Gauhati High Court
The Oriental Insurance Co. Ltd vs Smti Dipali Sarma & 5 Ors on 20 July, 2017
1
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MAC APP NO.72 OF 2013
THE ORIENTAL INSURANCE CO. LTD.,
A COMPANY UNDER THE COMPANIES
ACT, REPRESENTED BY ITS REGIONAL MANAGER,
ULUBARI, GUWAHATI - 7.
DISTRICT KAMRUP, ASSAM
........Appellant/ petitioner
-Versus-
1. SMTI DIPALI SARMA,
WIFE OF LATE BHABA KANTA SARMA
VILL - GARAMUR, PURANIGUDAM
DISTRICT - NAGAON, ASSAM
2. SMTI JONALEE RAJAK
WIFE OF SRI BHOLA RAJAK,
R/O VILL - NEW GUWAHATI RLY COLONY
P.O BAMUNIMAIDAN,
P.S CHANDMARI
DIST - KAMRUP, ASSAM
3. SRI KRISHNA SAHAI
SON OF SRI MONTAKI SAHAI,
VILL - NOONMARI,
P.S - NOONMATI,
DISTRICT - KAMRUP, ASSAM
.....respondents
4. SRI NITIN SARMA, SON OF LATE BHABA KANTA SARMA.
5. SMTI PAHARI SARMA, D/O OF LATE BHABA KANTA SARMA
6. SMTI KASTURI SARMA, D/O LATE BHABA KANTA SARMA .....P roform a respondents MAC App No.72/2013 2 B E F O R E HON'BLE MR. JUSTICE MIR ALFAZ ALI For the appellant : Mr. SK Goswami : Mr. PK Sharma, : Mr. A Acharya : Ms. P Medhi For respondents : Mr. M Choudhury : Mr. MK Misra : Mr. M Mahanta : Mr. P Hazarika Date of Judgment & Order : 20-07-2017 JUDGMENT & ORDER (CAV) This statutory appeal under Section 173 of the MV Act has been filed by the appellant Oriental Insurance Company Ltd challenging the judgment and award dated 07-03-2012 passed by the Motor Accident Claims Tribunal, Nagaon in MACT Case No.488/2009.
[2] The undisputed facts which may be relevant for disposal of this appeal are that late Bhaba Kanta Sarma died in a motor vehicle accident involving truck bearing registration No.AS-01D-7227, owned by respondent No.2 and insured with the appellant. At the time of accident, the deceased was aged about 65 years. The claimant i.e. the wife of the victim filed a petition for compensation. The learned Tribunal made an award of Rs.4,74,456/- which included loss of dependency of Rs.4,56,456, Funeral expense Rs.5,000/-, loss of consortium Rs.10,000/- and conveyance Rs.3,000/-.
[3] Mr. SK Goswami, learned counsel for the appellant and Mr. M Choudhury, learned senior counsel for the respondent were heard.
[4] Learned counsel Mr. SK Goswami arguing for reduction of the award, submitted that the tribunal awarded a higher amount by applying a wrong MAC App No.72/2013 3 multiplier and also awarded an amount of Rs.3,000/- on account of conveyance, not permissible under the law.
[5] Mr. M Choudhury, learned Sr. counsel for the respondent relying on the judgment of the Apex Court in Helen C R ebello (M rs) and Ors Vs. M aharashtra State R oad Transport Corporation and Anr reported in (1999) 1 SCC 90 as well as Arati Chakraborty and Ors Vs. Nephurai Jam atia and Anr reported in 2006 (2) GLT 20 submitted that family pension received by the claimant, having no correlation to the accidental death of the victim, cannot be deducted while determining compensation payable under the MV Act. Learned Tribunal assessed the compensation after deducting the family pension, which is not permissible under the law and therefore, the award is required to be enhanced in the interest of determining just compensation, without deducting the family pension, submits Mr. Choudhury. Learned counsel has also placed reliance on the decision of the Apex Court in Ranjana P rakash and Ors Vs. Divisional M anager and Anr reported in (2011) 14 SCC 639 in support of his submission for enhancement of the award. Countering the submission of Mr. Choudhury, Mr. Goswami, placing reliance on the same decision i.e. Ranjana P rakash (supra) submitted, that in absence of counter appeal or cross objection by the respondent, the award cannot be enhanced in the present appeal, filed by the Insurance Company for reduction of compensation.
[6] The admitted position is that the deceased was drawing pension of Rs.10,375/- per month, and while calculating the loss of dependency, the learned Tribunal deducted the family pension from the compensation. In view of the ratio laid down by the Apex Court in the case of Helen C. Rebello and Ors (supra) later on affirmed in United I ndia I nsurance Co. Ltd. v. P atricia Jean M ahajan (2002) 6 SCC 281, as well as the decision of this High Court in Arati Chakraborty case (supra), the law in respect of family pension is no longer res- integra. Therefore, the questions required to be decided are whether enhancement of compensation is permissible in absence of cross-appeal or cross- objection by the respondent and whether the compensation awarded by the Tribunal deserves to be reduced on the plea raised by the appellant.
MAC App No.72/2013 4[7] The appellant Insurance Company has challenged the award on quantum and sought for reduction of compensation, as according to Mr. Goswami, higher multiplier was applied by the Tribunal and also some amount had been given on account of conveyance, which the claimant was not entitled to. Apparently, no cross appeal or cross objection has been filed by the appellant. The Apex Court in para 8 of the judgment in Ranjana Prakash (supra) dealing with the ambit of power of the appellate Court to enhance the award in an appeal preferred by the Insurance Co for reduction of compensation, observed as under:
8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.
[8] In the case of Ranjana P rakash (supra) , while awarding the compensation, the Tribunal did not deduct the income tax from the gross income of the deceased. On appeal by the Insurance Company before the High Court, the appellant relying upon the decision of the Apex Court in Sarala Verm a Vs. DTC (2009) 6 SCC 121 and Shyam w ati Sarm a Vs. K aram Singh (2010) 12 SCC 378 argued, that the income of the deceased being taxable, the Tribunal ought to have deducted the income tax and only the net income ought to have been considered for determining the compensation. The claimant's counsel also argued, that considering the age of the deceased, 30% of the actual income ought to have been added as future prospect, but the Tribunal did not add the future prospect. The High Court did not consider the submission of the claimant's MAC App No.72/2013 5 side for addition of the future prospect, however, deducted 30% from the income of the deceased and reduced the award accordingly.
[9] On the above facts, the Apex Court observed that when the High Court considered the submission of the appellant, pointing out error in calculating the income of the deceased and deducted 30% towards income tax from the gross income of the deceased, the submission of the claimant to defend the award, pointing out error of not adding 30% of the income as future prospect also should have been considered, so that, the compensation awarded was not reduced. When the argument of both the sides was centering round the quantum of income of the deceased and the High Court accepted the submission of the appellant, with regard to the error in the award, pointed out by the appellant but ignored the contention of the claimant/respondent, the Apex Court observed in para 6 as follows:
"6. We are of the view that the High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the tribunal had failed to take note of the future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134 being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omission in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that it 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that the claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objection."MAC App No.72/2013 6
[10] The Apex Court also taking note of the provisions of Order 41 Rule 33 of the Code of Civil Procedure, observed that the power entrusted to the appellate Court by Order 41 Rule 33 can be pressed into service to make the award more effective or maintaining the award on other grounds or to make other parties to the litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief.
[11] What therefore, follows from the ratio laid down by the Apex Court in Rajana P rakash (supra), is that the High Court in an appropriate case can examine the facts and by applying relevant principles determine just compensation irrespective of the fact, as to who has filed the appeal, when the appeal is challenged on the point of quantum. However, the High Court can not obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can reduce the compensation in an appeal by the claimant seeking enhancement of compensation on any new ground, in absence of cross-appeal or cross objection.
[13] This Court in the case of National I nsurance Co. Ltd Vs. Suw alla Dutta and Ors reported in 2017 (2) GLT 39 having confronted with question of enhancement of award in an appeal preferred by the Insurance Company, in absence of any cross appeal having been preferred by the respondents/claimants held as under:
Interpreting Section 168 of the MV Act 1988, the Supreme Court has observed in paragraph 12 in the case of Jitendra Khimshankar Trivedi (supra) that in the cases where the Tribunal had omitted to grant relief to the claimants to which they were otherwise entitled under the law, it would not only be proper but also obligatory for the Court/tribunal to award a just and reasonable compensation. But in cases where the tribunal had awarded some compensation on a particular head, in the absence of a cross appeal preferred by the claimant, the Court cannot enhance the amount of compensation on the said head by invoking jurisdiction under Order XLI Rule 33 CPC on the ground that the amount is inadequate. That is because inadequacy of any amount awarded by the Tribunal would point at an erroneous decision of the tribunal which can be corrected only in exercise of appellate jurisdiction of a superior court/tribunal.MAC App No.72/2013 7
[14] What therefore, abundantly clear is that the power or duty of the appellate Court to examine and determine the just compensation or to enhance the compensation in an appeal preferred by the insurance co, in absence of cross objection/ or cross appeal by the claimant is circumscribed and not unfettered. In the instant case, the appeal has been filed by the Insurance Company for reduction of the compensation on the ground of error in applying multiplier and also for awarding a small amount on account of conveyance, which according to the appellant was not permissible, whereas, the respondent claimant in course of argument prayed for enhancement of the compensation on a new ground, which will be a larger or higher relief. The claimant having not filed any cross objection seeking higher relief or for enhancement of compensation on the ground as discussed herein before, shall not be entitled to such enhancement or higher relief in the present appeal filed by the Insurance Co for reduction of the compensation, in view of ration laid down by the Apex Court in Ranjana Prakash (supra).
[15] Be that as it may, having considered the totality of the matter, more particularly the quantum of award made by the Tribunal, I am not inclined to interfere with the award made by the Tribunal and in that view of the matter, the appeal is dismissed.
[16] Send back the LCR.
JUDGE
Smita
MAC App No.72/2013