did Nirmala claim a right for herself which was larger than the right awarded to her by the decree of the Trial Court. In considering the personal rights claimed by Nirmala under the deed Ext. 11, it is not necessary, even incidentally, to consider whether the deities were given an absolute interest. There were therefore two sets of defendants in the suits and in substance two decrees though related were passed. One of the decrees can stand apart from the other. When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under O. 41 r. 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41 r. 33 is primarily intended to confer power upon the appellate Court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. We do not think that power under O. 41 r. 33 of the Code of Civil Procedure can be exercised in this case in favour of the deities.?
(iv) Giani Ram v. Ramjilal, AIR 1969 SC 1144, in which, in paragraph Nos.8 and 9, it has been held as follows:
?8. Order 41, r. 33 of the Code of Civil Procedure was enacted to meet a situation of the nature arising in this case. In so far as it is material, the rule provides :
"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 94 9 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'. The expression "which ought to have been passed" means "which ought in law to have beep passed". If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the subordinate court, it may Pass or make such further or other decree or order as the justice of the case may require
9. If the claim of the respondents to retain any part of the property after the death of Jwala is negatived, it would, be perpetrating gave injustice to deny to the widow and the two daughters, their share in the property to which they are in law entitled. In our view, the case was one in which the power under 0. 41, r. 33,. Code of Civil Procedure ought to have been exercised and the claim not only of the three sons but- also of the widow and the two, daughters ought to have been decreed.?
(v) Harihar Prasad Singh v. Balmiki Prasad Singh, (1975) 2 SCR 932, [1975 SC 733], in which, in paragraph Nos.35 and 36, the Supreme Court has held as hereunder:
?35.... We think that the conclusion of the learned Judges of the High Court was right. Against the same decree passed by the learned Subordinate Judge there were three appeals. In one appeal, that is F.A. No. 326 of 1948, Nirsu Prasad Singh was impleaded as a party but not in the other two appeals. F.A. No. 326 of 1948 was filed only by some of the defendants in the suit. It was, therefore, possible by the application of the provisions of O.41 r. 4 and r.33 to have allowed the appeal in full and given relief not merely to the appellants in F.A. 326 but also to the appellants in F.As 332 and 333 assuming that they had not filed these appeals, The utmost that can be said is that the effect of the failure to implead Nirsu Prasad Singh as a respondent in F.As. 332 and 333 is that these two appeals will have to fail but that does not mean that F.A. 326 has also to fail. It is not even a case where the appellants in F.As. 332 and 333 had not taken the trouble of filing an appeal and therefore it can be said that they should not be given the benefit of the appeal filed by the appellants in F.A. 326. They had filed appeals in order to establish their rights. It was by an oversight in filing those appeals that they had failed to implead Nirsu Prasad Singh as a party. To such a case O.41, r.33 clearly applies.
36. The cases where the provisions of O.41, r.33 can be applied have, it we may say so, been set out correctly after a very full discussion by a Bench of the High Court of Madras in its decision in Krishna Reddy v.
Ramireddi (AIR 1954 Mad.848). Speaking through Venkatarama Aiyar, J., as he then was, the Court observed "Though O. 41, R. 33 confers wide and unlimited jurisdiction on Courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well defined principles in accordance with which that jurisdiction should be exercised. Normally, a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with. the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under O. 41, R.33.
But there are well recognized exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties. A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. A third class of cases is when the relief prayed for is single and indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory. This however, is not an exhaustive enumeration of the class of cases in which courts could interfere under O.41, R.33. Such an enumeration would neither be possible nor even desirable.
Considering the question on principle, when a decree is in substance a combination of several decrees against several defendants, there is no reason why an appeal presented by one of the defendants in respect of his interest should enure for the benefit of the other defendants with reference to their interests.
Thus, where a reversioner files a suit to recover possession of his share of many items of properties which are held by different defendants under different alienations, some of which might be valid and others not, there is no community of interest between them. The plaintiff could have filed a separate suit in respect of each item and impleaded as defendants therein only the alienee interested in that item. In that event, if all the suits were decreed but an appeal were to be preferred against the decree in only one of them and that appeal is allowed, that would not operate as reversal of the decrees in the other suits; not would there be any power in the Court to set aside those decrees under O.41, R. 33. It would not make any difference when the plaintiff has, for convenience, combined several suits into one."
(vi) Mahant Dhangir v. Madan Mohan, (1988) [1 SCR 679 AIR 1988 SC 54] ?15. ..... If the cross-objection filed under R. 22 of 0.41 CPC was not maintainable against the co-respondent, the Court could consider it under R. 33 of 0.41 CPC. R. 22 and R. 33 are not mutually exclusive They are closely related with each other. If objection cannot be urged under R. 22 against co- respondent, R. 33 could take over and come to the rescue of the objector. The appellate court could exercise the power under R. 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 R. 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 R. 33 of O. 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 R. 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.?
(vii) State of Punjab v. Bakshish Singh, (1999) 8 SCC 222, wherein, the Hon'ble Supreme Court has held in paragraph Nos.7, 8 and 9 as follows:
?7.In this case, what we propose to do would be fully in consonance with the provisions of Order XLI Rule 33 of the Code of Civil Procedure 1908 which provides as under:
ORDER XLI ? Appeals from Original Decrees
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?.
8.This provision gives very wise power to the appellate Court to do complete justice between the parties and enables it 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.
9.The discretion, however, has to be exercised with care and caution and that too in rare cases where there have been inconsistent findings and an order or decree has been passed which is wholly uncalled for in the circumstances of the case. The appellate Court cannot, in the grab of exercising power under Order XLI Rule 33, enlarge the scope of the appeal.
Whether this power would be exercised or not would depend upon the nature and facts of each case.?
21. Section 168 of the Motor Vehicles Act, 1988 empowers the Court to award such compensation as appears to be just which has been interpreted to mean just in accordance with law and it can be more than the amount claimed by the claimants. The provisions of the Motor Vehicles Act, 1988 are clearly a beneficial legislation and hence should be interpreted in a way to enable the Court to assess just compensation. The scope of Order XLI Rule 33 of the Code of Civil Procedure and the power of the High Court to enhance the award amount in accident cases in the absence of cross-objections has been discussed by the Supreme Court in Nagappa v. Gurudayal Singh, AIR 2003 SC 674, where the Apex Court has held that the Court is required to determine just compensation and there is no other limitation or restriction for awarding such compensation and in appropriate cases wherefrom the evidence brought on record if the Tribunal/Court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award and would empower the Court to enhance the compensation at the appellate stage even without the injured filing an appeal or cross- objections.
22. In Oriental Fire And General Insurance Co. Ltd. v. Amarsing Pratapsing Sikliker, I (1993) ACC 627, the Division Bench of Gujarat High held as under:-
?15. Unfortunately, in a case where the claimant is awarded an amount of Rs. 1,00,000/- interest only at the rate of 6% per annum from the date of the application till realisation was awarded from the opponents. Cross- objections are not filed. In view of the peculiar facts and circumstances, we are of the opinion that the powers of this court under Order 41, Rule 33 of the Civil Procedure Code ('Code' for short) should be exercised in absence of cross-objections so as to enhance the rate of interest. The learned counsel for the appellant has contended that this is not a fit case wherein this court should exercise its discretion to enhance the rate of interest from 6% per annum on the amount of compensation. Thus, it is submitted that this is not a fit case where the Tribunal has failed to exercise the discretion for award of interest. In other words, it is contended that mere award of lesser rate of interest cannot be said to be a sufficient ground so as to call for the exercise of powers of this court under Order 41, Rule 33 of the Code. This submission is seriously controverted by the learned counsel for the claimant.
17. It becomes very clear from the aforesaid provisions that the appellate Court is empowered to grant adequate relief so as to do substantial justice between the parties even in absence of cross-objections or appeal.
Considering the scope of this rule and the factual scenario emerging from the evidence on record, we are of the opinion that the rate of interest is required to be upwardly revised even in absence of cross-objections or appeal at the instance of the original claimant, while exercising the powers of this court under Order 41, Rule 33 of the Code. Rule 33 is, primarily, intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed. We are reminded of the observations made by the Rajasthan High Court in the case of Municipal Board, Mount Abu v. Hari Lal, reported at 1988 ACJ 821 = II (1981) ACC 397 Raj.
?Should the courts be silent spectators and feel helpless and impotent by not redressing injustice and by tolerating such grave injustice simply because due to the human values for compensation which could be valued and imagined by the advocate drafting the petition were too low or the appellant's inability to pay the court fee which may be a more tangible ground for putting the reduced claim. Inadequate claim has been made at both levels of the original court and the appeal. I have repeatedly observed in various decisions, e.g., Pista Aggarwal's case and Rao Dheer Singh's case that in adjudicating compensation cases, the claim case should not be considered like those of easement or mortgage or property dispute. For social welfare legislation of a State wedded to socialism and the Constitution's focus is on social injustice not only in the preamble, but in directive principles which are to be enforced by passing legislation like the Fatal Accidents Act or Motor Vehicles Act or other alike social welfare statutes the approach should be liberal, humanistic, non-technical and equitable.?
The underlying purport and design of the provisions of Order 41, Rule 33 would clearly go to show that the Parliament has enacted such a provision with a view that the court could rise to the occasion and render substantial justice between the parties even in absence of cross-objections or appeal. Thus, the framers of the Code, who had hardly any concept of social justice then in that period of 1908, had enacted under Order 41, Rule 33 that even if the appellant may not have made a perfect claim the court should not become silent spectator and remain impotent to give appropriate relief to one who rightly deserves the potentiality. All the courts should deliver justice according to the needs of the litigants and the circumstances emerging from the evidence on record, has been thus recognised by the provisions incorporated in Order 41, Rule 33 of the Code. Therefore, in absence of the cross-objections by the claimant, this court can invoke the provisions of Order 41, Rule 33 even if required, suo motu and enhance the compensation or rate of interest. In the case of National Insurance Co. Ltd. v. Tulsi Devi, reported in 1988 ACJ 962 it was held by the Rajasthan High Court that under Order 41, Rule 33 of the Code, the appellate court can saddle the insurer with enhanced liability.
18. In the case of Maharashtra State Road Trans. Corporation v. Kamalabai, reported in 1989 ACJ 750 where the claimants neither filed an appeal nor preferred cross-objection but urged the appellate court to grant higher rate of interest taking aid of Order 41, Rule 33 of the Code, it would be appropriate to reproduce the relevant observations of the Bombay High Court: ?It is well settled that provisions of Order 41, Rule 33 of the Code can be resorted to ?ex debito justitiae?, i.e., to do justice to the parties in exceptional cases by varying the decree in favour of the respondents although they might not have preferred any appeal against the decree.?
19. In the case of Sone Ram v. Jayaprakash reported in AIR 1986 MP 21, the High Court of Madhya Pradesh under Order 41, Rule 33 of the Code enhanced the compensation granted by the Tribunal even though no appeal was preferred by the claimant. Similarly, in the case of Sewaram alias Sewan v. Nanhe Khan alias Asgar Beg reported in 1987 ACJ 354 (MP), the High Court of Madhya Pradesh awarded 10% interest on the compensation amount in absence of appeal or cross-objection by the claimants. Likewise, Rajasthan High Court in the case of Rajasthan State Road Transport Corporation v. Manumati Mahamia reported in 1987 ACJ 1045 (Rajasthan), enhanced the rate of interest to 12 per cent instead of 6% granted by the Tribunal from the date of the application till realisation.
20. In our opinion, the powers granted under the provisions of Order 41, Rule 33 of the Code are widest in amplitude and could be exercised in favour of the respondents notwithstanding that the respondents or claimants have not filed any cross-objection or appeal. The power of the Tribunal to award interest is provided in Section 171 of the Motor Vehicles Act, 1988 (corresponding Section 110-CC of the Motor Vehicles Act, 1939), where any court or Claims Tribunal allows claim for compensation made under this Act, such court or Tribunal may direct that in addition to the amount of compensation, simple interest shall also be paid at such rate and from such date but not earlier than making such application in this behalf. Thus, a wide discretion is given to the Tribunal for awarding rate of interest while granting the amount of compensation. Motor Vehicles Act is, undoubtedly, a welfare legislation. Needless to reiterate that whenever unfortunate victims of road accident or the dependants of the deceased victims enter the thresholds of the court for justice, they should not be overburdened with the technicalities or strict pleadings of the law applicable in other civil cases. In fact, most of the accident victims in our country are pedestrians or cyclists, and most of them are illiterate and come from poor strata of the society and suffering from poverty and ignorance. Considering the benevolence in the provisions of the Motor Vehicles Act and the facts and circumstances emerging from the record of the cases on hand, we are of the opinion that the Tribunal has seriously erred in awarding rate of interest of 6 per cent only in a serious case of disintegration of the bodily frame of the claimant.
21. In view of the facts and circumstances and aforesaid proposition of law, we are convinced that this is a fit case wherein the rate of interest should be revised upwardly and enhanced even in absence of appeal or cross-objection by the original claimant, who is a living victim of the violent accident. In the case of State of Madhya Pradesh v. Diwan Chandra Gupta reported in 1989 ACJ 320, the Madhya Pradesh High Court was pleased to enhance the rate of interest from 6% to 12% from the date of the application till payment even without cross-objection. Without any cross-objection, in an appeal at the instance of the insurer, like one on hand, interest was directed to be paid at the rate of 12% per annum from the date of the application by the Madhya Pradesh High Court in the case of New India Assurance Co. Ltd. v. Shakuntla Bai reported in 1987 ACJ 224. Similar view was taken by the Gauhati High Court in the case of United India Fire & General Insurance Company Limited v. Malati Bala reported in 1985 (1) Gau. LR
443. In that case the award of the Tribunal was faulted by the High Court for not giving reasons for awarding only 6% interest and not higher interest, taking the view that the Tribunal had committed jurisdictional error in doing so and that could be corrected by the High Court without cross-objection of the claimant-respondent. ?
23. The break-up details of the award thus modified by this Court are as under:
S.No. Description Amount awarded by Tribunal Amount awarded by this Court Award confirmed or modified 1 Loss of dependency Rs. 14,40,000.00 Rs. 11,20,000.00 Reduced 2 Loss of consortium to the first claimant Rs. 3,000.00 Rs. 25,000.00 enhanced by Rs.22,000/-
3 Loss of love and affection to the claimants 1 to 3 Rs. 10,000.00 Rs. 30,000.00 enhanced by Rs.20,000/- 4 Medical bills Rs. 4,74,000.00 Rs. 4,74,000.00 confirmed 5 Funeral expenses Rs. 3,000.00 Rs. 5,000.00 enhanced by Rs.2,000/- Total Rs.19,30,000.00 Rs.16,54,000.00 Reduced by Rs.2,76,000/- Rounded off to Rs.16,54,000.00
24. For the reasons as aforesaid, the Civil Miscellaneous Appeal filed by the Appellant Insurance Company is Partly-allowed and the amount awarded by the Tribunal is reduced to Rs.16,54,000/- (Rupees sixteen lakhs fifty four thousand only), as total compensation.
25. It is to be noted that as per the order of this Court dated 08.02.2005 made in C.M.P.No.1152 of 2005 in C.M.A.No.164 of 2005, the entire award amount has been deposited to the credit of M.C.O.P.No.510 of 2001 on the file of the Motor Accidents Claims Tribunal, (Chief Judicial Magistrate, Karur), and the claimants were permitted to withdraw 50% of their apportioned share from the award and the balance amount was ordered to be deposited in any one of the Nationalised Banks under reinvestment scheme, initially, for a period of two years. The claimants are now permitted to withdraw their balance shares, as per the ratio of apportionment made by the Tribunal. No costs.
(V.D.P.,J.) (V.M.V.,J.)
31.10.2014
Index : Yes/No
Internet : Yes/No
RR
V.DHANAPALAN, J.
AND
V.M.VELUMANI, J.
RR
To
The Motor Accidents Claims Tribunal
Chief Judicial Magistrate Court,
Karur
C.M.A.(MD) No.164 of 2005
31.10.2014