Allahabad High Court
The New India Assurane Co. Ltd. Thru ... vs Smt. Neelam Jaiswal & 5 Ors. on 28 January, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 366 of 2005 Appellant :- The New India Assurane Co. Ltd. Thru A.M., Legal Cell Respondent :- Smt. Neelam Jaiswal & 5 Ors. Counsel for Appellant :- Anand Mohan,G.S. Chadha,H.S. Chadha,I.P.Singh Chadha Counsel for Respondent :- Ravindra Pratap Singh Hon'ble Jaspreet Singh,J.
Heard Shri I. P. Chadha learned counsel for the appellant and Shri R. P. Singh learned counsel appearing for the claimant-respondents no.1, 2 and 3.
None has put in appearance on behalf of the respondents no.4 to 6 and accordingly the appeal has been heard in their absence.
The insurance company has preferred the instant appeal being aggrieved against the award dated 18.01.2005 passed in Claim Petition No.442 of 1998 by the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Barabanki wherein a sum of rupees three lakh forty seven thousand alongwith six per cent interest per annum has been awarded in favour of the claimant-respondents no.1, 2 and 3.
The submission of the learned counsel for the appellant is two fold:-
(i) The claim petition was bad at the very inception since it mentioned that it was being filed under Section 163-A, 166, 140 of the Motor Vehicles Act, 1988. Thus, it has been urged that the claimants could not have simultaneously pressed their claim petition in the aforesaid sections and they had to elect whether it was under 163-A or under Section 166. This not having been done, has vitiated the proceedings and accordingly the award is bad.
(ii) It has also been urged that a specific plea was taken by the offending truck owner that his truck was not involved in the accident which is said to have occurred within the jurisdiction of Barabanki while at the alleged given time and date of the accident the said truck was stationed at Muzaffar Nagar. It has also been stated that in the FIR which was lodged post the accident. The truck number was not mentioned nor the police upon investigation found the involvement of the aforesaid truck. Consequently, the finding given by the tribunal in respect of the truck being involved in the accident also suffers from error and for the said reason, the award cannot be sustained.
Per contra Shri R. P. Singh learned counsel for the respondents no.1, 2 and 3 has submitted that merely by quoting wrong provisions under which the claim petition is filed will not denude the jurisdiction of the Authority of the Claims Tribunal.
In light of the pleadings and the evidence led it was clear in the mind of the parties that the claim petition was proceeded under Section 166 and merely by incorporating Section 163-A in the nomenclature of the claim petition alongwith Section 166-A will not make claim petition to be bad and the aforesaid submissions of the learned counsel for the appellant does not merit consideration.
It has further been submitted by Shri R.P.Singh that a specific issue was framed and in light thereof the party had to lead evidence. Since the owner of the truck had raised a plea in his written statement that on the date and time of the alleged accident the aforesaid truck was at Muzaffar Nagar, this plea was required to be proved by the truck owner. However, he led no evidence on the aforesaid point and therefore merely by taking a plea in the written statement will not partake the nature of evidence before the tribunal, to consider the aforesaid plea as having been proved and thus the other ground as raised by the learned counsel for the appellant also has no force.
The Court has heard the learned counsel for the parties and also perused the record.
Briefly, the facts giving rise to the aforesaid appeal are, that the claim petition bearing No.442 of 1998 was filed before the Motor Accident Claims Tribunal/Additional District Judge, Court No.2, Barabanki with the averments that Ashok Kumar Jaiswal on 10.11.1998 was riding his scooter bearing number UME 8120 and was moving towards Zaidpur. It is pleaded that while he had reached Phalahri Chauraha in police station Barabanki, a truck bearing number HR-37/2901 which was being driven rashly and negligently hit the scooter of Ashok Kumar Jaiswal who fell and sustained grievous injuries as a result he died on the spot. The accident was reported to the police concerned by the real brother of Ashok Kumar Jaiswal and a case was registered in respect thereto. It is in respect of the aforesaid that the claim petition was filed by the wife and children of Ashok Kumar Jaiswal stating that Ashok Kumar Jaiswal was earning about rupees five thousand a month and for the aforesaid loss, a total claim compensation of rupees eleven lakh forty seven thousand one hundred and twenty was claimed.
The owner of the offending truck filed his written statement wherein he pleaded that his vehicle was duly insured with New India Assurance Company Ltd. which was valid for the period 19.01.1998 to 18.01.1999. It also pleaded that the vehicle had a valid permit and its driver also had an effective and valid licence. The substantial plea raised by the truck owner was to the effect that on the date of the aforesaid accident his truck was at Muzaffar Nagar and that in the FIR also no truck number was mentioned and that the police also filed a final report and in view thereof the involvement of the truck was questionable while a specific plea was taken that no accident had occurred from the aforesaid truck.
Upon the pleadings of the parties, the tribunal framed five issues. The tribunal after considering the evidence including the statement of two eye witnesses concluded that the accident occurred on account of rash and negligent driving of the truck bearing number HR 37/2901 wherein Ashok Kumar Jaiswal received injuries and ultimately he expired. The tribunal also found that the aforesaid truck was duly insured. Its driver had a valid licence and all the necessary papers, accordingly upon assessing the compensation, it awarded a sum of rupees three lakh forty seven thousand alongwith six per cent interest by means of award dated 18.01.2005. It is this award which has been assailed in the instant appeal.
Upon considering the material available on record in light of the submissions made by the learned counsel for the appellant. This Court finds that merely because in the claim petition there is a mention of Section 163-A alongwith Section 166 will not denude the powers of the tribunal to try the case. The income of the deceased was stated to be rupees five thousand per month coupled with the fact that clear evidenced was led to establish the negligence of the truck driver.
In view of the above as well as in light of the evidence led before the tribunal, there can be no doubt that the parties were clear in the mind what case they had to meet and the claim petition was apparently under Section 166 of the Motor Vehicles Act. The ground taken by the learned counsel for the appellant is wholly super technical without any basis coupled with the fact that there is nothing on record to indicate that at any point of time the appellant had tried to confine to bring the inquiry within the scope of 163-A. Thus, for the aforesaid reasons, the first contention of the learned counsel for the appellant fails.
Coming to the other ground it would be relevant to note that the claimants have been able to establish the factum of the accident with the truck in question by examining two eye witnesses. The plea was raised by the truck owner. However, he did not lead any evidence to indicate that his truck was stationed at Muzaffar Nagar. Rather no evidence has been led at all on behalf of the truck owner. Merely by raising the plea in his written statement will not give the leverage to either the truck owner or to the insurance company who has been saddled with the liability, when no such plea was raised before the tribunal and no effort was made to establish and substantiate the aforesaid plea.
At this stage, learned counsel for the claimant-respondents Shri R. P. Singh has made a submission that the award passed by the tribunal is on the lower side; inasmuch as amount towards non-pecunary damages have been inadequately awarded. It has further been submitted that the Court while hearing on appeal can enhance the amount awarded if it finds that the amount is inadequate.
The Court had put a query to the learned counsel for the respondents that the appeal has been preferred in the year 2005 and the claimant-respondents have not filed any cross appeal nor filed any cross objection, then under what circumstances at the stage when the judgment was being dictated, this plea has been raised regarding enhancement in absence of any cross objections or cross appeal.
Shri R. P. Singh submits that the Court has ample power under Order 41 Rule 33 CPC and in order to do substantial justice, the Court can enhance the amount. Shri Singh has also relied upon a decision of the Apex Court in the case of Jitendra Khimshankar Trivedi and others Vs. Kasam Daud Kumbhar and others reported in 2015 (1) T.A.C. 673 and a Division Bench Judgment of this Court in the case of New India Assurance Co. Ltd. Vs. Resha Devi and others reported in 2017 (4) T.A.C. 288.
Relying upon the aforesaid decisions, learned counsel for the claimant-respondents has submitted that the Division Bench of this Court in the case of Resha Devi (supra) more specifically in paragraph-16 has laid down that where circumstances exist which necessitates the exercise of discretion conferred by Rule 33 of Order 41, the Court cannot be found wanting when it comes to the exercise of such powers and therefore even though the claimant-respondents have not filed any cross appeal or cross objections yet the award can be enhanced.
Before dealing with the aforesaid submission of Shri R. P. Singh, it will be apposite to note the provisions of Order 41 Rule 33 CPC and order 41 Rule 22 CPC and how they differ in its applicability.
This aspect of the matter regarding the difference between Order 41 Rule 22 and Rule 33 CPC was considered by the Apex Court in the case of Banarsi and others Vs. Ram Phal reported in 2003 (9) SCC 606. The question before the Apex Court was regarding the powers of the appellate court to interfere and reverse or modify the decree appealled against by the appellant in absence of any cross appeal or cross objection by the respondents under Order 41 Rule 22 CPC and the scope and power conferred on the appellate court under Rule 33 of Order 41 CPC.
The Apex Court taking note of the amendment brought in Rule 22 of Order 41 CPC and relying upon the earlier judgments noticing the scope of the aforesaid provisions first dealt with the scope of Order 41 Rule 22 CPC and the relevant portion reads as under:-
9. Any respondent though he may not have filed an appeal from any part of the decree may still support the decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and (B), any one of the two grounds being enough to entitle the plaintiff to a decree and the court has passed a decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a respondent can still seek to support the decree by challenging the finding on ground (B) and persuade the appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of the defendant-appellant the decree could still be sustained by reversing the finding on ground (B) though the plaintiff-respondent has neither preferred an appeal of his own nor taken any cross-objection. A right to file cross-objection is the exercise of right to appeal though in a different form. It was observed in Sahadu Gangaram Bhagade v. Special Dy. Collector, Ahmednagar [(1970) 1 SCC 685 : (1971) 1 SCR 146] that the right given to a respondent in an appeal to file cross-objection is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to be aggrieved thereby. Taking any cross-objection is the exercise of right of appeal and takes the place of cross-appeal though the form differs. Thus it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be said to be aggrieved by the decree. A party who has fully succeeded in the suit can and needs to neither prefer an appeal nor take any cross-objection though certain finding may be against him. Appeal and cross-objection -- both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment. This was the well-settled position of law under the unamended CPC.
10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations:
(i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all the issues have also been answered in favour of the respondent but there is a finding in the judgment which goes against the respondent.
11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross-objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.
The matter before the Apex Court in the case of Banarsi (supra) was considering an appeal arising out of a suit for specific performance wherein the trial court had passed a decree of refund of the earnest money. However, it also provided a conditional decree that in case if the aforesaid sum was not paid within a period of two months, then the defendant was directed to execute the sale deed. Before the appellate court two appeals came to be filed and both the appeals were dismissed. However, a fact to be noted was that the respondents did not file any cross objection. Thereafter the matter came up before the High Court where again two appeals were preferred and the High Court opined that it was open for the respondents not to file an appeal against the trial court's decree on the belief that he would either get his money back within two months as provided or the contract would be specifically performed. On account of the interim order since the decretal amount was not paid, hence while dismissing the appeal the High Court in exercise of powers under Order 41 Rule 33 passed a decree for specific performance in favour of the respondents.
It is in this backdrop as noticed above, the Apex Court considered the provisions of Order 41 Rule 22 and then it explained the applicability for the aforesaid propositions which read as under:-
"12. ....A plaintiff who files a suit for specific performance claiming compensation in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right to file an appeal against the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree in spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent. It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief of compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of his own or by taking cross-objection.
13. We are, therefore, of the opinion that in the absence of cross-appeal preferred or cross-objection taken by the plaintiff-respondent the first appellate court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the first appellate court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the first appellate court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out-and-out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection."
Thereafter the Apex Court considered the provisions of Order 41 Rule 33 and also its scope and relying upon the earlier decisions of the Apex Court in the case of Pannalal Vs. State of Bombay reported in A.I.R. 1963 S.C. 1516, Harihar Prasad Singh Vs. Balmiki Prasad Singh reported in (1975) 2 S.C.R. 932 and Nirmala Bala Ghose Vs. Balai Chand Ghose, reported in A.I.R. 1965 S.C. 1874 has held in under paras 15, 16, 17, 18 and 19 as under:-
15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The above said provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject-matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.
16.Panna Lal v. State of Bombay [AIR 1963 SC 1516 : (1964) 1 SCR 980] so sets out the scope of Order 41 Rule 33 in the widest terms:
The wide wording of Order 41 Rule 33 was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as ''the case may require'. If there was no impediment in law the High Court in appeal could, therefore, though allowing the appeal of the defendant-appellant by dismissing the plaintiff's suits against it, give the plaintiff-respondent a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the Illustration puts the position beyond argument.
The suit was filed by the plaintiff impleading the State Government and the Deputy Commissioner seeking recovery of compensation for the work done under a contract and the price of the goods supplied. The trial court held that the State was liable as it had beyond doubt benefited by the performance of the plaintiff. The suit was decreed against the State. The State preferred an appeal in the High Court. The plaintiff and other defendants including the Deputy Commissioner were impleaded as respondents. Disagreeing with the trial court, the High Court held that the contract entered into by the Deputy Commissioner was not binding on the State Government; that the Deputy Commissioner signed the contract at his own discretion; and further, that the contract not having been entered into in the form as required under Section 175(3) of the Government of India Act, 1935, was not enforceable against the State Government. The High Court also held that the Government could not be held to have ratified the action of the contract entered into by the Deputy Commissioner. The State was held also not to have benefited by the performance of the plaintiff. On this finding, the High Court set aside the trial court's decree passed against the State Government. In an appeal to this Court, the Constitution Bench held that it was a fit case for the exercise of jurisdiction under Order 41 Rule 33 CPC. On the findings arrived at by the High Court, while setting aside the decree against the State, the High Court should have passed a decree against the Deputy Commissioner. It was not necessary for the plaintiff to have filed any cross-objection and the Illustration appended to Order 41 Rule 33 was enough to find solution.
17. In Rameshwar Prasad v. Shambehari Lal Jagannath [AIR 1963 SC 1901 : (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. 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 insofar 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 a 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." (vide AIR p. 1905, para 17) (emphasis supplied)
18. In Harihar Prasad Singh v. Balmiki Prasad Singh [(1975) 1 SCC 212] the following statement of law made by Venkatarama Aiyar, J. (as His Lordship then was) in the Division Bench decision in Venukuri Krishna Reddi v. Kota Ramireddi [AIR 1954 Mad 848 : (1954) 2 MLJ 559] 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: (SCC p. 236, para 36) "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 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 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 v. Balai Chand Ghose [AIR 1965 SC 1874 : (1965) 3 SCR 550] the limitation on discretion operating as bounds of the width of power conferred by Rule 33 can be so formulated: (AIR p. 1884, para 22) "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 reopen decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from."
Thus applying the aforesaid principles as laid down by the Apex Court, it would indicate that the decree passed by the tribunal is not inseparablly connected nor there are two reliefs. The award is in favour of the claimants and the amount was crystallized. The dispute before this Court as raised by the Insurance Company was limited to the extent whether the said award was to be satisfied by the Insurance Company or the owner. There was no challenge to the quantum which by not filing a cross appeal or cross objection had attained finality. Nothing prevented the respondents herein from filing an appeal or taking cross objections. The dismissal of the present appeal is not resulting in any inconsistent, contrary or unworkable decree which may come into existence while the Appellate Court interferes with the award so as to enable this Court to exercise its power under Order 41 Rule 33 CPC.
In the aforesaid backdrop as well as the dictum of the Apex Court under what circumstances Order 41 Rule 33 CPC is to be applied, does not apply in the present facts and circumstances and for the said reason, this Court is not inclined to countenance the arguments raised by the learned counsel for the claimants-respondents.
There is another angle to look at the aforesaid situation. In the decision relied upon by the learned counsel for the respondents in the case of Resha Devi (supra) it would be seen that the appeal had been preferred by the Insurance Company. The submission of the learned counsel for the Insurance Company is noted in paragraph-4 of the judgment of the Division Bench and from the perusal whereof, it would indicate that the question before Hon'ble the Division Bench as raised by the Insurance Company was on quantum; inasmuch as it had been contended that the multiplier as adopted by the tribunal was on the higher side and the compensation accordingly was excessive.
It is in the aforesaid circumstance, where the question of quantum was before the Division Bench and in such circumstance considering the fact that the Division Bench found that the award was on the lower side had applied the power under Order 41 Rule 33 CPC and has enhanced the award by adding non-pecuniary damages. Thus, it would be seen that the facts before the Division Bench were completely different; inasmuch as the issue of quantum was before the High Court specifically raised by the Insurance Company and as an appeal is a continuation of the proceedings and the tribunal is required to hold an inquiry to ascertain the compensation which is just and fair, hence in the aforesaid circumstances where the Division Bench came to be conclusion that the Insurance Company was contending that the award was excessive, but it found that it was on the lower side, hence in order to do substantial justice despite the claimants did not file a cross appeal the Division Bench exercised its power under Order 41 Rule 33 CPC and enhance the same.
Similarly, in the case of Jitendra Khimshankar Trivedi (supra) the issue before the Apex Court was regarding the quantum of compensation. Moreover, the decision of the Apex Court in paragraph-15 has clearly noticed that the said judgment was being passed by exercising powers under Article 142 of the Constitution and accordingly the relevant portion reads as under:-
"15. As against the award passed by the Tribunal even though the claimants have not preferred any appeal and even though the claimants have then prayed for compensation of Rs.2,96,480/-, for doing complete justice to the parties, exercising jurisdiction under Article 142 of the Constitution of India, we deem it appropriate to award enhanced compensation of Rs.6,47,00/- to the claimants."
At this juncture, it will also be relevant to note that the Apex Court in the case of Indian Bank Vs. ABS Marine Products reported in 2006 (5) SCC 72 has clearly held that the law or directions issued under Article 142 of the Constitution do not lay a binding precedent.
In view of the above, the decisions of the Apex Court in the case of Jitendra Khimshankar Trivedi (supra) does not come to the rescue of the claimant-respondents.
In light of the aforesaid discussions, this Court is of the considered view that the facts and circumstances of the present case does not permit this Court to invoke the powers under Order 41 Rule 33 CPC as suggested by the claimants respondent to enhance the compensation while this Court finds that since the claimants-respondents did not choose to file any cross appeal or cross objections and permitted the quantum to have become final cannot seek the shelter of the aforesaid decisions relied upon by the claimant-respondents and for the said reason, this Court rejects the submissions of the learned counsel for the claimant-respondents.
This Court is also fortified in its view in light of the later judgment of the Apex Court in the case of Lakshmanan and others Vs. G. Ayyasamy reported in 2016 (13) SCC 165 and the relevant portion whereof reads as under:-
"7...Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41." (Ram Phal case [Banarsi v. Ram Phal, (2003) 9 SCC 606] , SCC p. 619, para 15) (emphasis supplied)
8. In support of the same proposition of law, the learned counsel for the appellants placed reliance upon another judgment of this Court in Pralhad v. State of Maharashtra [Pralhad v. State of Maharashtra, (2010) 10 SCC 458 : (2010) 4 SCC (Civ) 212] , wherein this Court after interpretation of Order 41 Rule 33 CPC has clearly held that in the absence of an independent appeal or cross-objection being filed by the aggrieved party, the relief which was denied by the courts below cannot be granted in the second appeal filed by the appellant."
In light of the above and upon perusal of the judgment/award passed by the Motor Accident Claim Tribunal dated 18.01.2005, this Court is satisfied that the same does not suffer from any error and is based on material evidence available on record and is accordingly affirmed.
In light of the above discussions, the appeal is devoid of merits and is accordingly dismissed. In the facts and circumstances, there shall be no order as to costs. Any amount deposited with this Court shall be remitted to the tribunal concerned to be released in favour of the claimants-respondent in accordance with the award and the rest amount shall be deposited by the appellant before the tribunal concerned within a period of eight weeks from today.
Order Date :- 28.1.2020 ank