Allahabad High Court
Tata A.I.G. General Insurance Co. ... vs Vishnu And 2 Others on 3 March, 2023
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 74
Case :- FIRST APPEAL FROM ORDER No. - 1109 of 2019
Appellant :- Tata A.I.G. General Insurance Co. Ltd .
Respondent :- Vishnu And 2 Others
Counsel for Appellant :- Sushil Kumar Mehrotra
Counsel for Respondent :- A.T. Pandey,Anupam Shyam Dwivedi,Sudhir Dixit,Utkarsh Dixit
Hon'ble Ajay Bhanot,J
1. This instant appeal arises from the judgment and decree/award dated on 22.2.2019, rendered by the Motor Accident Claims Tribunal/13th Additional District Judge, Aligarh in M.A.C.P. No.731 of 2014 (Vishnu vs. Tata A.I.G. General Insurance Company Ltd. and others).
I. Facts of the Case:
2. Briefly, the case of the claimants-respondents before the learned tribunal was that the claimant-respondent was injured in an accident on 26.8.2014 which was caused by the rash and negligent driving of offending driver of Bolero Jeep No. U.P. 81-X/0168. Apart from grievous injuries the respondent-claimant also sustained a permanent disability in the accident. Among losses suffered by the claimants-respondents were recurring a huge loss of income caused by the permanent disability. The Insurance-company resisted the claim of the respondent-claimant before the learned tribunal by filing pleadings.
3. Both parties adduced evidence before the learned tribunal. The learned tribunal partly allowed the claim petition and awarded compensation to the respondents-claimants which is depicted in a tabulated form hereinunder :-
S.No.
Heads
Awarded by the Tribunal
1
Monthly Income (A)
Rs. 5,000/-
2
Annual Income
(A x 12 = B)
Rs. 60,000/-
3
Percentage of Income towards Loss of
Future Prospects (C)
Nothing
4
Annual Income + Future Prospects (B+C = D)
Rs. 60,000/-
5
Deduction towards Personal Expenses (E)
--
Annual Loss of Dependency/Income (D-E = F)
(41% of Annual Income)
= Rs. 24,600/-
Multiplier (G)
Total Loss of Dependency/Income
Rs. 4,42,800/-
Medical Expenses (if any)
Rs. 48,000/-
Loss of Love, Affection & Consortium
Nil
Loss of Estate
Nil
Pain
Rs. 10,000/-
TOTAL COMPENSATION
Rs. 5,00,800/-
Interest
7.00%
II. Arguments of learned counsel for the parties:
4. Shri Sushil Kumar Mehrotra, learned counsel for the appellant-Insurance company submits that though various grounds have been raised in the memo of appeal, only two grounds are being pressed. Firstly, it was a case of contributory negligence which the learned tribunal failed to consider negligence. Secondly, the loss of income awarded to the respondent-claimant was excessive and cannot be justified from the evidence.
5. Shri Ashutosh Pandey, learned counsel for the respondents-claimants raised an oral objection and submits that the future prospects were liable to be added to the compensation which was awarded. The learned tribunal by neglecting to do so has failed to award a just compensation and has also acted in teeth of the law laid down by the Supreme Court in Pappu Deo Yadav vs. Naresh Kumar1.
6. He further contends that this Court can correct the award even in the absence of cross appeal in case it is not consistent with the long held standards of grant of compensation awarded by settled judicial authorities. Reliance is placed upon the judgment of the Supreme Court passed in APSRTC represented by its General Manager vs. M. Ramadevi and others2 and Cholamandalam Ms. General Insurance Co. Ltd. through its Branch Manager vs. Sumitra and others3
7. After some arguments, learned counsel for the parties jointly contend that the following issues fall for consideration in this appeal :-
"a). Whether the accident in which the injured sustained injuries was a result of contributory negligence for which the Insurance Company alone cannot be held liable ?
b) Whether loss of income as determined by the learned tribunal was excessive ?
c) Whether the appellant can raise oral cross-objections at the stage of appeal ?
d) Whether the future prospects are liable to be computed while granting just compensation to the appellants ?"
III. Issue of contributory negligence:
8. The claimant-respondent appeared as PW-1 to establish the fact of the incident and negligence of the offending vehicle.
9. PW-1 Vishnu testified that on the fateful day he was returning after a Ragini performance. He disembarked from the bus and started and walking on the right side of a Kachha path. The offending vehicle which was being driven rashly and negligently, suddenly deviated from the main road onto the kachha path and ran over him. He suffered serious injuries and was hospitalized after the accident. He also saw the offending vehicle colliding with a motor cycle. The two persons riding the motorcycle died at the spot. The driver fled the spot after the accident, however, he recorded the number of the motor vehicle. The police arrived at the spot about 15-20 minutes after the accident. The testimony of witness was not impeached nor his credit was shaken under cross-examination. The learned tribunal which had the benefit of observing the demeanour of the witness found him to be a reliable witness and believe his testimony.
10. The claimant also introduced as evidence the site plan drawn by the police authorities during the police
investigation. The site plan corroborates the testimonies of the eye-witnesses before the tribunal.
11. This facts are thus established by the evidence in the record and in accordance with the applicable standards of proof. The claimant-respondent was a pedestrian, who was walking on the correct side of the road. The offending vehicle was over-speeding and driver of the said vehicle was rash and negligent. The offending vehicle ran over three people successively. Two persons died at the spot, while the claimant was severely injured. The respondent claimant cannot be faulted with in any manner for the accident. The offending driver of the vehicle of Bolero Car was solely responsible for causing the accident. This is not a case of contributory negligence.
12. The vehicle was insured by the appellant-insurance company and the appellant is fully liable to pay the compensation to the respondents-claimants.
IV. Tribunal finding - Discussion:
13. The submission of Shri Sushil Kumar Mehrotra, learned counsel for the insurance company that this is a case of contributory negligence since the respondent-claimant was walking ahead of the motorcycle which also collided with the offending vehicle. The argument is not only misconceived but also supports the case of the claimant-respondent. The Bolero vehicle was being driven in flagrant violation of permissible speed limits and norms of prudent driving and had run over three people successively before it came to the halt.
14. I am afraid that in view of the preceding discussion, the contentions are entirely misconceived and are rejected. The issue of contributory negligence is found against the appellant-Insurance company and in favour of the respondents - claimants.
V. Issue of loss of earning:
15. The injured-claimant has introduced both documentary as well as oral evidence to establish the nature of the disability and consequential loss of income. The discharge bill of Shivam Care Centre where the injured underwent treatment for fracture of his leg after the accident has been duly proved. The disability certificate issued by the Physical Disability Board immediately after the respondent-claimant was discharged, records that the extent of permanent physical disability is 41%. The disability certificate has also been proved.
16. PW-2 - Dr. H.N. Singh Pundir, had testified that he is an ortho surgeon and a member of the Disability Board which had issued the disability certificate to the respondent-claimant. He has duly identified his signature over the disability certificate. PW-2 has deposed that disability certificate depicts weakness caused to a particular part as well as the body of the injured. The disability was caused by a fracture. The testimony of PW-2 was not impeached in the cross-examination. The trial court which had the benefit of observing the witness opined that he is credit worthy and his testimony is liable to be relied upon.
17. In these circumstances, this Court is not persuaded to take any other view on the credit of PW-2 Dr. H.N. Singh Pundeer.
18. In this wake, this Court finds that the permanent disability in which the right leg of the respondent-claimant to the extent of 40% is established by applicable standards of evidence. The unbroken chain of evidence in the record links the accident, injuries, medical treatment and the permanent disability. The disability is directly relatable to the accident caused by the offending Bolero vehicle.
19. The respondent-claimant has asserted that the permanent disability had led to a regular loss of income. The respondent-claimant is a public performer who sings and dances at various public functions. The disability will impede his rythmic dance movements and reduce his public appeal.
20. The learned tribunal has awarded Rs.5,000/- as notional income for determining the compensation. Nothing from the record has been shown to dispute the said finding. The income so computed by the learned tribunal is upheld.
21. The learned tribunal neglected to award any amount under the head of future prospects. The respondent-claimant is entitled for future prospects to the extent of 40% on account of the permanent disability as laid down in the judgment of Supreme Court in Pappu Deo Yadav (Supra).
22. The relevant holding is extracted below in Pappu Deo Yadav (Supra):
"21. This court is also of the opinion that the courts below needlessly discounted the evidence presented by the appellant in respect of the income earned by him. Working in the informal sector as he did, i.e. as a typist/data entry operator in court premises in Delhi, his assertion about earning ₹12,000/- could not be discarded substantially, to the extent of bringing it down to ₹ 8,000/- per month. Such self employed professionals, it is noticeable, were not obliged to file income tax returns for AY 2011-2012, when no levy existed for anyone earning less than ₹ 1,60,000/- per annum.29 The advocate who deposed about the earnings of the appellant was believed to the extent that the tribunal fixed the appellant's monthly earnings at ₹ 8,000/-. If one takes into account contemporary minimum wages for skilled workers (which was in the range of ₹ 8,500/-) the realistic figure would be ₹10,000/- per month. Adding future prospects at 40%30, the income should be taken as ₹14,000 for the purpose of calculation of compensation. Accordingly, this court finds that the compensation payable for the disability of loss of an arm (assessed at 65%) would be ₹19,65,600/- (i.e., ₹ 14,000/- x 12 x 65% x 18) or Rupees Nineteen lakhs sixty five thousand six hundred only."
23. Shri Ashutosh Pandey, learned counsel for the respondent-claimant has raised the cross-objections to the extent that the tribunal neglected to compute future prospects while determining the compesnation and is liable to be entertained.
VI. Issue of oral cross objection:
24. The question whether oral objections can be raised for an enhancement of compensation at the stage of appeal has been well settled by good authorities in point.
25. The jurisdiction of the appellant court to allow a party to take oral objections is traceable to the power of the court of appeal enumerated in Order XLI Rule 33 of the CPC. The Order XLI Rule 33 of the CPC is reproduced hereinafter :-
"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 other decree or order as the case may require, and this order 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 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 decree." (emphasis supplied)
26. The amplitude of the provision ensures that the arms of law are long enough to reach injustice, and the arms of the Court are enough to serve justice. Drawing its power from the aforesaid provision, the appellate court may pass orders to serve the ends of justice.
27. More specifically the beneficent nature of the legislation and the statutory mandate of the Motor Vehicles Act, 1988 enjoin the appellate court to exercise its powers under Order 41 Rule 33 to award just compensation. [See: Jitendra Kimshankar Trivedi and others vs. Kasam Daud Kumbhar and others4, Arun Kumar Agarwal and another vs. National Insurance Company Ltd. and others5]
28. The scope of Order 41 Rule 33 of the CPC the Supreme Court in Mahant Dhangir and another v. Madan Mohan and others6 held:-
"11.The next question for consideration is whether the cross-objection was maintainable against Madan Mohan, the co-respondent, and if not, whether the Court could call into aid Order 41 Rule 33 CPC. For appreciating the contention it will be useful to set out hereunder R. 22 and R. 33 of order 41:
"R. 22 Upon hearing, respondent may object to decree as if he had preferred separate appeal. (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree (but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour, and may also take any cross-objection) to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
R. 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 other decree or order as the case may require, and this order 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 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 decree."
29. The same view was reiterated in Delhi Electric Supply Undertaking vs. Basanti Devi7.
30. Adverting to the extent of powers under Order XLI Rule 33 of the CPC, this Court in National Insurance Co. Ltd. vs. Smt. Vidyawati Devi and others8 held thus:
"Order XLI Rule 33 of the Code of Civil Procedure prescribing the power of court of appeal clearly provides that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made as the case may require, and this power may be exercised in favour of all or any of the respondents or parties though they may not have filed any cross appeal or objection."
31. Following Vidyawati Devi (supra) was followed in New India Assurance Co. Ltd. v. Smt. Suman Mishra and others9. Wherein Thaker, J. permitted counsels to raise oral objections and enhanced the compensation even in absence of written cross objections in appeal by holding:
"44. It is submitted that the amount which is granted is not just compensation and it is orally submitted that the amount of compensation requires to be enhanced in light of Division Bench decision of this High Court in First Appeal From Order No.2389 of 2016 ( National Insurance Co. Ltd. Versus Smt. Vidyawati Devi And 2 Others) decided on 27.7.2016 wherein it is held that under Order 41 Rule 33 of Code of Civil Procedure, amount of compensation can be enhanced even if there is no written appeal or written cross objection. This applies to this case also recently it has been held by Apex Court in North East Karnataka Road Transport Corporation Vs. Smt. Sujatha, AIR 2018 SC 5593 that for beneficial legislation the Court should grant enhancement even if other side is not present.
45. The principles of law pertaining to grant of just compensation cannot be said to have been adhered by Tribunal and therefore, it will have to be re-decided as per the decision in First Appeal From Order No.2389 of 2016 ( National Insurance Co. Ltd. Versus Smt. Vidyawati Devi And 2 Others) decided on 27.7.2016."
32. When the conditions precedent for raising cross objections were satisfied, this Court in Vidyawati Devi (supra) was not found wanting in entertaining the cross objections by holding thus:
"We are of the considered view that the conditions as laid down in provisions of Order XLI Rule 33 are satisfied in the present case. In Delhi Electric Supply Undertaking (Supra) the Hon'ble Apex Court has observed that 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."
33. In wake of the preceding discussion and authorities in point, the oral cross objections on behalf of the claimants-respondents are liable to be heard. However, this Court may mould the relief appropriately to obviate prejudice to either parties.
34. The head of future prospects is well settled by good authorities. There is no dispute about applicability of the said authorities to this case and also the entitlement of the claimant-respondent to future prospects. The grant of future prospects in the facts and circumstances of this case does not require any laboured examination of evidence or elaborate arguments. It is a simple primary level.
35. In this wake, the oral cross objections on behalf of the claimant-respondent are liable to be entertained and allowed to the extent indicated above.
VII. Determination of Compensation to which claimant-respondent is entitled:
36. In the wake of preceding discussion, the amount of compensation awarded to the claimant-respondent is tabulated below:
i. Date of Accident -26.08.2014 at 8.00 P.M.
ii. Name of the injured -Vishnu
iii. Age of the injured -21 years
iv. Occupation of the deceased -To sing in the Jagaran programme
v. Income of the injured - Rs.10,000/-
vi. Name, Age and Relationship of claimant with the deceased/injured
Sr. No.
Name
Age
Relation
Vishnu
S.No.
Heads
Amount (in Rupees)
Monthly Income (A)
Rs. 5,000/-
Annual Income
(A x 12 = B)
Rs. 60,000/-
Future Prospects (C)
40% of Rs. 60,000/-
(Rs. 24,000/-)
Annual Income + Future Prospects (B+C = D)
60,000 + 24,000 =
Rs. 84,000/-
Deduction towards Personal Expenses (E)
Annual Loss of Dependancy
(D-E = F)
(41% of Annual Income)
= Rs. 34,440/-
Multiplier (G)
Total Loss of Dependency/Income
Rs. 6,19,920/-
Medical Expenses (if any)
Rs. 48,000/-
Conventional Heads
Loss of Love, Affection & Consortium
Loss of Estate
Pain
Nil
Nil
Rs. 10,000/-
TOTAL COMPENSATION
Rs. 6,77,920/-
Interest
7%
VIII. Conclusion and Directions:
37. The amount of compensation to which the claimant-respondent has thus been found entitled shall be deposited by the corporation within three months before the learned tribunal. Thereafter the learned tribunal shall release the amount to the claimants without delay. The amount already disbursed to the claimants (if any) shall be duly adjusted.
38. With the aforesaid directions, this appeal is partly allowed.
Order Date :- 03.03.2023
Ashish Tripathi
