Bombay High Court
Hdfc Ergo General Insurance Co. Ltd., ... vs Yakub Zumbar Shaikh And Anr on 24 March, 2025
2025:BHC-AUG:8620
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 2100 OF 2019
WITH
CIVIL APPLICATION NO.13485 OF 2019
HDFC ERGO General Insurance Company Limited,
Through It's Branch Manager,
6th Floor, Leela Business Park,
Andheri Kurla Road, Andheri [E],
Mumbai - 400 059
Through Its Branch Manager / Authorized Signatory
Branch Offce at : 1st Floor, Renuka Commercial Complex
Nirala Bazar, Nageshwar Wadi, Aurangabad
Dist. Aurangabad ....Appellant
VERSUS
1. Yekub Zumber Shaikh,
Age: 31 Years, Occupation : Labour,
R/o. Mathani, Tq. Nagar,
Dist. Ahmednagar
2. Abasaheb Narhari Gavane
Age : 43 years, Occu. Business,
R/o. Velturi, Tal. Ashti,
Dist. Beed .....Respondents
.....
Mr. Mohit R. Deshmukh, Advocate for the Appellant
Mr. Rajendra B. Dhakane, Advocate for Respondent No.1
.....
CORAM : NEERAJ P. DHOTE, J.
Reserved On : 12th March, 2025
Pronounced On : 24th March, 2025
JUDGMENT :
1. The Appellant - Insurance Company has fled this Appeal
under Section 173 of the Motor Vehicles Act, 1988 [hereinafter
referred to as the 'M.V. Act'], taking exception to the Judgment and
Order / Award dated 15/06/2018, passed by the Member, Motor
Accident Claims Tribunal, Ahmednagar, in Motor Accident Claim
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Petition [MACP] No.624/2015, granting compensation to the
Respondent No.1 [hereinafter referred to as 'Claimant'] to the tune
of Rs.9,20,823/- [Rupees Nine Lakhs Twenty Thousand Eight
Hundred Twenty Three Only] along with interest @ 8% per annum
from the date of Application till its realization.
2. The facts giving rise to the present Appeal are as under :-
[I] The Claimant was engaged as a Labourer by one agriculturist
named Uddhav Rajaram Ghorpade, resident of Village - Mathani,
Taluka Nagar, District Ahmednagar. On 05/03/2014, the Claimant
was engaged in harvesting of Wheat and Gram. For the said work
of harvesting, a Tractor bearing No.MH-23-T-4176 owned by
Respondent No.2 [hereinafter referred to as 'Owner'] and insured
with the Appellant - Insurance Company was being used with
Threshing / Grinding Machine attached to it. During the said work,
the Tractor came in reverse direction due to the negligence of the
Tractor Driver and the Claimant fell down and he suffered serious
injury in his left leg. The Claimant was taken to the Noble Hospital,
Ahmednagar for treatment. Due to the said accident, the Claimant
lost his left leg.
[II] While taking treatment in the said Hospital as an indoor
Patient, the statement of the Claimant came to be recorded on
19/03/2014 and Crime No.49/2014 came to be registered with the
Nagar Taluka Police Station for the offence punishable under the
relevant Sections of the Indian Penal Code, 1860 [hereinafter
referred to as 'I.P.C.'] and M. V. Act against the Tractor Driver. The
investigation in the said Crime was conducted and necessary
Report came to be submitted before the Competent Court. The
Claimant fled the above referred Claim Petition for compensation
under Section 166 of the M.V. Act before the learned Tribunal
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against the Owner and Insurer of the Tractor. The Claim proceeded
ex-parte against the Owner. The Insurance Company submitted
their Written Statement at Exhibit - 13 and denied the Claim and
also denied the involvement of the said Tractor in the accident and
contended that, the history given at the time of admission in the
Hospital was 'accidental insertion of left leg in grinding machine'
and the said Tractor was not involved in the accident. It was
contended that, false Report was lodged by the Claimant, the
Driver of the Tractor was not arrayed as the Respondent in the
Claim Petition, the Tractor Driver was not having valid and
effective driving license and the monthly income of the Claimant
was denied.
[III] The learned Tribunal framed the four [4] issues on the basis
of pleadings and recorded the fndings against the same as under :-
ISSUES FINDINGS
1. Do the applicant prove that he was injured in the In the affirmative.
vehicular accident on dated 5/3/2014 due to rash
and negligent driving of the Tractor No. MH-23-T-
4176 by the driver of opponent No.1 ?
2. Whether the opponent No.2 proves that the In the negative.
opponent No.1 has committed breach of terms and
conditions of insurance policy ?
3. Whether the claimants are entitled to get As per findings.
compensation ? If yes, to what extent and from
whom ?
4. What award ? Application is partly
allowed
[IV] In support of the Claim Petition, the Claimant examined
himself and brought on record the Police Papers, Medical Papers
and Bills. After the Claimant closed his evidence, the Insurance
Company examined the Doctor from the Hospital where the
Claimant was treated for his leg injury and brought on record the
Admission Papers and Discharge summary of the Hospital. After
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the Insurance Company closed its evidence, the learned Tribunal
passed the impugned Judgment and Order / Award after hearing
both the sides and appreciating the evidence on record.
3. Heard the learned Advocate for the Appellant - Insurance
Company and the learned Advocate for the Claimant.
4. It is submitted by the learned Advocate for the Appellant -
Insurance Company that, the history of accident given at the time
of hospitalization and the incident referred in the F.I.R. show two
[2] different versions. In the Hospital papers, the history is given
as 'accidental insertion of left leg in grinding machine ' and in the
F.I.R., it is mentioned that, the injury in the leg was due to the
Tractor. In cross-examination of the Claimant, the presence of
harvesting machine has come on record. None of the persons on
the spot of incident were examined by the Claimant and the initial
burden was not discharged by the Claimant. The learned Tribunal
should have considered the evidence on record in its totality. The
Claim was fled in collusion with the Tractor Owner, who did not
participate in the claim proceedings and the Driver of the Tractor
was not made the party. By non examining the eyewitness to the
accident, adverse inference should have been drawn by the learned
Tribunal. Hence, the Appeal be allowed.
4.1 In support of his submissions, the learned Advocate for
the Appellant - Insurance Company relied on the following
decisions :-
[a] New India Assurance Co. Ltd. Vs. Velu and Anr. in Special
Leave to Appeal [C] No[s]. 32138/2018 of the Hon'ble
Supreme Court of India dated 12/12/2024 ;
[b] New India Assurance Company Ltd. Vs. Shaikh Ashiya wd/o
Shaikh Javed and fve [5] others of this Bench, in First
Appeal No.130/2014 dated 20/10/2021 ;
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[c] The United India Insurance Company Limited Vs. Dattarao
Madhavrao Deshmukh through legal heirs and one [1]
another of this Bench, in First Appeal No.1602/2021 dated
17/12/2021 ;
[d] Bajaj Allianz General Insurance Co. Ltd. Vs. Manisha w/o
Lahu Kale and three [3] others of this Bench, in First Appeal
No.2742/2015 dated 04/09/2018 ;
[e] Kalpana Rajendra Kothari and Others Vs. Santosh Arvind
Jangam and Another ; 2019 SCC Online Bom 2283 ;
[f] Ranjana Prakash and Others Vs. Divisional Manager and
Another; [2011] 14 SCC 639 ;
[g] United India Insurance Co. Ltd. Vs. Rajani Suresh Bhore and
two [2] others ; 2017 SCC Online Bom 8169 ;
[h] New India Assurance Company Ltd. Vs. Sunita and Others ;
2019 SCC Online Bom 2 ;
5. It is submitted by the learned Advocate for the Claimant that,
the defence taken by the Insurance Company in the Written
Statement is not proved by leading evidence. The Thresher /
Grinding Machine was attached to the Tractor and therefore, the
variance in the history noted in medical papers will not be of any
consequence in view of detailed Report lodged by the Claimant
while taking treatment. The Doctor from the Hospital intimated
the Medico Legal Case [MLC] and delay in lodging the Report will
not be relevant. The Claimant proved his case by bringing on
record the relevant evidence. Though the Insurance Company
approached the Police Offcers that false case was registered, there
is nothing to show that false case was registered. The strict proof
of evidence is not applicable in the Claim Petition and only on the
preponderance of probability, the Claim Petition is required to be
dealt with. Though the Claimant has not fled any Appeal or Cross-
objection, he was entitled for enhanced compensation. Reliance is
placed on the Notifcation dated 03/01/2020 issued by the Ministry
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of Labour and Employment, New Delhi, by which, the wages under
the said Act is quantifed as Rs.25,000/- per month. As per Section
168 of the M.V. Act, just compensation is required to be given.
Hence, the Appeal be dismissed and the compensation be
enhanced.
5.1 In support of his submissions, the learned Advocate for
the Claimant relied on the following Judgments :-
[a] Sunita and Ors. Vs. Rajasthan State Road Transport
Corporation and Anr. ; AIR 2019 Supreme Court 994 ;
[b] Ningamma and Anr. Vs. United India Insurance Co. Ltd. ;
2009 AIR SCW 4916 ;
[c] Pappu Deo Yadav Vs. Naresh Kumar and Ors. ; AIR 2020
Supreme Court 4424 ;
[d] Jitendra Khimshankar Trivedi and Others Vs. Kasam Daud
Kumbhar and Others ; [2015] 4 SCC 237 ;
[e] Erudhaya Priya Vs. State Express Transport Corporation
Ltd.; AIR 2020 Supreme Court 4284 ;
[f] Lalan D. alias Lal and Anr. Vs. Oriental Insurance Company
Ltd.; AIR 2020 SC 4508 ;
[g] Reliance General Insurance Co. Ltd. Vs. MANJU ; 2021 [6]
All MR 171 ;
[h] Mahalakshmi Vs. Krishnaraj ; 2024 ACJ 2244 ;
[i] Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Co.;
AIR 2014 Supreme Court 1052 ;
[j] Chandramma Vs. Manager Regional Offce, NCC Limited and
Another ; [2023] 2 SCC 144 ;
[k] Geeta Dubey Vs. United India Insurance Co. Ltd. ; AIR 2025
SC 386 ;
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[l] Atul Tiwari Vs. Regional Manager, Oriental Insurance
Company Limited ; AIR Online 2025 SC 23 ;
[m] Notifcation dated 03/01/2020 issued by the Ministry of
Labour and Employment, by which, monthly wages came to
be notifed as Rs.15,000/- ;
[n] Oriental Insurance Company Ltd. Vs. Radhika D/o Subhash
Bhoyar and Others; 2019 SCC Online Bom 5112 ;
6. After hearing both the sides, following points arise for my
determination :
[i] Whether the Claimant was successful in proving the
involvement of the Tractor bearing No.MH-23-T-4176 in the
accident which caused injury in his left leg ;
[ii] Whether the Claimant was entitled for enhanced
compensation in this Appeal ;
As to Point No.[I] :-
7. The Claimant approached the learned Tribunal with the case
that, on 06/03/2014 while he was working in the agricultural feld
of one Uddhav Rajaram Ghorpade, the Tractor having a Grinding
Machine was taken in reverse direction by its Driver without due
care and caution and he fell down due to dash by the Tractor and
his left leg came below the Tractor's tyre, which caused him severe
injury and he was hospitalized for treatment. In support of his
Claim, the Claimant examined himself by fling evidence affdavit
and he brought on record the Police Papers comprising his
Statement / Report, upon which, the Crime was registered against
the Tractor Driver, Spot Panchnama, copy of Medical Certifcate
from the Hospital, Form Comp 'B' issued by the concerned Medical
Offcer / Doctor, the copy of Final Report fled by the concerned
Police Station under Section 173 of the Code of Criminal Procedure,
1973 [hereinafter referred to as 'Cr.P.C']. The Appellant -
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Insurance Company examined the Doctor, who was working in the
Noble Hospital, Ahmednagar, where the Claimant was hospitalized
for medical treatment. In his evidence, the Report of Medical
Offcer and the Discharge summary of the Claimant are brought on
record.
8. The bone of contention raised by the learned Advocate for the
Appellant - Insurance Company is that, in the medical papers
brought on record in the evidence before the learned Tribunal, the
history is given as "accidental insertion of left leg in grinding
machine today at 04:00 p.m." and delayed Report to the Police
shows involvement of Tractor. There is no dispute on the said
aspect. The evidence on record goes to show that, the Claimant
was hospitalized from 05/03/2014 till 17/03/2014 in the Noble
Hospital and Research Centre, Ahmednagar. It is also evident from
the evidence on record and on which, there is no dispute that, the
Report in respect of the accident was lodged on 19/03/2014,
pursuant to which, a Crime came to be registered for the offence
punishable under Sections 279, 337 and 338 of I.P.C and Sections
184, 134 [a][b] and 177 of the M.V. Act against the Driver of
Tractor. No doubt, there is delay of thirteen [13] days in lodging
the Report by the Claimant with the concerned Police Station.
Being the Claim Proceeding under the M.V. Act, as per the settled
position in law, the said delay by itself will not be fatal for the
Claimant, and strict proof of evidence is not applicable to the Claim
Proceedings under the M. V. Act.
9. In the evidence affdavit, the cause of leg injury stated by the
Claimant is dash by the Tractor, which had the Grinding Machine
attached to it, while coming in the reverse direction and crushing
of his left leg below the Tractor wheel. The said contention is
corroborated by the Report lodged by the Claimant, which is at
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Exhibit - 31. What the evidence of the witness examined by the
Appellant - Insurance Company at Exhibit - 28 shows that, the
relative of the Patient gave the history of accidental injuries to the
leg of Claimant. His evidence further shows that, they used to
mention the history of injury in their record as stated by the
Patient or his relative. The suggestion is given in the cross
examination of this witness examined by the Appellant - Insurance
Company that, the history of Patient was taken by the Receptionist
in the Hospital. He accepted that, he personally had not taken the
history of injury mentioned in Exhibit - 29, which was the said
history referred above. It is thus clear that, the relatives of
Claimant gave the history to the Hospital at the time of his
admission and not the Claimant. His evidence also goes to show
that, the primary treatment was given by Dr. Patil and thereafter,
the Claimant was treated by Dr. Daule. This witness admitted that,
the left leg was amputated above knee and the said injury was
possible, if wheel of Tractor goes from the thigh of a person. His
cross-examination shows that, the copy of F.I.R with list Exhibit -
42/1 was shown to him and deposed that, the F.I.R bears the seal of
Hospital. The Exhibit - 33 F.I.R / Report corroborate the said
evidence that, the statement was recorded in the Hospital. It is
true that, the Claimant was discharged in the Hospital on
17/03/2014, however the Form Comp 'B' at Exhibit - 23 shows that,
the Claimant was treated as O.P.D Patient from 18/03/2014 till
01/11/2014.
10. In the cross-examination of the Claimant, it has come that, on
the day of accident, there was harvesting of Wheat and Nuts going
on in the agricultural feld and the harvesting machine was
engaged for the said work. There is no dispute on the aspect that,
the investigation done pursuant to the said Report lodged by the
Claimant, culminated in fling of Charge-Sheet against the Driver of
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Tractor and the Tractor Driver was prosecuted. The result of the
said Criminal Case as such will have no impact on the Claim
Petition, because the degree of proof required in the Criminal Case
and Civil Case / Claim Petition are different. Though the Appellant
- Insurance Company fled Complaint/Application with the
Superintendent of Police, Ahmednagar contending that, false case
in collusion with the Tractor Driver was lodged, there is no iota of
evidence to show that, the said Complaint was proceeded and
substance was found therein.
10.1. In the frst case cited by the learned Advocate for the
Appellant in New India Assurance Co. Ltd. Vs. Velu and Anr.
[Supra], there was no iota of evidence before the Tribunal or the
High Court to show that, the injuries suffered by the Claimant
therein was due to Motor Accident. It has been observed therein
that, in a given case delayed F.I.R will not matter. Merely because
the F.I.R has been delayed a claim cannot be rejected, but in the
said case, all the available evidence pointed towards a skid and fall
and not a motor accident. The F.I.R lodged therein had not
proceeded and the police had come to the conclusion that there was
no motor accident and had fled closure Report.
10.2 In the second case of New India Assurance Company
Ltd. Vs. Shaikh Ashiya wd/o Shaikh Javed [Supra], it is observed
that, the facts of the said case were peculiar one and on
appreciating the evidence available in the said Claim Petition, it
was observed by this Court that, from the material on record, no
other inference could be drawn than that it to be a case of collusion
between the claimants and the owner of autorickshaw and the
Tribunal ought not to have granted the claim petition solely relying
on the factum of the driver of the autorickshaw to have been
prosecuted and there was no iota of material to even remotely infer
the involvement of the autorickshaw in the accident".
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10.3 In the third case of the United India Insurance Company
Limited Vs. Dattatrao Madhavrao Deshmukh and Ors. [Supra], it is
observed that, there was no reliable and convincing evidence to
suggest the involvement of the motor vehicle in the accident in
question. The aspects in that case were, delay of [21] twenty one
days in lodging Report with the concerned Police Station, delay of
[11] eleven months in recording statement of the eyewitness to the
incident and no signatures of the persons on their statements
recorded by the Police Station.
10.4 In fourth case of Bajaj Allianz General Insurance Co.
Ltd. Vs. Manisha Lahu Kale [Supra], this Court observed that, after
careful examination of oral and documentary evidence placed on
record, the conclusion was that, the claimants miserably failed to
discharge the initial burden of proof, and therefore, in absence of
any acceptable oral and documentary evidence on record, the
claimants were unable to establish involvement of offending truck
in the accident.
10.5 In ffth case of Kalpana Rajendra Kothari and Ors. Vs.
Santosh Arvind Jangam and Anr. [ Supra], this Court observed
that, only the certifed copy of the First Information Report cannot
be said to be the cogent material and conclusive evidence to prove
the involvement of the offending motorcycle and the Appeal fled by
the original claimants against dismissal of their claim petition was
dismissed.
11. The above referred cases relied upon by the learned Advocate
for the Appellant - Insurance Company can be distinguished on
facts. Coming to the case on hand, as discussed above, the evidence
available on record was suffcient to prove the factum of accidental
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injuries to the left leg of the Claimant by the use of aforesaid
Tractor. For the discussion made above, which is based on the
evidence on record, it cannot be said that, the learned Tribunal
committed an error in answering the issue of accidental injuries to
the Claimant due to rash and negligent driving of the said Tractor,
in the affrmative. Hence, I answer the Point No.[I] in the
affrmative.
As to Point No.[II] :-
12. It is the contention of the learned Advocate for the Claimant
that, though no Appeal or Cross-objection was fled by the Claimant,
compensation awarded by the learned Tribunal be enhanced in
view of the minimum wages prescribed by the notifcation dated
03/01/2020 issued by the Ministry of Labour and Employment,
New Delhi.
13. In Jitendra Khimshankar Trivedi Vs. Kasam Daud Kumbhar
and Ors. [Supra], the Hon'ble Apex Court enhanced the
compensation in favour of the Claimant therein in exercise of the
jurisdiction vested in the Hon'ble Supreme Court of India under
Section 142 of the Constitution of India to do complete justice.
14. In Reliance General Insurance Co. Ltd. Vs. MANJU
[Supra], the compensation was enhanced in the Appeal preferred
by the Insurance Company by observing that, a statutory duty was
cast on the Tribunal to award just compensation. The Appeal being
continuation of original proceedings the Appellate Court is also
bound by the statutory mandate to determine just compensation,
notwithstanding the quantum of compensation claimed by the
Claimants. The power was conferred under Order XLI 33 of the
Code of Civil Procedure, 1908 [hereinafter referred to as 'C.P.C'] to
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do complete justice to the parties. It is observed that, there was no
restriction to enhance the compensation in appropriate cases even
in the absence of cross-appeal or cross-objection.
15. In Oriental Insurance Company Ltd. Vs. Radhika D/o
Subhash Bhoyar and Others [Supra], the Nagpur Bench in the
Appeal fled by the Insurance Company observed that, though the
respondents / claimants had not fled appeal or cross-objection, the
prayer for enhancement in First Appeal can be considered on its
own merits.
16. The other Judgments cited by the learned Advocate for the
Claimant are in respect of well settled principles to be borne in
mind while deciding the Claim Petition under the M.V. Act, such as,
strict principles of proof were not required, just compensation is to
be awarded pursuant to Section 166 of the M.V. Act, no
stereotypical or myopic approach should be adopted by the Court,
there is no restriction that, the Tribunal / Court cannot award
compensation amount exceeding the claimed amount, notifcation
of wages can be taken into consideration if income is less than
minimum wages and resort to the minimum wages can be made to
and the Claimant is required to prove his case on the principles of
preponderance of probability and not beyond reasonable doubt.
17. On the other hand, the learned Advocate for the Appellant -
Insurance Company submitted that, the Appeal was not fled
challenging the compensation awarded by the learned Tribunal and
therefore, the submission made by the learned Advocate for the
Claimant that compensation be enhanced in this Appeal of the
Insurance Company, is liable to be rejected in light of the well
settled legal position.
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18. In Ranjana Prakash and Ors. Vs. Divisional Manager and
Another [Supra], the Hon'ble Apex Court considered the provisions
of Order 41 Rule 33 of C.P.C. and it is observed as follows:-
"6. We are of the view that High Court committed an error in ignoring
the contention of the claimants. It is true that the claimants had not
challenged the award of the Tribunal on the ground that the Tribunal had
failed to take note of the future prospects and add 30% to the annual
income of the deceased. But the claimants were not aggrieved by
Rs.23,134/- being taken as the monthly income. There was therefore no
need for them to challenge the award of the Tribunal. But where in an
appeal filed by the owner/insurer, if the High Court proposes to reduce
the compensation awarded by the Tribunal, the claimants can certainly
defend the quantum of compensation awarded by the Tribunal, by
pointing out other errors or omissions in the award, which if taken note
of, would show that there was no need to reduce the amount awarded as
compensation. Therefore, in an appeal by the owner/insurer, the
appellant can certainly put forth a contention that if 30% is to be
deducted from the income for whatsoever reason, 30% should also be
added towards future prospects, so that the compensation awarded is not
reduced. The fact that the claimants did not independently challenge the
award will not therefore come in the way of their defending the
compensation awarded, on other grounds. It would only mean that in an
appeal by the owner/insurer, the claimants will not be entitled to seek
enhancement of the compensation by urging any new ground, in the
absence of any cross-appeal or cross-objections.
7. This principle also flows from Order 41 Rule 33 of the Code of Civil
Procedure which enables an appellate court to pass any order which
ought to have been passed by the trial court and to make such further or
other order as the case may require, even if the respondent had not filed
any appeal or cross-objections. This power is entrusted to the appellate
court to enable it to do complete justice between the parties. Order 41
Rule 33 of the Code can however be pressed into service to make the
award more effective or maintain the award on other grounds or to make
the other parties to litigation to share the benefits or the liability, but
cannot be invoked to get a larger or higher relief. For example, where the
claimants seek compensation against the owner and the insurer of the
vehicle and the Tribunal makes the award only against the owner, on an
appeal by the owner challenging the quantum, the appellate court can
make the insurer jointly and severally liable to pay the compensation,
along with the owner, even though the claimants had not challenged the
non-grant of relief against the insurer. Be that as it may.
8. Where an appeal is filed challenging the quantum of compensation,
irrespective of who files the appeal, the appropriate course for the High
Court is to examine the facts and by applying the relevant principles,
determine the just compensation. If the compensation determined by it is
higher than the compensation awarded by the Tribunal, the High Court
will allow the appeal, if it is by the claimants and dismiss the appeal, if it
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is by the owner/insurer. Similarly, if the compensation determined by the
High Court is lesser than the compensation awarded by the Tribunal, the
High Court will dismiss any appeal by the claimants for enhancement, but
allow any appeal by owner/insurer for reduction. The High Court cannot
obviously increase the compensation in an appeal by owner/insurer for
reducing the compensation, nor can it reduce the compensation in an
appeal by the claimants seeking enhancement of compensation."
19. In United India Insurance Co. Ltd. Vs. Rajani Suresh Bhore
and two [2] others [Supra], the question before the Single Bench at
the Principle Seat for consideration was ' when an opponent to the
original claim appeals, questioning the quantum of compensation
awarded, absent either an appeal for enhancement or cross-
objections by the original claimant, can an appellate court directly
order enhancement of the compensation? If the mandate under
the M.V Act is to award compensation that is 'just', can this be done
as a matter of course without the appellate court having before it a
claimant's substantive appeal [or cross objections] seeking
enhancement?' By considering the various Judgments relied upon
by the parties therein, the following came to be observed in
Paragraph No.42 :
"42. The following principles therefore emerge :
(a) The compensation awarded must be just compensation, neither
excessive nor illusory, viz., compensation that is moderate, reasonable and
appropriate.
(b) Where it is not, a court in appeal can set it right, irrespective of whether
or not a substantive appeal has been filed.
(c) An appeal court can always step in to correct a computational error or
one that is facially incorrect, such as the adoption of an incorrect multiplier.
No separate or independent appeal or cross-objections are needed for this.
The present case is an example.
(d) Where there is need for an adjustment of distribution of the award
under various heads with no impact on the overall award, this can always
be done by an appeal court without need for a separate appeal (as in the
present case).
(e) Where an appeal is filed seeking reduction, an original claimant can,
without filing an independent appeal, submit that the original award
should be retained without interference.
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(f ) Where an appeal is filed seeking reduction, a claim for enhancement
(i.e., not on maintenance of the original award, nor for correction of an
obvious error), or vice versa, cannot be entertained without a substantive
appeal or cross-objections as contemplated by Order 41 Rule 22".
20. In New India Assurance Company Ltd. Vs. Sunita and Others
[Supra], the Single Bench at Principle Seat by considering the
above referred Judgment in the case of Ranjana Prakash and
Others Vs. Divisional Manager and Another [ Supra], the Court
observed in Paragraph No.23 as under :-
"23. However, after carefully going through this judgment, it emerges that
while enhancing the compensation, the Apex Court exercised jurisdiction
under Article 142 of the Constitution of India, which High Court does not
possess. Thus, though compensation determined by this Court in the case
at hand is more than awarded by the Tribunal, this Court cannot enlarge
the scope of this appeal and cannot enhance the compensation more than
awarded by the Tribunal. However, by exercising its jurisdiction under
Order 41 Rule 33 of the Code of Civil Procedure, this court can only
enhance the rate of interest to the extent of 9% p.a. from the date of filing
of claim petition till realization of the entire compensation amount. "
21. In the case at hand, admittedly, the quantum of
compensation awarded by the learned Tribunal is not attacked by
the learned Advocate for the Appellant. Even in the Appeal Memo,
the ground of quantum of compensation is not raised. Admittedly,
the Claimant has neither fled the Appeal for enhancement of
compensation, nor has fled cross objection in this Appeal. Perusal
of the above referred notifcation relied by the learned Advocate for
the Claimant reads as under :-
MINISTRY OF LABOUR AND EMPLOYMENT
NOTIFICATION
New Delhi, the 3rd January, 2020
S.O. 71(E). - In exercise of the powers conferred by sub-section (1B) of section 4 of the
Employee's Compensation Act, 1923 (8 of 1923) and in supersession of the notification of
the Ministry of Labour and Employment issued vide number S.O. 1258(E), dated 31 st May,
2010; published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (ii),
dated 31st May, 2010, the Central Government hereby specifies, for the purposes of sub-
section (1) of the said section, the following amount as monthly wages, with effect from
the date of publication of this notification in the Official Gazette, namely :-
"Fifteen thousand rupees"
[F. No.S-37025/03/2016-SS-I]
VIBHA BHALLA, Jt. Secy.
FA-2100-2019.odt
21.1 It is clear from the above notifcation that, it was in
respect of the amendment in the relevant Section of the Act
mentioned therein in respect of monthly wages to be paid to the
employees defned under the said Act. Whether the Claimant was
covered by the provisions of the Act mentioned therein was not the
issue before the learned Tribunal, nor in the present Appeal. The
effect to the said Notifcation was given from the date of Publication
of the said Notifcation, which was 03/01/2020. Therefore, reliance
placed by the learned Advocate for the Claimant on the said
Notifcation is misplaced. Hence, in light of the above, the
contention of the learned Advocate for the Claimant to grant
enhanced compensation in tune with the aforesaid notifcation
holds no ground and is liable to be turned down and the same is
turned down accordingly. Hence, I answer the Point No.[II] in the
negative.
22. In view of the above discussion, following order is passed :-
ORDER
[a] The Appeal is dismissed.
[b] The Civil Application i.e. Civil Application No.13485/2019 for
withdrawal of the amount deposited by the Insurance Company
before this Court was directed to be decided fnally with the Appeal.
As the Appeal is dismissed, the said Civil Application is allowed in
terms of prayer clause - 'B' and the same stands disposed of.
[NEERAJ P. DHOTE, J.]
Sameer/March-2025
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
