Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1180 (KAR)

Ramamurthy v. R. G. Prashanth

2020-06-23

ALOK ARADHE, M.NAGAPRASANNA

body2020
JUDGMENT M.Nagaprasanna, J. - This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties. 2. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment dated 7.9.2016 passed by the Additional Senior Civil Judge and Motor Accident Claims Tribunal-XI, Tumakuru, in M.V.C. No.1488/2014. 3. Facts giving rise to the filing of the appeal briefly stated are that on 22.8.2014 at about 5.00 p.m., the deceased, who was working as a coolie, along with other coolies had been to work of loading and unloading manure in the tractor-trailer bearing registration No.KA- 16-T-7017-7018. After unloading manure at Annenahalli, Tumakuru taluk, while proceeding to Koratagere near Singonahalli gate, the deceased met with an accident due to rash and negligent driving of the driver of the bus bearing registration No.KA-06-C-1791. As a result of the aforesaid accident, the deceased sustained multiple injuries and succumbed to the same. 4. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 24 years at the time of accident and was employed as coolie and was earning Rs. 6,000/- p.m. The claimants claimed compensation to the tune of Rs. 10.00 lakhs along with interest. 5. On service of notice, the 1st respondent filed its written statement refuting the petition averments contending that the bus was sold to one Patharaju and at the time of accident, he was not in possession of the bus and he was not a proper and necessary party. The vehicle was insured with the 2nd respondent-insurance company and the policy was in force and there cannot be any claim against him. The 2nd respondent-insurance company, however, contended that the driver of the bus did not have a valid driving licence and the bus did not have permit and fitness certificate to ply on the road and no case was registered against the tractor and trailer. The insurance company also denied that the accident occurred due to rash and negligent driving of the bus by its driver and the compensation claimed by the claimants was contended to be highly excessive and exorbitant. 6. The insurance company also denied that the accident occurred due to rash and negligent driving of the bus by its driver and the compensation claimed by the claimants was contended to be highly excessive and exorbitant. 6. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined two witnesses namely, claimant No.1 examined himself as PW-1 and an independent witness as PW-2 and got exhibited 7 documents namely Ex.P1 to Ex.P.7. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the bus by its driver, as a result of which, the deceased sustained injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs. 9,20,000/- along with interest at the rate of 9% p.a. Being aggrieved, this appeal has been filed by the claimants challenging the quantum of compensation awarded by the Tribunal. 7. Learned counsel for the appellants would contend that the Tribunal has erred in granting a compensation towards loss of dependency taking Rs. 6,000/- as monthly income of the deceased, though in the examination in chief of P.W.1, it was contended that the deceased was earning Rs. 12,000/- per month. The learned Counsel would further contend that the sum awarded on all other heads by the Tribunal is on the lower side and requires to be enhanced. 8. On the other hand, learned counsel for the respondent-Insurance Company would contend that the Tribunal has rightly taken Rs. 6,000/- per month as salary of the deceased as the pleading before the Tribunal by the claimants was that the deceased was earning a salary of Rs. 6,000/- per month and hence, the Tribunal has rightly assessed the monthly income of the deceased at Rs. 6,000/- and hence, the compensation awarded is just and reasonable and does not warrant any interference. 9. We have considered the submissions made by the learned counsel for the parties and have perused the record. The only issue that arises for our consideration is with regard to the quantum of compensation. 10. The claimants before the Tribunal had claimed that the deceased was earning Rs. 6,000/- per month and had claimed an amount of Rs. 10,00,000/- as compensation. The only issue that arises for our consideration is with regard to the quantum of compensation. 10. The claimants before the Tribunal had claimed that the deceased was earning Rs. 6,000/- per month and had claimed an amount of Rs. 10,00,000/- as compensation. But it is to be noticed that, in the examination-in-chief of P.W.1 i.e., claimant No.1-father of the deceased, the monthly income that was claimed was Rs. 12,000/- per month though in the memorandum of the claim petition, it was stated to be Rs. 6,000/- per month. There was no evidence produced before the Tribunal for assessment of monthly income either at Rs. 6,000/- or at Rs. 12,000/-. Though the claimants have stated that the income of the deceased is Rs. 6,000/- per month, it is contrary to even the notional income drawn up by the High Court Legal Services Committee as per the chart in the cases where there is no evidence with regard to income. This would vary the compensation in favour of the claimants as the notional income depicted in the chart for the accident of the year 2014 is Rs. 8,500/- per month. 11. This Court in exercise of its power under Order XLI Rule 33 of Code of Civil Procedure, 1908, can grant the relief which ought to have been granted by the Tribunal in a claim arising under the Act where the Tribunal has failed to award just and reasonable compensation. This Court in the case of ORIENTAL INSURANCE CO. LTD. V. AKKAYAMMA, (2009) ILR(Kar) 24 has held thus: "9. The Learned Counsel appearing for the respondent Nos. 1 to 6 who are the claimants in the court below contended that though the claimants have not filed any cross objections or independent appeal, since the tribunal has committed serious error of law and procedure, while computing the loss of dependency by not taking the gross salary as reflected in the salary certificate at Ex.P-8, and has erroneously, applied split multiplier method, this Court in exercise of its power under order 41 Rule 33 CPC should grant the relief which ought to have been granted by the tribunal, as in a claim arising under Motor Vehicles Act, the Tribunal is required to award just and reasonable compensation. 10. Order 41 Rules 33 of CPC reads as under: "Order XLI Rule 33. 10. Order 41 Rules 33 of CPC reads as under: "Order XLI Rule 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 made and to pass or make 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 suite 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 under Section 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. 11. The question as to what is the power of Appellants Court under Order 41 Rule 33 of CPC and as to under what circumstances, the Appellant Court should exercise this discretionary power have come up for consideration both before the Apex Court and before this Court in several cases. 12. The leading case on this question is the decision of the Hon'ble Supreme Court in the case of Panna Lal v. State of Bombay, (1963) AIR SC 1516 . In this reported decision the Hon'ble Supreme Court, after referring to Rule 33 of Order 41 has stated thus in paras 12 and 14; "12. Even a bare reading of O.41 R.33 is sufficient to convince any one that the wide wording, 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 Appellant 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". It empowers the Appellant 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". In the present case, if there was no impediment in law the High Court could therefore, though allowing the appeal of the State by dismissing the plaintiff's suits against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the section make this position abundantly clear the illustration puts the position beyond argument. 14. The whole argument is based on the assumption that the plaintiff could by filing a cross-objection under O.41 R.22, C.P.C., have challenged the Trial Court's decree in so far as it dismissed the suit against the defendants other than the State. We are not, at present advised, prepared to agree that if a party who could have filed a cross-objection under O.41 R.22 of the Code of Civil Procedure has not done so, the Appeal Court can under no circumstance give him relief under the provisions of O.41 R.33 of the Code. It is, however, not necessary for us to discuss the question further as, in our opinion, the assumption made by the High Court that the plaintiff could have filed a cross-objection is not justified." In the case of Giani Ram v. Ramlal, (1969) 1 SCC 813 : AIR 1969 SC 1144 .], the Supreme Court while explaining the meaning of expression "which ought to have been passed" occurring in Order 41 Rule 33 of CPC has held that the said expression mean "what ought in law to have been passed". Following this observation, again the Apex Court in the case of Kosingh v. Smt. Deokabai, (1976) 1 SCC 383 : AIR 1976 SC 634 .] in paras 6 and 7 has observed thus: "6. Following this observation, again the Apex Court in the case of Kosingh v. Smt. Deokabai, (1976) 1 SCC 383 : AIR 1976 SC 634 .] in paras 6 and 7 has observed thus: "6. In Giani Ram v. Rami Lal, (1969) 3 SCR 944 + ( (1969) 1 SCC 813 : AIR 1969 SC 1144 ) the court said that in O.41 R.33 the expression "which ought to have been passed" means "what ought in law to have been passed" and 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 the justice of the case may require. 7. Therefore, we hold that even if the respondent did not file any appeal from the decree of the Trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge". 13. A Learned Single Judge of this Court in the case of Smt. Kanthamma v. Nanjunda Devaru,1998 ÌLR(Kar) 4271 has followed the principles laid down by the Apex Court in the aforesaid cases. A division bench of this Court in the case of Patel Chandrappa v. Hanumanthappa, (1990) 3 KarLJ 264 has granted reliefs to certain parties who have not come up in appeal against the judgment of the Trial Court. The Division Bench in this reported decision has observed that having regard to the provisions contained in Rule 33 of Order 41 of CPC, it is the duty of the Court to grant relief to them if in law they are entitled to a share in the suit schedule property. 14. Again the Hon'ble Supreme Court in Delhi Electric Supply Undertaking v. Basanti Devi, (1999) 8 SCC 229 : AIR 2000 SC 43 .] has considered the powers of Appellants Court under Order 41 Rule 33 of CPC. Relevant observations are found in para 18 and 19 which read thus: "18. 14. Again the Hon'ble Supreme Court in Delhi Electric Supply Undertaking v. Basanti Devi, (1999) 8 SCC 229 : AIR 2000 SC 43 .] has considered the powers of Appellants Court under Order 41 Rule 33 of CPC. Relevant observations are found in para 18 and 19 which read thus: "18. This provision was explained by this Court in Mahant Dhangir v. Madan Mohan, (1987) Supp1 SCC 528 : (1987 Supp SCC 528 : AIR 1988 SC 54 ) 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 corespondents. 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 required" 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 constrain? 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. In these two requirements are there, the appellate court could considered any objection against any part of 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. 19. Conditions as laid in provision of Order 41, Rule 33 are satisfied in the present case. When circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the Court cannot be found wanting when it comes to exercise its powers". 15. The Court should not refuse to exercise that discretion on mere technicalities. 19. Conditions as laid in provision of Order 41, Rule 33 are satisfied in the present case. When circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the Court cannot be found wanting when it comes to exercise its powers". 15. In view of the law laid down by the Hon'ble Supreme Court and this Court in the decisions referred to supra, if it is clear from the judgment of the tribunal that the tribunal has committed grave error while computing the loss of dependency by applying improper method and when it is apparently noticed that the compensation awarded is grossly inadequate having regard to the legal evidence placed on record by the claimants, in order to do complete justice, this court should exercise discretionary power under Order 41 Rule 33 C.P.C. In the light of discussion made above, we are of the opinion that this is a fit case in which the exercise of powers under Order 41 Rule 33 C.P.C. is warranted, as the compensation awarded by the Tribunal is grossly inadequate. " In terms of the judgment of the learned Co-ordinate Bench (Supra), this Court would be well within its power in an appeal to enhance the compensation awarded by the Tribunal, notwithstanding its basis being the income pleaded by the claimants at Rs. 6,000/- per month, as it is far less than even the notional income for an accident of the year 2014, which is Rs. 8,500/- per month. Thus, in order to do complete justice, we are inclined to award a compensation taking the income at Rs. 8,500/- per month as against Rs. 6,000/- determined by the Tribunal, which in our view is just and reasonable. 12. The accident has taken place in the year 2014 and the notional income has to be taken at Rs. 8,500/- p.m. To the aforesaid amount, 40% has to be added on account of future prospects in view of the law laid down by the Constitution Bench of the Supreme Court in ' NATIONAL INSURANCE COMPANY LIMITED Vs. PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 . Thus, the monthly income comes to Rs. 11,900/-. Out of which, we deem it appropriate to deduct 50% towards personal expenses and therefore, the monthly dependency comes to Rs. 5,950/-. PRANAY SETHI AND OTHERS, (2017) AIR SC 5157 . Thus, the monthly income comes to Rs. 11,900/-. Out of which, we deem it appropriate to deduct 50% towards personal expenses and therefore, the monthly dependency comes to Rs. 5,950/-. Taking into account the age of the deceased, who was 24 years at the time of accident, multiplier of 18 has to be adopted. Thus, the claimants are entitled to Rs. 12,85,200/- on account of loss of dependency. 13. In view of the law laid down by the Supreme Court in ' MAGMA GENERAL INSURANCE CO. LTD. Vs. NANU RAM, (2018) ACJ 2782 , the claimants, being three in number, are entitled to Rs. 40,000/- each as loss of consortium and loss of love and affection. Thus, the total amount of compensation under this head is assessed at Rs. 1,20,000/-. In addition, the claimants are entitled to Rs. 30,000/- on account of loss of estate and funeral expenses. Thus, the claimants are entitled to total compensation of Rs. 14,35,200/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeal is disposed of.