Allahabad High Court
Abhishek Jain vs Chhedi Lal And Ors. on 23 September, 2019
Author: Anil Kumar
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. RESERVED Court No. - 3 Case :- FIRST APPEAL FROM ORDER No. - 465 of 2012 Appellant :- Abhishek Jain Respondent :- Chhedi Lal And Ors. Counsel for Appellant :- Nilish Anand,Virendra Mishra Counsel for Respondent :- Akhter Abbas Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(As per : Hon'ble Anil Kumar,J.) Heard Shri Virendra Mishra, learned counsel for the appellant and Shri Akhter Abbas, learned counsel for the respondent.
Facts in brief of the present case are that when father of the claimant, late Achit Kumar Jain, aged about 52 years, s/o late Pratap Chand Jain and mother of the complainant, Smt. Vidha Jain, w/o late Achit Kumar Jain, r/o Jail Road, Aara, District-Bhojpur, Bihar were coming from Lucknow by Indica Car bearing No.B.R. 3 B-1011, which was driven by a driver/Lallan Rajak, they met with an accident which took place at about 9:15 a.m. on 22.07.2003 at Village-Hauj, within the jurisdiction of P.S.-Jafrabad, District-Jaunpur (U.P.) due to rash and negligent driving of driver of Roadways Bus having Registration No.U.P. 65 R-2789, as a result of which, the driver of Indica Car/Lallan Rajak and Achit Kumar Jain sustained grievous injuries and died on the spot whereas Smt. Vidha Jain, while taking her to hospital, also died on the way. In this regard, F.I.R. was lodged and was registered as Case Crime No.432 of 2003 under Sections-279, 304A, 227, 338 I.P.C. at P.S.-Jafarabad, District-Jaunpur.
The deceased/late Anchit Kumar Jain and Vidha Jain were businessman and their monthly income was of Rs.15,000/- and 10,000/- respectively from the different sources. The claimant is legal heir of the deceased and is entitled for compensation.
In view of the above said facts, a Claim Petition No.02 of 2004 (Abhishek Jain vs. Chedilal) under Section 166 of Motor Vehicles Act, 1966 was filed before the Motor Accident Claims Tribunal/Additional District Judge, Court No.1, Lucknow.
U.P. State Road Transport Corporation/opposite party no.2 in the claim petition, had filed written statement in which plea was taken that the accident did not take place due to rash and negligent driving of the driver of the Roadways Bus, rather the same took place due to rash and negligent driving of driver of Indica Car.
The Tribunal, in order to decide the controversy involved in the claim petition, framed the following issues :-
"क्या दिनांक २२-०७-२००३ को समय करीब ९:१५ बजे सुबह स्थान ग्राम हौज, मुख्य मार्ग थाना - जफराबाद, जिला-जौनपुर पर बस संख्या -यू. पी. ६५ आर - २७८९ रोडवेज बस के चालक द्वारा बस को तेजी व लापरवाही से चलाते हुए अचित कुमार जैन व श्रीमती विधा जैन की इण्डिका कार में जोरदार टक्कर मार दिया जिसके परिणाम स्वरुप इण्डिका कार में बैठे अचित कुमार जैन व श्रीमती विधा जैन की मृत्यु हो गयी ? यदि हां तो प्रभाव ?
क्या याचिका इण्डिका कार व अन्य ट्रक सं.-डी. एल. बी. ओ. मालिक तथा बीमा कंपनी को पक्षकार न बनाये जाने के कारण दोषपूर्ण है, यदि हाँ तो प्रभाव ?
क्या उपरोक्त दुर्घटना इण्डिका कार चालक की योगदायी उपेक्षा के कारण हुई, यदि हाँ तो प्रभाव ?
क्या विपक्षी संख्या -३ श्रीमती सी. पी. जैन मृतकगण की पुत्री होने के कारण प्रतिकर की धनराशि पाने की अधिकारी है, यदि हाँ तो प्रभाव ?
क्या याची प्रतिकर की धनराशि पाने का अधिकारी है, यदि हाँ तो कितनी एवं किस विपक्षी से ?"
On the basis of the evidence and material on record, the Tribunal by means of the judgment dated 09.02.2012, allowed the claim petition. The operative portion reads as under :-
"याची की याचिका विपक्षीगण के विरुद्ध २,७३,०००/- रूपये (दो लाख तिहत्तर हजार रूपये मात्र) प्रतिकर हेतु पृथक - पृथक एवं संयुक्त रूप से स्वीकार की जाती है | याची एवं विपक्षी संख्या -३ इस धन राशि पर ६ प्रतिशत साधारण वार्षिक ब्याज याचिका प्रस्तुत करने के दिनांक से अदायगी के दिनांक तक प्राप्त करेंगे | विपक्षीगण द्वारा उक्त प्रतिकर की धनराशि मय ब्याज आज से दो माह के अंदर अदा की जाय | प्राप्त धनराशि में से याची अभिषेक कुमार जैन को १,३६,५००/- रूपये तथा विपक्षी संख्या-३ श्रीमती सी. पी. जैन को १,३६,५००/- रूपये प्राप्त होगा जिसमे से याची अभिषेक कुमार जैन व विपक्षी संख्या-३ श्रीमती सी. पी. जैन प्रत्येक द्वारा ८२,०००/- रूपये किसी राष्टीयकृत बैंक के पाँच वर्षीय सावधि जमा योजना में जमा किया जायेगा तथा शेष धनराशि का भुगतान उन्हें नकद चेक द्वारा किया जायेगा | विपक्षीगण द्वारा प्रतिकर की धनराशि मय ब्याज, अध्यक्ष, मोटर दुर्घटना दाबा अधिकरण/जिला जज, लखनऊ के खाते में रेखांकित चेक द्वारा जमा की जाय | For enhancement of compensation awarded by the Tribunal, Shri Abhishek Jain/appellant has filed the present appeal under Section 173 of Motor Vehicles Act, 1988, against the judgment dated 09.02.2012 and the award dated 25.02.2012 passed by Motor Accident Claims Tribunal, Lucknow/Additional District Judge, Court No.1, Lucknow in Claim Petition No.02 of 2004 before this Court.
Shri Akhter Abbas, learned counsel for the opposite party no.2 has raised a preliminary objection that the appellant/claimant, Shri Abhishek Jain, who has filed the present appeal, comes within the ambit of definition of legal heir of the deceased but he is not entitled for getting compensation as claimed by him because he was not "dependent" upon the income of the deceased and also Smt. Ceipi Jain, daughter of the deceased, who was also impleaded as opposite party no.3 in the claim petition, was not dependent upon the income of the deceased as she is married daughter. So the Tribunal had wrongly awarded the compensation to Shri Abhishek Jain as well as to the opposite party no.3/Smt. Ceipi Jain.
Accordingly, it is submitted by him that the appeal for enhancement of compensation is neither entertainable nor maintainable, as such, the same is liable to be dismissed.
In support of his argument, he has placed reliance on the following judgments :-
(a) U. P. State Road Transport Corporation and others vs.Trilok Chandra and others, (1996) 4 SCC 362 ;
(b) Ravinder Kumar Sharma vs. State of Assam and others, (1999) 7 SCC 435.
Shri Virendra Mishra, learned counsel for the appellant submitted that the preliminary objection raised by Shri Akhter Abbas, learned counsel for the opposite party no.2 has got no force because neither any plea related to dependency was taken before the Tribunal by the U.P.S.R.T.C. nor in this regard any issue was framed. So, the plea regarding dependency taken by Shri Akhter Abbas at the appellate stage in the arguments cannot be entertained coupled with the fact that U.P.S.R.T.C. neither challenged the judgment by filing an appeal nor filed any cross objection in the present appeal.
In support of his argument, he has placed reliance on the judgment given by the Hon'ble Apex Court in the case of Banarsi & Ors. vs. Ram Pal, JT 2003 (5) SC 224.
Shri Virendra Mishra, learned counsel for the appellant also submitted that U.P.S.R.T.C. had already complied with the award passed by the Tribunal, so the preliminary objection taken by learned counsel for the opposite party no.2 is liable to be rejected.
Further, Shri Virendra Mishra, learned counsel for the appellant has pressed the present appeal for the purpose of enhancement of compensation on the following points :-
(a) There is a composite negligence on the part of the drivers of two vehicles and the Tribunal had awarded compensation to the appellant/claimant after making 50% deduction. The said action on the part of the Tribunal is totally contrary to the material on record as well as settled law on the issue of awarding compensation in the cases of composite negligence. Late Lallan Razak, who was driving Indica Car having Registration No. B.R.-38-1011 met with an accident with the Bus of U.P.S.R.T.C. having Registration No.U.P. 65-R-2783, of which Sri Chhedi Lal was driver and the deceased were passengers of Indica Car and the Tribunal has held that on account of rash and negligent driving of both the drivers, the accident took place and thus in these facts : the deduction of 50% by the Tribunal is contrary to law on the issue.
In support of his argument, he has placed reliance on the following judgments :-
"(i) Khenyei vs. New India Assurance Company Limited and others, (2015) 9 SCC 273 ;
(ii) Machindranath Kernath Kasar vs. D. S. Mylarappa & Ors., 2008 AIR SCW 3546 ;
(iii) U.P. State Road Transport Corporation vs. Krishna Gopal Agarwal and another, 2019 (37) LCD 1322.
(b) The Tribunal while passing the judgment and award had not given any amount towards future prospect.
(c) The Tribunal has erred in awarding the correct amount under conventional heads, the amount awarded is not as per law.
Accordingly, it is submitted by learned counsel for the appellant that the present appeal may be allowed and the compensation awarded by the Tribunal be enhanced and given to the appellant/claimant.
We have heard learned counsel for the parties and gone through the records.
In order to decide the controversy, we feel appropriate to consider the following certain paragraphs of the claim petition filed by Sri Abhishek Jain under Section 166 of Motor Vehicles Act, 1988 :
7. Name and age of each of the dependents of the deceased indicating relationship with him, and also monthly average income of the deceased and source of such income.
As both the aforesaid deceased Anchit Kumar Jain and Smt. Vidya Jain were husband and wife and as such the following persons are the only dependents and legal representatives of the deceased :
1. Abhishek Kumar Jain, aged about 24 years of the deceased persons.
2. Smt. Ceipi Jain, aged about 27 years daughter of the deceased persons.
The deceased no.1/Achit Kumar Jain was a businessman and was engaged in various business i.e. the business of petrol pump, lubricant, investments, land & shares etc. and was earning a monthly income of approximately Rs.15000/- per month.
The deceased no.2/Smt. Vidhya Jain was engaged in business of investments, rental income & income by interest and was earning approximately Rs.10,000/- per month.
8. Does the deceased in respect of whom compensation is claimed pay income tax ? If so state the amount of income tax (to be supported by documentary evidence) Yes, both were income tax assessee income tax paid by Achit Kumar Jain deceased no.1 in the year 2002-2003 was Rs.7832/-.
Income tax paid by Vidya Jain, deceased no.2 in the year 2002-03 was Rs.10136/-.
23. Any other information that may be necessary or helpful in the disposal of the claim.
(a) (i) That the deceased no.1/Anchit Kumar Jain was a businessman and was earning approximately Rs.15000/- per month and was taking care of his accidental death, the deceased/Achit Kumar, aged about 52 years of age and he was completely hail and hearty and would have survived up to the age of 75 years if he would have not died in the accident. As he used to earn Rs.15,000/- per month, he would have earned in 12 month i.e. in one year Rs.15000/- x 12 = 1,80,000/- and thus in remaining 23 years, he would have earned Rs.1,80,000 x 23 = 41,40,000/-.
(ii) That the deceased no.2/Vidhya Jain was doing her own business and was earning about Rs.10,000/- per month and was looking after her family. At the time of her accidental death, Vidhya Jain was about 52 years of age and she was hale and hearty lady and she would have survived upto the age of 75 years, if she would have not died in the aforesaid accident and as such the deceased Vidhya Jain would have earned in one year Rs.10,000/- x 12 = 1,20,000/- and thus in remaining 23 years, she would have earned Rs.1,20,000 x 23= 27,60,000/-.
(iii) That besides this, the deceased no.1/Anchit Kumar Jain was a man of high social status and a man of repute holding the following prestigious posts :-
1. President- Bihar Petroleum Dealers Association, Bihar.
2. Founder Member & Treasurer - Bhojpur Chamber of Commerce & Industry, Arrah.
3. Joint Secretary - All India Digamber Jain Parishad, Bihar State Branch.
4. Trustee - Sri Digamber Jain Panchayati Mandir, Arrah.
5. Trustee - Sri 1008 Bhagwan Shreyansh Nath Trust, Arrah.
6. Pattern & Executive Member - Sri Arrah Goshala, Arrah.
7. Life & Executive Member - Indian Red Cross Society, Bhojpur Distt. Unit, Arrah.
8. Executive Member- Bihar Chamber of Commerce, Patna.
9. Representative Member- Arrah Railway Station, Advisory Samiti, Arrah.
10. Representative Member- Internal Trade Samiti, FICCI, New Delhi.
(b) That the Roadways Bus No.-U.P.-65 R-2789 of Kashi Depot owned by Uttar Pradesh State Road Transport Corporation Tehri Kothi, P.S.-Wazirganj, Lucknow was rashly and negligently in high speed in utter violation of the traffic rules was being driven by opp. Party no.1 its driver, as a result of which, the aforesaid roadways bus collided with the Indica Car No.BR-3 B-1011 on 22.07.03 at about 9:15 A.M. on the main road from Lucknow to Varanasi near Village- Hauj, P.S.-Jafrabad, District-Jaunpur, as a result of which, deceased/Achit Kumar Jain died on the spot and deceased/Vidya Jain died immediately after reaching the hospital and in this accident, the driver of the Indica Car Lallan Razak also died on the spot. The F.I.R. of this accident was lodged on 22.07.03 in P.S.-Jafrabad, District-Jaunpur and was registered at Case Crime No.432/3 under Sections-279/304A/427/338 I.P.C. The postmortem of the aforesaid persons was conducted in the Government Hospital, Jaunpur.
(c) That both the aforesaid deceased persons have left the petitioner and opposite party no.3 as their legal representatives, legal heirs, successors and dependents that both the petitioner and opposite party no.3, the sister of the petitioner were being financially supported looked after and patronized by the aforesaid deceased persons, in spite of this, the petitioner was being supported and guided by the deceased persons in multifarious ways and patterns, after the death of the parents of the petitioner, the petitioner is suffering and facing a lot of hardy hoods and has been forced to take the patronage of his near relative at Lucknow at his present address.
(d) That as the opp. Party no.3 is also the legal representative, legal heir, successor & dependent of both the aforesaid deceased and could not join the petition as a petitioner and as such opposite party no.3 is being arrayed as proforma opp. Party no.3 in this claim petition.
(e) That as such in the present circumstances and hardy hoods, the petitioner is entitled for a compensation of Rs.1,34,10,000/- to reprimand the irreparable injuries and mental and financial injuries.
(f) That if the driver of the aforesaid roadways bus the opp. Party no.1 would have been cautious and careful in driving the aforesaid bus or if the driver of bus would have been instructed by opp. Party no.2 the owner of the roadways bus about the appropriate rules and regulations of the traffic and road driving and also about the penal consequences of rash and negligent driving then this hazardous accident would have not occurred, the aforesaid accident has occurred because of the rash and negligent driving and the fatal accident has gutted up the above mentioned parents of the petitioner and the employers of the driver have yet not taken any pains to enquire about the well being of the family of the deceased.
(g) That the aforesaid accident took place in P.S.-Jafrabad, Distt.-Jaunpur, U.P. and the opp. Party no.2 the owner of the roadways bus have got their Head Office at Lucknow and thus this Hon'ble Court has got each and every jurisdiction for entertaining and adjudicating the present Motor Accident Claim Petition.
(h) That the description of the injuries is as under :-
1. (a) Injuries in the income of the deceased no.1/Achit Kumar Jain for remaining 23 years - 15000 x 12 x 23 =Rs.41,40,000/-
(b) Loss of income of deceased/Vidya Jain for remaining 23 years - 10000 x 12 x 23 = Rs.27,60,000/-
Total loss of income of both the deceased = Rs.69,00,000/-
2. Mental in bearable injuries - Rs.15,00,000/-
3. Loss of happiness of life - Rs.15,00,000/-
4. Loss of Love & affection - Rs.5,00,000/-
5. Funeral Expenses - Rs. 10,000/-
6. Loss of future enhancement of income of both the deceased persons in view of their flourshing and developing business prospects in remaining 23 years of their life - Rs.30,00,000/-.
Total = Rs.1,34,10,000/-
(I) That the petitioner has not filed any other claim petition in context to the aforesaid accident in any other court nor any suit or claim petition in relation to the aforesaid accident is pending elsewhere in any other or Tribunal.
In response to the pleadings taken by the appellant in paras 7, 8, 23 in the written statement filed by U.P.S.R.T.C., opposite party no.2 pleaded as under :
7. याचिका के प्रस्तर संख्या १८ के सम्बन्ध में इतना कहना है कि याची की तरफ से परिवहन निगम में कोई क्लेम नहीं किया गया है यदि कोई क्लेम किया जाता तो सहानुभूति पूर्ण ढंग से विचार करते हुये क्लेम को निस्तारण अवश्य किया जाता |
8. याचिका के प्रस्तर संख्या १९ लगायत २१ तथ्यों की जानकारी के आभाव में अस्वीकार है |
23. यह कि, याची के द्वारा प्रस्तर संख्या -६ में मृतकगणों की आय क्रमशः रूपये १५०००/- एवं रूपये १०,०००/- प्रतिमाह अंकित की है, वह मनगढंत व बिना किसी उचित आधार के है | In order to prove his claim, the appellant, Sri Abhishek Jain, himself appeared as witness and stated that :
"मैंने दुर्घटना नही देखी है मै बी. कॉम पास हूँ | दुर्घटना के समय में 24 वर्ष का था | मैंने बी. कॉम, 2002-03 में पास किया था | मै शादी शुदा हूँ | इस समय मेरे दो बच्चे है | मेरी बहन उम्र मे मेरे से बड़ी है | बहन की शादी 1996 में हुई थी | एक बहन के आलावा मेरे और कोई भाई बहन नहीं है | मेरे दादा -दादी भी जीवित नहीं है | मैं बिज़नेस करता हूँ | मै पेट्रोल पम्प का बिज़नेस करता हूँ | मैं 15,000-20,000/- रु. महीना कमाता हूँ | यह दुर्घटना 22.07.2003 को हुई थी | उस समय भी मैं पेट्रोल पम्प का कार्य करता था |"
and in his cross-examination, the appellant has stated that :
"यह सही है कि मेरे माता -पिता की जिस स्रोत से आमदनी होती थी वह सारे स्रोत मौजूद है लेकिन उनके न होने से उनकी कमी महसूस होती है तथा बिज़नेस में कमी आयी है |"
In this appeal for enhancement of compensation first we are dealing with the objection taken by Shri Akhter Abbas, learned counsel for the opposite party no.2, which is to the effect that the appellant/claimant as well as opposite party no.3/Smt. Ceipi Jain were/are not dependent upon the income of the deceased, so they were/are neither entitled for getting any compensation nor entitled for enhancement of the compensation.
In order to decide the controversy raised by Shri Akhter Abbas, learned counsel for U.P.S.R.T.C. in the present appeal, we feel appropriate to reproduce the relevant portion of the judgments connected therewith :-
Hon'ble the Apex Court in the case of Ravinder Kumar Sharma vs. State of Assam and others, (1999) 7 SCC 435 has held as under :-
"14. That means that under Order 41 Rule 22 CPC, before the 1976 Amendment, it was open to the defendant-respondent who had not taken any cross-objection to the partial decree passed against him, to urge, in opposition to the appeal of the plaintiff, a contention which if accepted by the trial court would have resulted in the total dismissal of the suit. This was the legal position under the unamended Order 41 Rule 22 as accepted by the Madras Full Bench in Venkata Rao's case and as accepted by this Court in Chandre Prabhuji's case.
15. The next question is as to whether, the law as stated above has been modified by the 1976 Amendment of Order 41 Rule 22. It will be noticed that the Amendment has firstly deleted the words "on any of the grounds decided against him in the Court below, but take any cross-objections" in the main part of Order 41 Rule 22 CPC and added the words "but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour" in the main part.
16. The main part of Order 41 Rule 22(1) CPC, (after the 1976 Amendment) reads as follows:
Order 41 Rule 22(1): Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
17. The 1976 Amendment has also added an Explanation below Order 41 Rule 22, as follows:
Explanation: A respondent aggrieved by a finding of the court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree is, wholly or in part, in favour of that respondent.
18. In connection with Order 41 Rule 22, CPC after the 1976 Amendment, we may first refer to the judgment of the Calcutta High Court in Nishambhu Jana v. Sova Guha (1982) 89 CWN 685. In that case, Mookerjee, J. referred to the 54th report of the Law Commission (at p.295) (para 41.70) to the effect that Order 41 Rule 22 gave two distinct rights to the respondent in the appeal. The first was the right to uphold the decree of the court of first instance on any of the grounds which that court decided against him. In that case the finding can be questioned by the respondent without filing cross-objections. The Law Commission had accepted the correctness of the Full Bench of the Madras High Court in Venkata Rao's case. The Commission had also accepted the view of the Calcutta High Court in Nrisingha Prosad Rakshit v. The Commissioners of Bhadreswar Municipality that a cross-objection was wholly unnecessary in case the adverse finding was to be attacked. The Commission observed that the words "support the decree..." appeared to be strange and "what is meant is that he may support it by asserting that the ground decided against him should have been decided in his favour. It is desirable to make this clear". That is why the main part of Order 41 Rule 22 was amended to reflect the principle in Venkata Rao's case as accepted in Chandre Prabhuji's case.
19. So far as the Explanation was concerned, the Law Commission stated (page 298) that it was necessary to "empower" the respondent to file cross-objection against the adverse finding. That would mean that a right to file cross-objections was given but it was not obligatory to file cross-objections. That was why the word 'may' was used. That meant that the provision for filing cross-objections against a finding was only an enabling provision.
20. These recommendations of the Law Commission are reflected in the Statement of Objections and Reasons for the Amendment. They read as follows:
"Rule 22 (i.e., as it stood before 1976) gives two distinct rights to the respondent in appeal. The first is the right of upholding the decree of the Court of first instance on any of the grounds on which that court decided against him; and the second right is that of taking any cross-objection to the decree which the respondent might have taken by way of appeal. In the first case, the respondent supports the decree and in the second case, he attacks the decree. The language of the rule, however, requires some modifications because a person cannot support a decree on a ground decided against him. What is meant is that he may support the decree by asserting that the matters decided against him should have been decided in his favour. The rule is being amended to make it clear. An Explanation is also being added to Rule 22 empowering the respondent to file cross- objection in respect to a finding adverse to him notwithstanding that the ultimate decision is wholly or partly in his favour."
Mookerjee, J. observed in Nishambhu Jana's case (see p.689) that "the "amended Rule 22 of Order 41 of the Code has not brought any substantial change in the settled principles of law" (i.e., as accepted in Venkata Rao 's case) and clarified (p.691) that "it would be incorrect to hold that the Explanation now inserted by Act 104 of 1976 has made it obligatory to file cross-objections even when the respondent supports the decree by stating that the findings against him in the court below in respect of any issue ought to have been in his favour.
21. A similar view was expressed by U.N. Bachawat, J. in Tej Kumar v. Purshottam, AIR 1981 MP 55 that after the 1976 Amendment, it was not obligatory to file cross- objection against an adverse finding. The Explanation merely empowered the respondent to file cross-objections.
22. In our view, the opinion expressed by Mookerjee, J. of the Calcutta High Court on behalf of the Division Bench in Nishambhu Jena's case and the view expressed by U.N. Bachawat, J. in Tej Kumar's case in the Madhya Pradesh High Court reflect the correct legal position after the 1976 Amendment. We hold that the respondent-defendant in an appeal can, without filing cross-objections attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose sustaining the decree to the extent the lower court had dismissed the suit against the defendants-respondents. The filing of cross-objection, after the 1976 Amendment is purely optional and not mandatory. In other words, the law as stated in Venkata Rao's case by the Madras Full Bench and Chandre Prabhuji's case by this Court is merely clarified by the 1976 Amendment and there is no change in the law after the Amendment.
23. The respondents before us are, therefore, entitled to contend that the finding of the High Court in regard to absence of reasonable and probable cause or malice - (upon which the decree for pecuniary damages in B and C schedules was based) can be attacked by the respondents for the purpose of sustaining the decree of the High Court refusing to pass a decree for non-pecuniary damages as per the A schedule. The filing of cross-objections against the adverse finding was not obligatory. There is no res judicata. Point 1 is decided accordingly in favour of respondents-defendants.
Hon'ble the Apex Court in the case of Banarsi & Ors. vs. Ram Phal, JT 2003 (5) SC 224 has held as under :-
"17. In Rameshwar Prasad and Ors. v. Shambehari Lal Jagannath and Anr., [1964] 3 SCR 549, the three-Judge Bench speaking through Raghubar Dayal, J. observed that Rule 33 really provides as to what the Appellate Court can find the appellant entitled to and 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. If 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."
18. In Harihar Prasad Singh and Ors. v. Balmiki Prasad Singh and Ors., [1975] 2 SCR 932, the following statement of law made by Venkatarama Aiyar, J. (as His Lordship then was) in the Division Bench decision in Krishna Reddy v. Ramireddi, AIR 1954 Mad 848 was cited with approval which clearly brings out the wide scope of power contained in Rule 33 and the illustration appended thereto, as also the limitations on such power:
"Though Order 41, Rule 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 Order 41, Rule 33.
But there are well-recognised 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 decree 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 Order 41, Rule 33. Such an enumeration would neither be possible nor even desirable."
19. In the words of J.C. Shah, J. speaking for a three-Judge Bench of this Court in Nirmala Bala Ghose and Anr. v. Balai Chand Ghose and Anr., [1965] 3 SCR 550, the limitation on discretion operating as bounds of the width of power conferred by Rule 33 can be so formulated --
"The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court does not agree with the opinion of the Court appealed from."
20. A Division Bench decision of Calcutta High Court in Jadunath Basak v. Mritunjoy Sett and Ors., AIR 1986 Cal 416 may be cited as an illustration. The plaintiff filed a suit for declaration that the defendant had no right or authority to run the workshop with machines in the suit premises and for permanent injunction restraining the defendant from running the workshop. The Trial Court granted a decree consisting of two reliefs: (i) the declaration as prayed for, and (ii) an injunction permanently restraining the defendant from running the workshop except with the terms of a valid permission and licence under Section 436 and 437 of Calcutta Municipal Act, 1951 from the Municipal Corporation. The defendant filed an appeal. The Division Bench held that in an appeal filed by the defendant, the plaintiff cannot challenge that part of the decree which granted conditional injunction without filing the cross-objection. The Division Bench drew a distinction between the respondent's right to challenge an adverse finding without filing any appeal or cross-objection and the respondent seeking to challenge a part of the decree itself without filing the cross-objection. The Division Bench held that the latter was not permissible. We find ourselves in agreement with the view taken by the High Court of Calcutta.
21. In the case before us, the Trial Court found the defendant not entitled to decree for specific performance and found him entitled only for money decree. In addition, a conditional decree was also passed directing execution of sale deed if only the defendant defaulted any paying or depositing the money within two months. Thus to the extent of specific performance, it was not a decree outright; it was a conditional decree. Rather, the latter part of the decree was a direction in terrorem so as to secure compliance by the appellant of the money part of the decree in the scheduled time frame. In the event of the appellant having made the payment within a period of two months, the respondent would not be, and would never have been, entitled to the relief of specific performance. The latter decree is not inseparably connected with the former decree. The two reliefs are surely separable from each other and one can exist without the other. Nothing prevented the respondent from filing his own appeal or taking cross-objection against that part of the decree which refused straightaway a decree for specific performance in his favour based on the finding of comparative hardship recorded earlier in the judgment. The dismissal of appeals filed by the appellant was not resulting in any inconsistent, iniquitous, contradictory or unworkable decree coming into existence so as to warrant exercise of power under Rule 33 of Order 41. It was not a case of interference with decree having been so interfered with as to call for adjustment of equities between respondents inter se. By his failure to prefer an appeal or to take cross-objection the respondent has allowed the part of the Trial Court's decree to achieve a finality which was adverse to him.
22. For the foregoing reasons we are of the opinion that the first Appellate Court ought not to have, while dismissing the appeals filed by the defendant-appellants before it, modified the decree in favour of the respondent before it in the absence of cross-appeal or cross-objection. The interference by the first Appellate Court has reduced the appellants to a situation worse than in what they would have been if they had not appealed. The High Court ought to have noticed this position of law and should have interfered to correct the error of law committed by the first Appellate Court.
23. During the course of hearing, the learned counsel for the appellants made a statement under instructions, that the appellants have a large family to support which is entirely dependent on the suit land for maintaining itself and they have no other means of livelihood. (This statement finds support from the finding arrived at by the Trial Court). He further stated that, in any case, to get rid of the onerous part of the decree, the appellants volunteer to pay a further amount of Rs. 1,20,000/- by way of compensation to the respondent over and above the amount of Rs. 2,40,000/- already deposited by them in the Court pursuant to interim orders alongwith the bank interest accrued thereon. That statement is taken on record and being a very fair voluntary offer deserves to be accepted and incorporated in the decree.
24. The appeals are allowed. The judgment and decree of the first Appellate Court are set aside and instead those of the Trial Court restored. In view of the appellants having deposited the money due and payable under the money part of the decree, it is held that they are relieved from specifically performing the agreement and executing sale deed in pursuance thereof. The delay in deposit, if any, deserves to be condoned in view of the interim orders passed by the High court and is hereby condoned. The time for deposit, as appointed by the Trial Court, shall be deemed to have been extended upto the dates of actual deposits made by the appellants. The amount of Rs. 2,40,000/- lying deposited in the Court and invested in fixed deposits shall, along with the interest earned, be released to the respondents. In addition the appellants shall, as offered by them, deposit with the executing court for payment to the respondent another amount of Rs. 1,20,000/- within a period of eight weeks from today. On that being done, the decree passed by the Trial Court shall be deemed to have been fully satisfied. The respondent shall deliver the agreements dated 30.11.1988 and 15.7.1991 to the appellants endorsing upon the agreements the amount of money received and that the agreements stand discharged and need not be performed. The costs shall be borne by the parties as incurred throughout."
Hon'ble the Apex Court in the case of U. P. State Road Transport Corporation and others vs. Trilok Chandra and others, (1996) 4 SCC 362 has held as under :-
"India is one of the countries with the highest number of road accidents. Motor accidents are every day affairs. A large number of claims for compensation for injury caused by road accidents are pending in various Motor Accident Claims Tribunal. In a fatal accident the dependents of the deceased are entitled to compensation for the loss suffered by them on account of the death. The most commonly practised method of assessing the loss suffered is to calculate the loss for a year and then to capitalise the amount by a suitable multiplier. To that is added the loss suffered on account of loss of expectation of life and the like, the Tribunals and High Courts have adopted divergent methods to determine the suitable multiplier. Even this Court has not been uniform; maybe because the principle on which this method came to be evolved has been forgotten. It has, therefore, become necessary to examine the law and to state the correct principles to be adopted."
In the case of Manjuri Bera vs. The Oriental Insurance Company Ltd. and Ors., AIR 2007 SC 1474, Hon'ble the Apex Court has held as under :-
"8. The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same.
9. According to Section 2(11) of CPC, "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996, i.e. under Section 2(1)(g).
10. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique, [1989] 2 SCR 810 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression 'legal representative'. As observed in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai and Anr., [1987] 3 SCR 404 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child.
11. There are several factors which have to be noted. The liability under Section 140 of the Act does not cease because there is absence of dependency. The right to file a claim application has to be considered in the background of right to entitlement. While assessing the quantum, the multiplier system is applied because of deprivation of dependency. In other words, multiplier is a measure. There are three stages while assessing the question of entitlement. Firstly, the liability of the person who is liable and the person who is to indemnify the liability, if any. Next is the quantification and Section 166 is primarily in the nature of recovery proceedings. As noted above, liability in terms of Section 140 of the Act does not cease because of absence of dependency. Section 165 of the Act also throws some light on the controversy. The explanation includes the liability under Sections 140 and 163A.
12. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be less than the liability referable to Section 140 of the Act. Therefore, even if there is no loss of dependency the claimant if he or she is a legal representative will be entitled to compensation, the quantum of which shall be not less than the liability flowing from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciation for the able assistance rendered by Shri Jayant Bhushan, the learned Amicus Curiae.
13. Although I agree with the operative part of the judgment proposed to be delivered by my esteemed brother Dr. Arijit Pasayat, J, I would like to give my own reasons.
14. In the present case the married daughter of the victim (deceased) filed the claim under Section 140(2) of the Motor Vehicles Act, 1988 praying for statutory compensation on account of the death of her father. As stated, the application was made under Section 140 of the said Act. That Section makes it clear that "No Fault Liability is cast on the owner of the vehicle and not directly on the insurer. Before an order is passed under Section 140, the Tribunal must be satisfied that the accident arose out of a motor vehicle which resulted in permanent disablement or death and that the claim is made against the owner and the insurer of the offending motor vehicle.
15. In the present case, as stated above, the victim's married daughter has made her claim under Section 140 of the said Act saying that she has five children; that they are minors; that she was brought up by her uncle; that after her mother's death the deceased lived in the same house in which the claimant was living with her uncle before her marriage; that the deceased was a mason that after her marriage she lived with her husband and, therefore, she was entitled to get statutory compensation under Section 140 of the said Act.
16. In the impugned judgment the High Court has correctly drawn a distinction between "right to apply for compensation" and "entitlement to compensation". The High Court has rightly held that even a married daughter is a legal representative and she is certainly entitled to claim compensation. It was further held, on the facts of the present case, that the married daughter was not dependent on her father. She was living with her husband in her husband's house. Therefore, she was not entitled to claim statutory compensation. According to the High Court, the claimant was not dependent on her father's income. Hence, she was not entitled to claim compensation based on "No Fault Liability".
17. In my opinion, "No Fault Liability", envisaged in Section 140 of the said Act, is distinguishable from the rule of "Strict Liability". In the former, the compensation amount is fixed. It is Rs. 50,000/- in cases of death [Section 140(2)]. It is a statutory liability. It is an amount which can be deducted from the final amount awarded by the Tribunal. Since, the amount is a fixed amount/crystallized amount, the same has to be considered as part of the estate of the deceased. In the present case, the deceased was an earning member. The statutory compensation could constitute part of his estate. His legal representative, namely, his daughter has inherited his estate. She was entitled to inherit his estate. In the circumstances, she was entitled to receive compensation under "No fault Liability" in terms of Section 140 of the said Act. My opinion is confined only to the "No Fault Liability" under Section 140 of the said Act. That section is a Code by itself within the Motor Vehicles Act, 1988."
In the case of Sarla Verma and others vs. Delhi Transport Corporation and another, 2009 (2) T.A.C. 677 (SC), Hon'ble the Apex Court held that "Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent 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 married, or be dependent on the father. Thus, even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent."
Further, on the basis of the pleadings and evidence led by the appellant/claimant as well as Sections 140, 163A and 166 of the Motor Vehicles Act, 1988 (in short "Act of 1988") and judgments of the Hon'ble Apex Court in the case of Ravinder Kumar Sharma (Supra), Banarsi (Supra), U.P. State Road Transport Corporation (Supra), Manju Beri (Supra) and Sarla Verma (Supra), we are taking note of objection taken by the learned counsel for U.P.S.R.T.C. to the effect that only dependent(s) are entitled to compensation or for enhancement of compensation and accordingly we are of the view that :
(i) Legal heir(s) can file an application for getting compensation under the Act of 1988,
(ii) Legal heir(s) or dependent (s) are entitled to get compensation under the Act of 1988,
(iii) Legal heir(s) is/are entitled to get compensation which would not be less than as provided under Section 140 of the Act of 1988,
(iv) Legal heir(s) is/are entitled to get amount towards General Damages, as provided under the Second Schedule of the Act of 1998,
(v) Dependent(s) is/are entitled to get compensation as per Second Schedule of the Act of 1988, which includes Multiplier System Formula provided under the Act, which cannot be taken note of in the case of legal heir(s) not dependent on the concerned deceased.
Thus, in view of the above, the claim petition filed by the claimant under Section 166 of Motor Vehicle Act, 1988 was maintainable as he being son of the deceased, falls within the ambit of legal representative but the compensation awarded by the Tribunal to the claimant as well as to the opposite party no.3 is not in consonance with the judgment passed by Hon'ble the Apex Court in the case of Manju Beri (Supra) and Sarla Verma (Supra).
Further, The appellant/claimant and his sister Smt. Ceipi Jain is entitled to get General Damages, as provided in the Second Schedule of the Act of 1988. In other words the appellant/claimant and Smt. Ceipi Jain are entitled to get amount towards conventional heads, such as funeral expenses, loss of consortium, loss of estates, medical expenses. The amount towards conventional heads is liable to be provided in the light of principles settled by the Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Ors., (2017) 16 SCC 680 and Magma General Insurance Co. Ltd. vs. Nanu Ram and Ors., 2018 SCC Online 1546 = 2018 (11) SCALE 247. The relevant part of the judgment in the case of Magma General Insurance Co. Ltd. (Supra) is quoted below for ready reference :
"8.4. The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son. This contention deserves to be repelled. The deceased was a bachelor, whose mother had pre-deceased him. The deceased's father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents.
8.5. The Insurance Company has contended that the High Court had wrongly awarded Rs. 1,00,000 towards loss of love and affection, and Rs. 25,000 towards funeral expenses.
The judgment of this Court in Pranay Sethi (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below:
Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years.
As per the afore-said judgment, the compensation of Rs. 25,000 towards funeral expenses is decreased to Rs. 15,000.
The amount awarded by the High Court towards loss of love and affection is, however, maintained.
8.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra).
The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the Claimant.
In exercise of our power Under Article 142 and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2.
8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.1 Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation."2 Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count3. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'Loss of Consortium' as laid down in Pranay Sethi (supra).
In the instant case, as appears from the operative portion of the judgment dated 09.02.2012 and the award dated 25.02.2012, the amount awarded towards conventional heads is not as per the law laid down by the Hon'ble Apex Court in the case of Pranay Sethi (Supra) and Magma General Insurance Co. Ltd. (Supra).
Thus, in view of the above said facts, the prayer in the appeal filed by the appellant/claimant for enhancement of compensation on the ground of composite negligence and future prospect is liable to be rejected as the appellant/claimant as well as Smt. Ceipi Jain/opposite party no.3 were not dependent upon the deceased.
Needless to mention herein that U.P.S.R.T.C. neither challenged the judgment dated 09.02.2012 and award dated 25.02.2012 nor filed any cross objection by which the compensation was awarded to the appellant/claimant, as such, due to the above said facts, the amount already paid to the appellant/claimant and opposite party no.3 as compensation cannot be recovered by the U.P.S.R.T.C. Before parting, we would like to point out that the findings and observations, given herein above, would not affect the claims/compensation claimed by the legal heirs in relation to death of a minor, as in this case we have only dealt with claim made by Claimant-Appellant, who was major and he has own source of income and as per the case, he was not dependent upon the deceased.
However, we modify the judgment dated 09.02.2012 in view of the principles settled by the Hon'ble Apex Court as stated herein above. In addition to the amount of compensation i.e. 2,64,000/-, awarded by Tribunal and already paid by the U.P.S.R.T.C, the appellant is also entitled for the following amount by way of compensation :
(a) Towards Loss of Estate - Rs.15,000/- (b) Towards Loss of Consortium - Rs.80,000/- (Rs.40,000/- for legal heir) (c) Towards Funeral Expenses - Rs.15,000/- ............................ Total = 1,10,000/-
On the total amount aforesaid Rs.1,10,000/-, the appellant would be entitled to the interest @ 12% per annum from the date of filing of the Claim Petition, as awarded in the case of Magma General Insurance Co. Ltd. (Supra).
For the foregoing reasons, the present appeal filed by the appellant against the judgment dated 09.02.2012 and the award dated 25.02.2012, passed by Motor Accident Claims Tribunal, Lucknow/Additional District Judge, Court No.1, Lucknow in Claim Petition No.02 of 2004, is partly allowed and the award given by the Motor Accident Claims Tribunal, Lucknow against the Loss of Estate, Funeral Expenses, Loss of Consortium is modified and the same is awarded to the appellant as stated herein above.
No order as to costs.
.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Dated :-23.09.2019 Mahesh