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2012 DIGILAW 80 (ORI)

NEW INDIA ASSURANCE CO. LTD. v. KOILI BAG

2012-02-10

V.GOPALA GOWDA

body2012
JUDGMENT : V. Gopala Gowda, C.J. - This appeal at the instance of the Insurance Company, is directed against the judgment and award dated 26th September, 2000 passed by the District Judge-cum-First M.A.C.T., Sambalpur urging following grounds. The first ground of attack of the impugned judgment is that the vehicle involved in the accident is a jeep. The deceased was travelling as a gratuitous passenger. Therefore, the Insurance Company is not liable to pay the compensation awarded by the Tribunal and is liable to pay compensation only towards third party and the owner of the vehicle in question is liable to pay the compensation. The second ground of attack of the impugned judgment is that the witnesses were examined namely, officer of the Insurance Company-OPW 2, clerk and the RTO is examined to prove the fact that on the date of accident, the driver who has driven the offending vehicle did not possess valid and effective licence as required in law as his licence was expired on 6th June, 1993 despite there is a legal evidence in this regard. The Tribunal has not accepted the same and recorded the finding in favour of the Insurance Company and not fastened the liability upon the insured-owner of the vehicle as he has not indicated that the driver had a valid and effective licence. In view of Section 149 of the Motor Vehicles Act, 1988 the awarded compensation has to be paid to the claimants by the Insurance Company with the liberty to recover the same from the owner in view of the decision of the Apex Court in the case of National Insurance Co. Ltd. Vs. Swaran Singh and Others. Since the recovery right has not been given by the Tribunal, the finding of fact on the contentious issue recorded by the Tribunal is erroneous and liable to be set aside. 2. Learned Counsel for the claimants not only sought to justify the award but also requested this Court to enhance the compensation by invoking the power of this Court under Order 41 Rule 33 of the C.P.C. as the Tribunal has not awarded just and reasonable compensation to the claimants even though an appeal or cross-appeal is not filed by the claimants placing strong reliance on the decision of the Apex Court in the case of Delhi Electric Supply Undertaking Vs. Basanti Devi and Another. Basanti Devi and Another. He further contended that the Tribunal has not discharged its statutory duty in determining just and reasonable compensation as the deceased was 30 years old and his income is taken to be Rs. 30,000 per annum without applying Second Schedule of the Act even in absence of producing proof of actual income. As per the Second Schedule, the maximum annual income should have been taken as Rs. 40,000. He submits that having regard to the facts of the case, the income should have been taken at least Rs. 36,000 per annum. Deducting 1/3rd there from, the income shall be Rs. 24,000. Having regard to the age, as per judgment of the Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, the multiplier should have been 17 and not 16. Therefore, the claimants have prayed for enhanced compensation by modifying the impugned award, setting aside the finding on the contentious issue in fastening tire liability and giving the right of recovery to the Insurance Company which has not been done by the Tribunal. 3. With reference to the aforesaid rival legal contentions, the following points would arise for determination. (i) whether the finding recorded on the contentious issue and not giving the right of recovery to the insurer, is legal and valid? (ii) whether the determination of the compensation by the Tribunal is just and reasonable. If that is not so, this Court is required to enhance the compensation invoking its power under Order 41 Rule 33 of C.P.C.? (iii) what is the enhancement, the claimants are entitled? (iv) what award? 4. The first point is required to be answered in favour of the Insurance Company for the following reasons. It is an undisputed fact that the accident had taken place on 13th March, 1997. The vehicle was driven by the driver. On the date of accident, he did not possess valid and effective driving licence as the same expired on 6th June, 1993 which is evident from Ext. D supported by the evidence of O.P.W. 2, an officer of the office of jurisdictional R.T.O. However, the Tribunal is erred in law in not giving the appellant the right to recover the compensation awarded, from the owner. Further the Tribunal has not taken into consideration the fact that the deceased was travelling as a gratuitous passenger. D supported by the evidence of O.P.W. 2, an officer of the office of jurisdictional R.T.O. However, the Tribunal is erred in law in not giving the appellant the right to recover the compensation awarded, from the owner. Further the Tribunal has not taken into consideration the fact that the deceased was travelling as a gratuitous passenger. Although notice was issued by the Tribunal to the owner-respondent No. 7, he did not choose to appear and accordingly he was set ex parte. Similarly, in the appeal filed in this Court, though notice was served on him, he did not appear. Mr. Rao submits that as per Section 149 of the Motor Vehicles Act, right to recover the compensation is to be given to the Insurance Company with reference to the decision of the Apex Court in the case of the National Insurance Co. Ltd. v. Swaran Singh and Others (supra). Accordingly, the right is given to the Insurance Company to recover from the owner, the amount of compensation which has already been awarded along with the amount which is going to be enhanced in this appeal. 5. The point Nos. 2 and 3 are required to be answered in favour of the claimants for the following reasons. The accident had taken place on 13th March, 1997. The Tribunal has taken the annual income of the deceased at Rs. 30,000 for the purpose of computation of compensation payable to the claimants deducting Rs. 18,000 towards his contribution to the family. The Tribunal has ignored the Second Schedule wherein even in the absence of the evidence to prove the income of the deceased, it can be taken as Rs. 40,000 as annual income for the purpose of determining the compensation which principle is applicable to this case. It would suffice to take the annual income as Rs. 36,000. As he was aged 30 years and is a married person, after deduction of 1/3rd, the amount would be Rs. 24,000. Considering the fact that the deceased lost his life at an young age and the wife lost her husband, therefore, it would be just and proper for this Court to invoke its power under Order 41 Rule 33 of C.P.C.. Though the cross-appeal has not been filed, in view of the decision of the Supreme Court in the case of Delhi Electricity Supply Undertaking (supra), claimants are entitled for enhancement. Though the cross-appeal has not been filed, in view of the decision of the Supreme Court in the case of Delhi Electricity Supply Undertaking (supra), claimants are entitled for enhancement. Paragraphs 17 and 18 thereof are relevant wherein certain principles have been laid down. The same is extracted hereunder for determination of just and reasonable compensation to the claimants for which they are legally entitled: 17. In our approach we can also draw strength from the provisions of Rule 33 of Order 41 of the CPC which is as under- 33. Power of Court of Appeal--The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although, an appeal may not have been filed against such decrees: Provided that, the Appellate Court shall not make any order u/s 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. 18. This provision was explained by this Court in Mahant Dhangir and Another Vs. Madan Mohan and Others in the following words (at P. 58 of AIR)-- The sweep of the 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 such other decree or order as the case may require. The words '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 the ends of justice. What then should be the constraint? The appellate Court could also pass such other decree or order as the case may require. The words '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 the 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 constraint 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 the judgment of the lower Court. If these two requirements are there, the appellate Court could consider any objection against any part or the judgment or decree of the lower Court. It may be urged by any party to the appeal. It is true that the 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. 6. Applying the principle laid down in the case of Sarla Verma (supra), the multiplier would be 17 and not 16. Therefore, the total compensation would be Rs. 24,000 x 17 = Rs. 4,08,000. After deducting Rs. 2,00,000 already awarded, the enhanced compensation would be Rs. 2,08,000 which will carry interest @ 6% from 1st January, 2004 till the date of payment. The appeal is partly allowed. The impugned award is modified by enhancing the compensation from Rs. 2,00,000 to Rs. 4,08,000 with interest at 6% from the date as mentioned above. It is submitted that the amount awarded by the Tribunal has already been paid in the certificate proceedings. The Insurance Company is directed either to deposit or pay the enhanced amount with interest, as directed with liberty to recover the same from the insured. The enhanced compensation shall be apportioned to the claimants in the same ratio as per the impugned award of the Tribunal. The Registry is directed to draw up the award in terms of this judgment.