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2020 DIGILAW 1593 (KAR)

New India Assurance Co. Ltd. v. Basappa

2020-08-25

MAHESHAN NAGAPRASANNA

body2020
JUDGMENT : Maheshan Nagaprasanna, J. 1. 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 respondent-Insurance Company being aggrieved by the judgment and award dated 02.01.2012 passed by the Principal Senior Civil Judge and Additional Motor Accident Claims Tribunal, Hubli (hereinafter referred to as the Tribunal for short), in M.V.C. No. 102/2011. 3. Parties will be referred to as per their ranking before the Claims Tribunal. 4. Facts giving rise to the filing of the appeal, briefly stated, are that on 28.11.2009 at about 10.00 A.M. daughter of the claimants was on her way to the field at Sunshi village for work, at that time the driver of the Tractor bearing registration No. KA.25/T-2864 driving it in a rash and negligent manner dashed against the deceased Savakka. As a result of the aforesaid accident, the deceased sustained fatal injuries and succumbed to the same on the spot. 5. The claimants namely the parents of the deceased filed a claim petition before the Tribunal under Section 166 of the act on the ground that the deceased was aged 20 years was earning Rs. 5,000/- per month and the family was running on the income derived out of the avocation of the deceased i.e., coolie, and that the loss of the breadwinner of the family has lead the family to penury and accordingly claimed a compensation to the tune of Rs. 10,00,000/- along with interest. 6. After service of notice, respondent Nos. 1 and 3 remained absent and were placed ex-parte. The 2nd respondent-Insurance company appeared through its counsel and filed its written statement denying the age, occupation and income of the deceased and the manner in which the accident had taken place. It also denied that the driver of the tractor was driving it in a rash and negligent manner and specifically contended that the accident had not taken place due to the manner in which the tractor was driven by its driver, but it was due to negligence of the deceased. 7. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. 8. 7. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. 8. The claimants, who are the parents of the deceased in order to prove their case, examined themselves as PWs. 1 & P.W. 2 and got exhibited 5 documents namely Exs. P1 to Ex. P.5. On the other hand, respondent-Insurance Company did not examine any witness but marked one document Ex. R. 1-insurancy policy on its behalf. 9. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident had taken place on account of rash and negligent driving of the driver of the Tractor and held that the claimants are entitled to a compensation of Rs. 2,62,000/- along with interest at the rate of 6% per annum. 10. Being aggrieved, the respondent-Insurance Company has preferred the instant appeal challenging the judgment and award primarily on the ground that the manner in which the accident had taken place was doubtful. 11. Heard Learned Counsel Sri Ravindra R. Mane appearing for appellant and Learned Counsel Sri S.M. Kalwad appearing for claimants. 12. Learned Counsel for the appellant-Insurance company would contend that in terms of the Ex. P.5 postmortem report, the manner in which the accident had taken place is itself doubtful and compensation is wrongly awarded in a doubtful accident, as the death had occurred due to strangulation and not due to the accident. He would further contend that the judgment and award of the Tribunal awarding compensation is required to be set aside solely on the ground that there is no involvement of the tractor in the accident. 13. On the other hand, Learned Counsel for the respondents-claimants would contend that the very Ex. P.5 is a proof that death had occurred due to the accident and not otherwise. He would further contend that the Tribunal has awarded compensation that is opposed to law, as it is opposed to the plethora of judgments of the Apex Court and the High Courts concerning award of compensation. 14. P.5 is a proof that death had occurred due to the accident and not otherwise. He would further contend that the Tribunal has awarded compensation that is opposed to law, as it is opposed to the plethora of judgments of the Apex Court and the High Courts concerning award of compensation. 14. The Learned Counsel would contend, where the death of the deceased of the age of 20 years, it is the age of the deceased that has to be taken for application of multiplier, the Tribunal has taken the age of the mother into consideration for the application of multiplier as a result, the compensation is meager, the income that is taken is far below what is notionally accepted by this Court in all identical cases. But the fact is that, the claimants have not preferred any appeal against the judgment and award of the Tribunal claiming enhancement in compensation. 15. I have given my anxious consideration to the submissions made by the Learned Counsel for the parties and have perused the material on record. 16. Admittedly, the accident had taken place in the year 2009. A cursory perusal at the postmortem report-Ex. P.5 would indicate in unmistakable terms that the accident had occurred due to strangling of the necktie (scarf), when it was caught in a moving machinery to be precise, the language used in the postmortem report, is extracted for ready reference: "A dead body of the female girl aged 20 years moderately built and moderately nourished and average height around 5 having black tongue in beaten in between teeth, pupils-fully dilated. Accidental strangling occurs when a necktie (scarf) is caught in a moving machinery." (Emphasis supplied) 17. Though, in continuation of what is said in the postmortem report with regard to external appearance of the body, in the opinion of the doctor, it is indicated that the death is caused due to asphyxia, which means stoppage of pulse, and it is due to accidental strangulation and damage to the vital organs. The opinion as contended by the Learned Counsel for the appellant-Insurance Company cannot be read in isolation, but will have to be read in tandem with what is said in the description of the external appearance of the body, as extracted hereinabove. The opinion as contended by the Learned Counsel for the appellant-Insurance Company cannot be read in isolation, but will have to be read in tandem with what is said in the description of the external appearance of the body, as extracted hereinabove. Thus, the cause of death of the deceased was the accident and the accident as held by the Tribunal, was due to the rash and negligent driving of the driver of the tractor. Having held so, the appeal requires to be dismissed. Though the appeal requires to be dismissed, what cannot be left unnoticed is the meager sum of compensation granted by the Tribunal on the death of the daughter of the claimants who was aged 20 years. 18. Motor Vehicles Act, 1988, insofar as it pertains to claims arising out of motor accidents, is a social beneficial piece of legislation, it is enacted in favour of the claimants. A sudden loss of a son, or a daughter, that, too, a death caused in prime of youth is a terrible blow to the parents. It is also well-known that one of the most painful moments of life is to be the pall bearer of a deceased son, or a daughter. It is also seen that large number of parents go to deep depression due to the sudden loss of their children. Thus, the emotional vacuum left by the sudden departure of either son or daughter cannot be filled by any monitory compensation. But still, in order to ameliorate this vacuum left by the loss of their son or daughter, a monitory compensation which is, just and proper should be paid to the parents. 19. This Court, in the facts obtaining in the case on hand cannot turn a blind eye to the glaring fact of a meager compensation paid to the parents of the deceased daughter who was 20 years old at the time of the accident. On the ground that the claimants, who by occupation are coolies have not preferred any appeal seeking enhancement of compensation. 20. Hence, in the peculiar facts and circumstances of the case, this Court would exercise its power and discretion under Order XLI Rule 33 of the Code of Civil Procedure and mould the relief which ought to have been granted by the Tribunal. Order XLI Rule 33 of the Code of Civil Procedure reads as follows: "33. 20. Hence, in the peculiar facts and circumstances of the case, this Court would exercise its power and discretion under Order XLI Rule 33 of the Code of Civil Procedure and mould the relief which ought to have been granted by the Tribunal. Order XLI Rule 33 of the Code of Civil Procedure reads as follows: "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-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:" 21. The power of the Appellate Court in terms of the afore quoted statute is interpreted and enunciated by the Apex Court in plethora of judgments to quote a few, The Hon'ble Supreme Court in the case of JC MUTHUSWAMI GOUNDER vs. N. PALANIAPPA GOUNDER : (1998) 7 SCC 327 , has observed thus: "12. Order 41 Rule 33 enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed an appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the court and the question raised properly arises (sic out of) one of the judgments of the lower court and in that event, the appellate court could consider any objection to any part of the order or decree of the court and set it right. We are fortified in this view by the decision of this Court in Mahant Dhangir v. Madan Mohan 1987 Supp SCC 528: AIR 1988 SC 54 ]. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order 41 Rule 33 CPC and each case must depend upon its own facts. The Rule enables the appellate court to pass any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this Rule holds good notwithstanding Order 41 Rule 33 CPC. However, in exceptional cases, the Rule enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeals." (Emphasis supplied) The Hon'ble Supreme Court further in case of BANARSI vs. RAMPHAL (2003) 9 SCC 606 , interprets Order XLI Rule 33 of CPC: "15[Ed: Para 15 corrected as per Official Corrigendum No. E3/Ed.B.J./65/2003]. Rule 4 seeks to achieve one of the several objects sought to be achieved by Ride 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 Ride 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. 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." (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. 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. 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. " 20. A Division Bench decision of the Calcutta High Court in Jadunath Basak v. Mritunjoy Sett AIR 1986 Cal 416 : (1986) 2 CHN 44] may be cited as an illustration. The plaintiff filed a suit for declaration that the defendant had no right or authority to run the workshop with machines in the suit premises and for permanent injunction restraining the defendant from running the workshop. The trial court granted a decree consisting of two reliefs: (i) the declaration as prayed for, and (ii) an injunction permanently restraining the defendant from running the workshop except with the terms of a valid permission and licence under Sections 436 and 437 of the Calcutta Municipal Act, 1951 from the Municipal Corporation. The defendant filed an appeal. The Division Bench held that in an appeal filed by the defendant, the plaintiff cannot challenge that part of the decree which granted conditional injunction without filing the cross- objection:, The Division Bench drew a distinction between the respondent's right to challenge an adverse finding without filing any appeal or cross-objection and the respondent seeking to challenge apart of the decree itself without filing the cross-objection.; The Division Bench held that the latter was not permissible. We find ourselves in agreement with the view taken by the High Court of Calcutta." In a later judgment, the Hon'ble Supreme Court in case of PRALHAD vs. STATE OF MAHARASHTRA (2010) 10 SCC 458 , has held as follows: "18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or 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. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or 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. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression "order ought to have been made " would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require ". This expression "case " would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law. " 22. In terms of the statute and the judgments of the Apex Court as extracted hereinabove, this Court, inappropriate cases, can exercise its power and grant the relief that ought to have been granted by the Tribunal. 23. It is apposite to refer to a judgment of a Learned Division Bench of this Court, wherein this Court exercising power under Order XLI Rule 33 has enhanced the compensation in an appeal filed by the Insurance Company, in the absence of an appeal by the claimant, in the case of ORIENTAL INSURANCE CO. LTD. vs. AKKAYAMMA ILR 2009 KAR 24. 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 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 anyone 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 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 ". 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 ". 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 AIR 1998 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) KLJ 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 Supp 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 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 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. I 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". (Emphasis supplied) 24. 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". (Emphasis supplied) 24. In view of the law laid down by the Hon'ble Supreme Court and the Learned Division Bench of this Court this Court, in the decisions referred to supra, if it is clear from the judgment of the Tribunal that the Tribunal has committed a grave error resulting in the compensation awarded being grossly inadequate having regard to the law of award of compensation, in order to do justice, this Court should exercise discretionary power under Order 41 Rule 33 C.P.C. Thus, in my considered view, this is a fit case in which the exercise of powers under Order 41 Rule 33 C.RC. is warranted. Hence, I deem it appropriate to enhance the compensation in favour of the claimants notwithstanding the feet that they have not preferred any appeal against the judgment and award of the Tribunal seeking such enhancement. 25. Admittedly, the claimants have not produced any evidence to show that the income of the deceased was at Rs. 5,000/-. Therefore, the notional income has to be fixed as per the Guidelines/Chart issued by the Karnataka High Court Legal Services Committee. Since the accident has taken place in the year 2009, the notional income has to be taken at Rs. 5,000/- per month. 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 the case of NATIONAL INSURANCE COMPANY LIMITED vs. PRANAY SETHI AND OTHERS: AIR 2017 SC 5157 . Thus, the monthly income comes to Rs. 7,000/-. Out of which, I deem it appropriate to deduct 50% towards personal expenses and therefore, the monthly dependency comes to Rs. 3,500/-. Taking into account the age of the deceased which was 20 years at the time of accident, multiplier of "18" has to be adopted. The claimants are entitled to Rs. 7,56,000/- (` 3,500 X 12 X 18) on account of loss of dependency. 26. 3,500/-. Taking into account the age of the deceased which was 20 years at the time of accident, multiplier of "18" has to be adopted. The claimants are entitled to Rs. 7,56,000/- (` 3,500 X 12 X 18) on account of loss of dependency. 26. In view of the law laid down by the Hon'ble Supreme Court in the case of MAGMA GENERAL INSURANCE CO. LTD. vs. NANURAM, 2018 ACJ 2782 , which is reiterated and affirmed, except for grant of compensation under the head of loss of love and affection, by a Three Judges. Bench of the Hon'ble Supreme Court in the case of UNITED INDIA INSURANCE CO. LTD., vs. SATINDER KAURAND OTHERS, which is further in the case of THE NEW INDIA ASSURANCE COMPANY LIMITED vs. SMT. SOMWATI AND OTHERS1, the claimants are entitled to Rs. 40,000/- each towards loss of consortium totally it would be Rs. 80,000/- and Rs. 15,000/- towards loss of estate and Rs. 15,000/- towards loss of funeral expenses. Hence, the claimants are entitled to total compensation of Rs. 8,66,000/- as against Rs. 2,62,000/- awarded by the Tribunal. However, it has made clear, since the claimants have not preferred any appeal against the judgment and award of the Tribunal, they shall not be entitled to any interest on the afore determined enhanced compensation. To the aforesaid extent, the judgment of the Claims Tribunal is modified. Accordingly, the appeal is disposed of. The amount in deposit before this Court, if any, shall be transferred to the Tribunal forthwith.