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2023 DIGILAW 500 (KAR)

Branch Manager v. Ramya

2023-03-24

N.S.SANJAY GOWDA

body2023
JUDGMENT 1. The Insurer is in appeal challenging the quantum of compensation awarded. 2. It is principally argued that the compensation awarded towards loss of dependency, loss of consortium and loss of care and guidance for minor children is excessive. 3. It is noticed that the Tribunal has attributed negligence to the extent of 25% on the deceased. 4. Learned counsel for the claimants contended that though the claimants have not filed a cross objection, they would, nevertheless, be entitled to contend that the finding regarding contributory negligence was incorrect. 5. Learned Counsel for the Insurer contends that in an appeal filed by the Insurer challenging the quantum of compensation, this question cannot be gone into, especially when the claimants had not filed an appeal or cross objection and had accepted the finding regarding negligence attributed on the deceased. He relied upon the ruling of the Apex Court rendered in the case of SHIVAWWA & ANOTHER Vs. BRANCH MANAGER, NATIONAL INDIA INSURANCE COMPANY LIMITED & ANOTHER - AIR 2018 SC 1640 in this regard. 6. Learned counsel for the Insurer has also placed reliance on the judgment of the Apex Court in the case of RANJANA PRAKASH & OTHERS Vs. DIVISIONAL MANAGER & ANOTHER - 2012 AIR SCW 848. 7. It is no doubt true that the claimants have not preferred any appeal either seeking for enhancement or challenging the findings recorded by the Tribunal regarding negligence. 8. Order XLI Rule 33 of Civil Procedure Code, 1908 ('CPC' for short) confers the power on the Appellate Court to pass any decree or order or make any order which ought to have been passed or made and it is also empowered to pass or make such further or other decree or order as the case may require. In fact, Order XLI Rule 33 of CPC clearly states that this power of the Appellate Court could be exercised by it notwithstanding the fact that the appeal was only a part of the decree and could also be exercised in favour of all or any of the respondents or parties, although such respondents or parties have not preferred any appeal or cross objection. It is, therefore, clear that the power of the Appellate Court is a plenary power and the Appellate Court is entitled to pass any order which was required to have been passed by the Court of the first instance. 9. It is, therefore, clear that the power of the Appellate Court is a plenary power and the Appellate Court is entitled to pass any order which was required to have been passed by the Court of the first instance. 9. It is to be noticed here that in the judgment in the case of Shivawwa cited supra, the Apex Court came to the conclusion that the compensation could not be enhanced since no attempt had been made before the High Court seeking for higher compensation. The said decision can, therefore, have no application to the present case. 10. As far as reliance on the decision in the case of Ranjana Prakash's cited supra is concerned, the Apex Court has stated that whenever an appeal is filed challenging the quantum of compensation, irrespective of who files an appeal, the appropriate course for the High Court is to examine the fact, apply the relevant principles and determine the just compensation. Thus, according to this decision, it is the duty of the High Court to examine the facts, apply the relevant principles and determine the just compensation payable. It is no doubt true that in the said decision, it is also stated that the High Court cannot obviously increase the compensation in an appeal by the owner/Insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking for enhancement. It is to be stated here that as a matter of fact, in this case, the compensation is not being enhanced in an appeal by the Insurer. This Court in exercise of the powers under Order XLI Rule 33 of CPC is merely examining the findings recorded by the Trial Court regarding negligence. Therefore, reliance placed on Ranjana Prakash's case is also of no avail. 11. It may also be pertinent to state here that the Apex Court in the case of MONA BAGHAL Vs. SAJJAN SINGH YADAV - SLP (C) No.29207/2018 has declared that it is settled law that in the matter of compensation, the amount actually due and payable is to be awarded, despite the claimants having sought for lesser amount and their claim petition being valued at lesser value. It is, therefore, clear that the ultimate object of the Court should be to award just compensation and a technicality should not be an impediment for ensuring that just compensation is awarded. 12. It is, therefore, clear that the ultimate object of the Court should be to award just compensation and a technicality should not be an impediment for ensuring that just compensation is awarded. 12. It may also be kept in mind that the entire proceeding under the Motor Vehicles Act is a proceeding in which the just compensation to be paid to a victim of a motor vehicle accident is to be determined. It is also settled law that the pleas raised by the parties before the Motor Accident Claims Tribunal would not be an impediment to pass an order, which the circumstances of the case may so require. In this view of the matter, notwithstanding the fact that the cross objection has not been preferred, it is still open for this Court to examine the correctness of findings rendered by the Tribunal. 13. In this case, the Tribunal has attributed 25% negligence on the deceased on the ground that the deceased was crossing the road at a place where he was not permitted to cross. The accident in question occurred on a national highway. The charge sheet in this case was laid against the driver of the lorry. It cannot in dispute that the driver of the lorry sits in an elevated position and therefore, he will have a clear view of the road and as a consequence, would be able to see the pedestrian the moment he steps on the road. In these circumstances, merely because the deceased was crossing the road that would not lead to an inference that he had contributed to the accident to an extent of 25%. 14. It may also be pertinent to mention here that the driver of the lorry was not examined to establish that there was negligence on the part of the deceased in the manner of crossing of the road. In the light of these facts, in my view, it would be appropriate to set aside the finding of the Tribunal that the deceased had contributed to the accident of 25%. As a consequence, the claimants would be entitled for payment of entire compensation from the Insurer, notwithstanding the fact that they had not preferred any cross objection or appeal against the findings regarding contributory negligence. 15. As a consequence, the claimants would be entitled for payment of entire compensation from the Insurer, notwithstanding the fact that they had not preferred any cross objection or appeal against the findings regarding contributory negligence. 15. The Tribunal, while determining the compensation, has assessed the notional income of the deceased at Rs.8, 000.00 since there was no credible evidence to establish the actual income of the deceased. In such cases, it would be prudent and appropriate to adopt the notional income determined by the Karnataka State Legal Services Authority, which, for the accident of the year 2014, would be Rs.8, 500.00. Since the deceased was aged 30 years, 40% requires to be added towards future prospects, which makes his income to be Rs.11, 900.00. If 1/3rd is deducted towards his personal expenses, his income would be Rs.7, 934.00. 16. Since the deceased was aged 30 years, the multiplier to be adopted would be "17". 17. As a consequence, the claimants would be entitled to Rs.16, 18, 536.00 (Rs.7, 934.00 X 12 X 17) towards loss of dependency. 18. The claimants, being the wife and children of the deceased, each would be entitled to Rs.44, 000.00 i.e., Rs.1, 32, 000.00 towards loss of consortium. In addition, they are also entitled to Rs.33, 000.00 under conventional heads. 19. A sum of Rs.3, 08, 991.00 awarded towards medical expenses, being based on documentary evidence, is affirmed. 20. Thus, the claimants, in modification of the impugned award, would be entitled to the following sums: 21. Thus, the claimants would be entitled for compensation of Rs.20, 92, 527.00 as against Rs.22, 25, 991.00 awarded by the Tribunal, along with interest at the rate of 6% per annum from the date of petition till its realization. 22. The Insurance Company is directed to deposit the amount of compensation awarded within a period of two months from the date of receipt of a certified copy of this judgment. 23. The amount in deposit, if any, shall be transferred to the Tribunal for disbursal in terms of the award. The appeal is accordingly disposed off.