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2005 DIGILAW 2673 (RAJ)

National Insurance Co. v. Kamla

2005-10-17

AJAY RASTOGI

body2005
Judgment Ajay Rastogi, J.-Instant appeal has been filed by Insurance Company against Order dated 19.07.2001 passed by Motor Accident Claim Tribunal Jaipur (“Tribunal”) in Claim Appeal No. 1705/1997, in exercise of powers under Section 152, CPC awarding interest @ 9% per annum, from the date of filing claim application till actual payment, on the compensation awarded vide award dated 23.06.2001 2. Claim petition was filed by widow and three minor children of Late Jagdish Prasad, who was working as Helper drawing monthly salary of Rs. 3,533/-in Electricity Department, Chomu, who met with an accident on 22.09.1997. The Tribunal, after taking note of material on record awarded total compensation of Rs. 4,36,170/-but so far as grant of interest is concerned, no finding was recorded of denying interest to the claimants for the period from date of filing claim petition till actual payment. However, the Tribunal granted interest @ 12% per annum, only in case the compensation awarded is not paid within 45 days. 3. Immediately thereafter, claimants filed an application under Section 152, CPC seeking clarification, that in ordinary course, interest over the compensation awarded was to be granted from the date of filing claim petition till actual payment, in the light of catena of decisions. The Tribunal, after hearing both the parties, observed that since it escaped to its notice, and is an omission on his part, accordingly clarified the award with the direction that amount of compensation awarded on 23.06.2001 shall carry interest @ 9% per annum From date of claim petition till its actual payment. 4. Confining his arguments only with regard to order dated 19.07.2001 passed by the Tribunal in exercise of powers under Section 152, CPC, for grant of interest from the date of filing claim petition, Shri Rahul Joshi, Counsel for Insurance Company, contends that once the award was passed by the Tribunal and attained finality the Tribunal has become functus officio and provisions of Section 152, CPC, can be invoked for limited purposes only if there remains any clerical or arithmetical mistakes in Judgment s, decrees or orders or errors on account of any accidental slip or omission, can be corrected or clarified, but instant substitution made by order impugned dated 19.07.2001 is beyond scope of Section 152, CPC, as such the very direction/order issued for grant of interest from the date of filing of claim petition deserves to be set-aside. 5. 5. Shri Joshi further urged that interest cannot be claimed as a matter of right and the Tribunal has been empowered under Section 171 of the Motor Vehicles Act, 1988 (“the Act”) to consider award of interest, but it should not be from a date anterior to filing of claim petition; and in such circumstances, if the Tribunal considered to grant interest only on the contingency of non-payment of awarded compensation within 45 days, which cannot be said to be an error or omission while passing the award, warranting invocation of powers under Section 152, CPC and in support of his contention placed reliance upon decision of Apex Court in Dwarka Das vs. State of Madhya Pradesh, AIR 1999 SC 1031 and of Delhi High Court in S. Kadam Singh vs. Union of India, 1999 (1) ACC 102. 6. Per contra, Shri Mahendra Goyal, Counsel for claimants supporting the impugned order, has urged that the Tribunal has specifically observed while granting interest that it was by a clear omission which has escaped its notice and on filing application, mistake has been corrected by ambit of Section 152, CPC. Shri Goyal further contended by making oral cross objection with the aid of Order 41, Rule 33, CPC that in catena of decisions, interest has always been awarded from the date of filing of claim petition, what has been varied, is rate of interest after taking an over all conspectus of each case; but no finding other wise has been recorded to deny the same and immediately when this fact was brought to the notice of the Tribunal by way of filing application under Section 152,CPC, it has been corrected to award interest in view of Section 171 of the Act, which has crept in because of omission which was rectified, when noticed, vide impugned order and placed reliance on the decision of this Court in RSRTC vs. Smt. Pista,2002 (1) WLC 762 (Raj.). 7. 7. On the strength of provisions contained in Rule 10.31(3) of Rajasthan Motor Vehicles Rules, which makes provisions of CPC including Order 41, Rule 33, CPC, applicable mutatis mutandis, to the motor accident claims under the Act, Shri Goyal contended that in view of Order 41, Rule 33, CPC, without filing any cross objection, the either party can make submission to support the order and may request for grant of interest from the date of filing of claim petition atleast by this Court at an appellate stage, in case, this Court holds otherwise in contrast to invocation of powers under Section 152, CPC, at the instance of the Tribunal vide impugned order. 8. I have considered rival contentions of the parties and with their assistance, perused the findings recorded by the Tribunal Section 152, CPC, provides for correction of clerical or arithmetical mistakes in Judgment s, decrees or orders or errors arising therein from any accidental slip or omission, which is considered to be ministerial action and does not contemplate of passing effective judicial orders after pronouncement of Judgment or order. 9. It is true that any omission, which is sought to be corrected and goes to the merits of the case, is beyond the scope of Section 152, CPC, for which proper remedy for an aggrieved party lies either to file appeal or review application depending upon facts and circumstances of each case, as the case may be. As regards scope of Section 152, CPC. Apex Court in Dwarka Das vs. State of MP (Supra), observed as under:-“..... It implied that the section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. It has been noticed that the Courts below have been liberally construing and applying province of Section 151 and 152 of the CPC under the cover of aforesaid sections modify, alter or add to the terms of its original Judgment , decree or order. It has been noticed that the Courts below have been liberally construing and applying province of Section 151 and 152 of the CPC under the cover of aforesaid sections modify, alter or add to the terms of its original Judgment , decree or order. In the instant case, the trial Court had specifically held the respondents state liable to pay future interest only despite the prayer of appellant for grant of interest with effect from the date of alleged breach, which impliedly meant that the Court had rejected the claim of the appellant in so far as pendente lite interest was concerned, The mission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial Court.” 10. It was a case, where in commercial contracts the Court passed decree only for future interest but no pendente lite interest was awarded to the plaintiff and on application under Section 152, CPC, trial Court modified the decree and granted such interest which was set aside by the High Court, holding it to be beyond scope of Section 152, CPC, and rightly so, if the interest has been specifically denied in such like commercial contracts, which cannot be considered to be a clerical or arithmetical mistake or omission in the Judgment or decree which can be modified under the ambit of Section 152, CPC. As regards other decision in S. Kadam Singh vs. Union of India (Supra), it was a case where the Tribunal assigned reason for disallowing interest on the amount of compensation and the appeal was preferred before the High Court and the same was dismissed on the premises that once the Tribunal exercised its powers and record reasons for denial of interest on the amount of compensation, no error has been committed in passing of the order. Both the decisions cited by Counsel for appellant, do not render any assistance to the issue raised for consideration in the instant appeal. 11. In the present case, the award has been passed with respect to the grant of compensation to the claimants, which has not been assailed, but the Insurance Company is primarily aggrieved with regard to interest awarded from the date of claim application. 11. In the present case, the award has been passed with respect to the grant of compensation to the claimants, which has not been assailed, but the Insurance Company is primarily aggrieved with regard to interest awarded from the date of claim application. No doubt, grant of interest over the amount computed towards compensation is discretion of the authority under the Act, but it cannot be forgotten that discretion is always to be exercised judiciously. Section 171 of the MV Act empowers the authority to award interest where any compensation is awarded but it should not carry from a date earlier than the date of filing the claim. Consistently in series of decisions of this Court, the interest has been awarded from the date of filing of claim petition and the Tribunals being subordinate was expected to carry out such principle laid down in letter and spirit. 12. A bare reading of impugned order depicts that the Tribunal has not applied its mind independently while recording finding as to why the claimants will not be entitled for award of interest in terms of Section 171 of the Act, from the date of filing claim application, while it has granted interest only in the contingency of non-payment of compensation within 45 days, in as much as on filing application under Section 152, CPC, the Tribunal has expressly recorded finding in the impugned order that it escaped its notice for not awarding interest while awarding compensation to claimants and, therefore, the omission stands corrected by granting interest from the date of filing of claim petition and which is otherwise also a consistent practice while awarding interest under the MV Act. 13. However, undoubtedly, the matter has come up before this Court in appeal, may be for grant of interest in exercise of powers under Section 152, CPC, against the order of Tribunal modifying the award of compensation passed under the Act. In my opinion claimants are justified in raising oral cross objection by invoking Order 41 Rule 33, CPC - scope whereof has been considered by Apex Court in Kok Singh vs. Deokabai, AIR 1976 SC 634 and Mahant Dhangir vs. Madan Mohan, AIR 1988 SC 54 . In my opinion claimants are justified in raising oral cross objection by invoking Order 41 Rule 33, CPC - scope whereof has been considered by Apex Court in Kok Singh vs. Deokabai, AIR 1976 SC 634 and Mahant Dhangir vs. Madan Mohan, AIR 1988 SC 54 . In Kok Singh vs. Deokabai (Supra), the Apex Court observed as under:-“If an appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below, it may pass or make such further or other decree or order as justice of the case may require. Thus, Order 41 Rule 33, the High Court is competent to pass a decree for the enforcement of a charge in favour of the respondent notwithstanding the fact that respondent did not file any appeal from the decree.” In Mahant Dhangir vs. Madan Mohan (Supra), the Apex Court observed as under:-“The appellate Court could exercise power under Rule 33 even if the appeal is only against a part of the decree of the lower Court. The appellate Court could exercise that power in favour of all or any of respondents although such respondent may not have filed any appeal or objection. The sweep of power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass any such other decree or order as the case may be require. The “as the case may require” used in Rule 33 of Order 41 have been put in wide terms to enable the appellate Court to pass any order or decree to meet ends of justice. What then should be the constraint? We do not find many, we are not giving any liberal interpretation. The rule itself is liberal enough. The only constraints that we could see may be these: That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of Judgment of the lower Court. It these two requirements are there, the appellate Court could consider any objection against any part of the Judgment or decree of the lower Court. The question raised must properly arise out of Judgment of the lower Court. It these two requirements are there, the appellate Court could consider any objection against any part of the Judgment or decree of the lower Court. It may be urged by any part to the appeal. It is true that power of the appellate Court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.” (Emphasis added) 14. A bare perusal of Order 41 Rule 33, CPC, makes it explicit that appellate Court has the power to pass all such orders or decrees which could have been passed by trial Court. Thus, it is within powers of appellate Court to consider, whether findings given by trial Court on one or more issues are correct and it is also within its province to consider whether procedure adopted by trial Court was in accordance with the law or it resulted in either any prejudice or injustice. 15. In view of what has been observed above in terms of authoritative law laid down by Apex Court, and abstaining from entering into technicalities and without expressing opinion on the issue raised by Insurance Company as to the scope of Section 152,CPC, as it has become mere academic in view of oral cross objection raised by claimants by invoking Order 41 Rule 33, CPC, I consider that even if the impugned order passed by the Tribunal is not justified under Section 152, CPC, then also this Court as appellate Forum can invoke Order 41 Rule 33, CPC, and in that eventuality ultimate fate would remain the same for grant of interest from the date of filing claim application which originally was not granted by the Tribunal while awarding compensation under the Act but granted vide order impugned dated 19.07.2001 in view of Section 171 of the Act. In this view of the matter, I do not find any substance in this appeal. 16. Consequently this appeal fails and is hereby dismissed. No order as to costs.