Madras High Court
Managing Director, Thiruvalluvar ... vs Santhalakshmi And Others on 16 April, 1999
Equivalent citations: 2001ACJ441, 1999(2)CTC271
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER
1. Thiruvalluvar Transport Corporation is the appellant in all the three appeals.
2. CMA.298 of 1993 is against M.C.O.P.No.l 146 of 1991 on the file of Motor Accidents Claims Tribunal,Trichy for the death of one Mallikarjuna Sharma, the Widow and minor son have prayed for a compensation of Rs.5 lakhs. The Court below on the basis of oral and documentary evidence passed an award for Rs. 1,50,000.
3. CMA 299 of 1993 is against M.C.O.P.No. 1731 of 1991 on the file of Motor Accidents Claims Tribunal, Trichy, wherein the claimant has prayed for a compensation of Rs.l lakh for the injuries sustained by him in the said accident. The tribunal has passed an awarded for Rs.15,000.
4. CMA 300 of 1993 is against M.C.O.P.No: 1734 of 1991 on the file of Motor Accidents Claims Tribunal, Trichy, wherein the claimant has prayed for a compensation of Rs.1 lakh for the injuries sustained by him in the said accident. Here again the Court below has granted a sum of Rs. 25,000.
5. Heard the learned counsel for the appellant as well as respondents.
6. Even at the outset learned counsel appearing for the appellant Transport Corporation fairly conceded that he is questioning only the quantum of compensation arrived by the Tribunal. Even regarding the determination of quantum of compensation, after going through the oral and documentary evidence, particularly the nature of injuries, period of treatment, disablement etc., I do not find any justifiable ground to interfere in the award passed in O.P.Nos. 1731 and 1734 of 1991, accordingly CMAs.299 and 300 of 1993 are liable to be dismissed.
7. Now, I shall consider the compensation granted in O.P. 1146 of 1991. As stated earlier, since we are concerned with the quantum of compensation, it is unnecessary to refer the facts leading to the negligence aspect. In support of their claim, first claimant herself was examined as PW. 1. According to her at the time of the accident her husband was aged about 40 years. Even in the post morteum certificate which has been marked as Exhibit A.2 it is mentioned as 40. It is further seen from her evidence that her husband was employed' in a private concern by name Bombay Roadways, Branch Office at Madras as Manager and he was earning Rs.2,000 per month. She also deposed that, while attending his office work at Trichy he met with an accident and died. Apart from the evidence of PW.l, personal assistant to Manager of the Bombay Carriers was examined as PW.2. He deposed that the deceased was employed as a Sales Executive in the said Company and he was getting as a Sales Executive in the said Company and he was getting Rs. 2,000 all together per month. The salary certificate has been marked as Exhibit A.5. He also deposed that, because of the fire accident all the records have been destroyed, accordingly he could not produce any other document apart from Exhibit A.5. In order to prove fire accident copy of the complaint made to the police regarding the fire accident has been marked as Exhibit A.6. The perusal of Exhibit A.6 supports the stand taken by PW.2. In spite of the evidence of PW. 1, PW.2, Exhibits A.5 and A.6, in view of overtyping in the figure, viz., in Exhibit A.5, the Court below refused to rely upon the said document. According to the learned Judge, in Exhibit A.5 initially it is mentioned as Rs.1,000 and subsequently the same has been corrected as Rs. 2,000, accordingly he took the salary as Rs.1,000 only. In the light of the discussion made by the Tribunal. I have carefully perused Exhibit A.5. It is true that the figure No.2 has been overtyped, However after mentioning the figure it is specifically stated viz., Rs.2,000 only in words. In such circumstances, considering the evidence of PW.2 that the deceased was a Sales Executive, I do not find any good reason to reject Exhibit A.5 as observed by the Court below of Exhibit A.5 is accepted then We have to ascertain total pecuniary, loss to the family of the deceased. I have already stated that the deceased was aged about 40 years at the time of the accident. Taking note of future prospects, future promotion etc., age of the deceased as well as the claimants, I am of the view that Rs. 1,500 would be the proper multiplicant and it is safe to fix 15 as proper multiplier. If that is so, the total pecuniary loss comes to Rs.2,70,000. It is seen from the records that the widow -first claimant was aged about 35 years at the time of the accident. Considering the above aspect, it is but, proper to fix a sum of Rs. 10,000 towards loss of consortium to her. The second claimant is a minor son aged about 12 years at the time of accident, accordingly another sum of Rs. 10,000 is fixed towards loss of love and affection. It is but proper to add another sum of Rs. 10,000 towards loss of expectation of life. Accordingly, a sum of Rs. 3 lakhs would be just and proper compensation payable to the claimants. In the light of the abundant evidence both in the form of oral and documentary, I am unable to accept the conclusion arrived by the Court below. Likewise, I do not find any merit in the contention raised by the teamed counsel for the appellant for reduction of the amount already granted by the Tribunal. On the other hand the respondents - claimants have made out a case for enhancement.
8. Learned counsel appearing for the respondents in CMA. 298 of 1993 has stated that, immediately on receipt of notice from this Court in the said appeal they filed Cross Objection on 11.06.1993 for the balance amount. The fact that the respondents - claimants have filed cross appeal for the balance amount within the permissible time as evidenced in the particulars furnished in the counter affidavit filed by Santhalakshmi (first claimant) in CMP 4215 of 1993 in CMA 298 of 1993. In para 2 it is stated.
"As such, aggrieved by the said meagre award of a sum of Rs. 1,50,000 as against my claim of Rs.5,00,000 immediately on receipt of the above CMP. 4215 of 1993 notice and within the time stipulated for filing cross-objections. I and my son preferred cross-objections in the above CMA. 298 of 1993 on 11.06.1993 under SR.No. 37072 dated 11.06.1993 and as such I pray that, my said cross-objections may kindly be treated and read as part and parcel of my counter affidavit."
Though the said SR. Number is not traceable by the Registry, learned counsel for the appellant Corporation fairly states that the cross-objector has served a copy of the cross-objection before filing the said cross-objection. In such circumstances, I accept the plea of the respondents that they have filed cross objection in CMA. 298 of 1993. In this regard it is worthwhile to refer the decision of Srinivasan, J. (as his Lordships then was) in Thozhappa Iyengar @ Alagar Iyengar v. P. Ganapathy and 2 others, 1992(2)LW 93. While construing Order 41 Rule 33 of Civil Procedure Code, after referring the decision of the Apex Court in Choudhary Sahu v. State of Bihar, the learned Judge has concluded thus, "If the test prescribed by the Supreme Court is applied, the most important matter to be considered is that a party cannot escape the provisions of the Law of Limitation and the law of Court-fees and claim a relief in the appellate Court by invoking Order 41, Rule 33 C.P.C. The Rule provides an exception under which the power should be exercised with great care and caution. It cannot be exercised just because the party has chosen to raise an argument at the stage of the hearing of the appeal. There must be sufficient explanation by the party concerned as to why an appeal was not preferred or a memorandum of cross-objection was not filed. The party should make out that justice of the case requires the exercise of power under Order 41, Rule 33 C.P.C. The Rule only confers a power on the Court to grant relief depending upon the exigencies of the circumstances and the situation in a particular case in order to render justice and does not confer any right on the party to say that he, would be entitled to canvass the correctness of the decree which he has not chosen to challenge by way of an appeal or a memorandum of cross- objection."
It is clear from the above said decision as well as the decision of the Apex Court reported in Choudhary Sahu v. State of Bihar, , that even in the absence of cross-objection/ appeal in the interest of justice equity and conscience, if the aggrieved person is able to satisfy the law of limitation as well as Court fee, is open to this Court to grant proper relief in favour of the aggrieved person/persons. In our case, I have already observed that there is abundant proof regarding filing of cross- objection by the respondents on 11.06.1993. Regarding the first condition provided in the said decision, it is seen from the notice papers sent by this Registry in CMA.No.298 of 1993 that the same had been sent to the ' respondents on 6.4.1993 mentioning the hearing date as 20.4.1993. The limitation prescribed for filing cross-objection is 30days from the date of receipt of a copy of the grounds of appeal. Even if it is accepted that the grounds of appeal. Even if it is accepted that the grounds of appeal have been served on the respondents in between i.e., 4 and 20.4.1993, filing of the cross-objection on the reopening date i.e., on 11.6.1993 after summer recess, undoubtedly would be within the time prescribed. Accordingly, I am satisfied that the respondents have filed cross-objection within the time prescribed.
9. Regarding payment of court fee, it is always open to this Court to prepare a decree on receipt of required court fee from the cross-objectors. In such circumstance, there may not be any difficulty in issuing direction for payment of necessary court fee for the proposed enhanced amount.
10. In the light of what is stated above, all the three appeals filed the by Transport Corporation are dismissed, In respect of claim made by the respondents herein, the award of the Tribunal is modified and there shall be an award for Rs.3 lakhs with interest at 12 percent from the date of claim petition. Accordingly, cross-objection is allowed. Cross-objectors are directed to pay the court fees for the enhanced amount of Rs. 1,50,000 within a period of two weeks from to-day. On such payment office is directed to prepare a decree and issue the same to the parties concerned. Out of the enhanced amount of Rs.1,50,000 first claimant-widow is permitted to take Rs. 1,00,000 and the balance amount of Rs. 50,000 is allotted to the second claimant viz., son of the deceased.
11. Net result, all the three appeals are dismissed. Cross objection is allowed to the extent mentioned above. No costs.