Delhi High Court
Babu Lal & Ors. vs D.T.C. on 27 April, 2012
Author: J.R. Midha
R-25 to 29 (Part-I)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 10th February, 2012
Date of decision : 27th April, 2012
+ MAC.APP. 446-449/2005
BABU LAL & ORS. .......Appellants
Through : Ms. Aruna Mehta, Adv.
versus
D.T.C. ........Respondent
Through : Mr. J.N. Aggarwal, Adv.
+ MAC.APP.No.451-54/2005
BABU LAL & ORS. .......Appellants
Through : Ms. Aruna Mehta, Adv.
versus
D.T.C. ........Respondent
Through : Mr. J.N. Aggarwal, Adv.
+ MAC.APP.No.541-42/2005
D.T.C. & ANR. .......Appellants
Through : Mr. J.N. Aggarwal, Adv.
versus
BABU LAL & ORS. ........Respondents
Through : Ms. Aruna Mehta, Adv.
+ MAC.APP.No.545-46/2005
D.T.C. & ANR. .......Appellants
Through : Mr. J.N. Aggarwal, Adv.
versus
BABU LAL & ORS. ........Respondents
Through : Ms. Aruna Mehta, Adv.
MAC.APP.No.446,451,541,545&542/2005 Page 1 of 44
+ MAC.APP.No.552-53/2005
D.T.C. & ANR. .......Appellants
Through : Mr. J.N. Aggarwal, Adv.
versus
MOHINI DEVI & ANR. ........Respondents
Through : Ms. Aruna Mehta, Adv.
CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The parties have challenged the common impugned
award whereby the compensation of `2,60,000/- has been
awarded to the legal representatives of the deceased, Sanjay
Kumar, `75,000/- has been awarded to the legal
representatives of the deceased, Neelam and `3,50,000/- has
been awarded to the legal representatives of the deceased,
Sunil. The appellants in MAC.APP.Nos.541-542/2005, 545-
546/2005 and 552-553/2005 seek reduction of the award
amount whereas the appellants in MAC.APP.Nos.446-449/2005,
451-454/2005 seek enhancement of the award amount.
2. The accident dated 26th March, 1999 resulted in the
death of Sanjay, Neelam and Sunil and injuries to Anil and Ravi
who were all travelling in Maruti Car No.DL-4C-1096 which met
with an accident with DTC bus No.DL-1PA-2849.
3. Mr. J.N. Aggarwal, the learned counsel for DTC submits
that Sanjay Kumar, driver of the Maruti Car No.DL-4C-1096 was
contributory negligent to the extent of at least 50% and,
therefore, the compensation is liable to be reduced to that
extent. The learned counsel for DTC submits that half of the
road was closed due to repairs and the traffic on both sides
was moving on the half road. It is further submitted that the
Maruti Car was overtaking the oil tanker and in the process,
there was a head on collision between the Maruti Car and the
DTC bus.
4. The learned Claims Tribunal has held the DTC bus alone
responsible for the accident on the ground that Ravi Kumar
appeared in the witness box as PW-7 and deposed that he was
travelling in the Maruti Car and the DTC bus alone was rash
and negligent. PW-7 denied that the Maruti Car overtook the
tanker at a high speed resulting in the accident. The
conductor of the bus appeared as RW-1 and deposed that the
Maruti Car was negligent. However, the learned Tribunal
disregarded his statement on the ground that the conductor
was sitting in the back seat and he came to know about the
accident only when the alarm was raised by the passengers.
No statement of the passengers was recorded in the complaint
book. The FIR was only registered against the driver of the bus
who was arrested on the spot. Considering the statement of
witnesses, this Court does not find any infirmity in the finding
of the Claims Tribunal with respect to the rashness and
negligence of the bus driver.
MAC.APP.Nos.446-449/2005, 545-546/2005 relating to
death of Sanjay Kumar
5. The deceased, Sanjay Kumar, aged 22 years at the time
of the accident, was survived by his parents and two
unmarried sisters. The Claims Tribunal took minimum wages
of `2,348/- into consideration, added 50% towards future
prospects, deducted 2/3rd towards personal expenses and
applied the multiplier of 17 to compute the loss of dependency
at `2,40,000/-. `20,000/- has been awarded towards loss of
love and affection.
6. Mr. J.N. Aggarwal, learned counsel for DTC submits that
multiplier of 13 should be taken according to the age of the
deceased‟s mother aged 50 years. It is further submitted that
only one unmarried sister is mentioned in the petition. It is
further submitted that increase in minimum wages should not
be taken into consideration.
7. Learned counsel for the claimants in reply submits that
the deceased was survived by two unmarried sisters which is
mentioned in the claim petition.
8. Learned counsel for the claimants seek enhancement of
the award amount on the following grounds:-
(i) The multiplier be enhanced from 17 to 18.
(ii) The personal expenses of the deceased be reduced from
2/3rd to 1/3rd.
(iii) The compensation be awarded for loss of estate, funeral
expenses and transporting the body from Agra to Delhi.
9. The deceased was survived by his parents and two
unmarried sisters. In that view of the matter, the multiplier
has to be taken according to the age of the deceased. The
deceased was aged 22 years and the appropriate multiplier
according to the judgment of the Supreme Court in Sarla
Verma v. Delhi Transport Corporation, (2009) 6 SCC 121
is 18 and the deduction towards personal expenses is 1/3rd.
Following the aforesaid judgment, the multiplier is enhanced
from 17 to 18 and the personal expenses of the deceased are
reduced from 2/3rd to 1/3rd. However, the increase in minimum
wages due to inflation is set aside. The Claims Tribunal has
not awarded any compensation for loss of estate, funeral
expenses and transportation of body from Agra to Delhi.
`10,000/- is awarded towards loss of estate, `10,000/- is
awarded towards funeral expenses and `15,000/- is awarded
towards transportation of dead body from Agra to Delhi.
10. The appellants are entitled to total compensation of
`3,93,112/- as per the break-up given hereunder:-
1. Compensation towards loss of `3,38,112/-
dependency
[(`2,348 - 1/3) x 12 x 18]
2. Compensation towards loss of `20,000/-
love, affection and consortium
3. Compensation towards loss of `10,000/-
estate
4. Compensation towards funeral `10,000/-
expenses
5. Compensation towards `15,000/-
transportation of dead body from
Agra to Delhi
Total `3,93,112/-
11. For the aforesaid reasons, MAC.APP.No.446-49/2005 is
allowed and MAC.APP.No.545-46/2005 is dismissed and the
award amount is enhanced from `2,60,000/- to `3,93,112/-
along with interest @9% per annum from the date of filing of
the claim petition before the Claims Tribunal till realization.
The share of the claimants in the award amount shall be equal.
12. The enhanced award amount along with interest be
deposited by DTC with UCO Bank, Delhi High Court Branch by
means of a cheque drawn in the name of UCO Bank A/c Babu
Lal within 30 days.
MAC.APP.Nos.451-454/2005, 541-542/2005 relating to
death of Neelam
13. The deceased was a housewife, aged 20 years and was
survived by her father-in-law, mother-in-law and two sister-in-
laws. It was claimed that the deceased was working. However,
in the absence of sufficient proof, the Claims Tribunal did not
consider her income and awarded `75,000/- towards
compensation.
14. The Claims Tribunal has not computed the compensation
in accordance with law. Following the judgment of the
Supreme Court in Lata Wadhwa v. State of Bihar, AIR
2001 SC 3218, the value of services of the deceased
housewife to her family is taken to be `3,000/- per month and
applying the multiplier of 18, the compensation is computed to
be `6,48,000/-. `10,000/- is awarded towards loss of
consortium. `5,000/- awarded towards funeral expenses be
enhanced to `10,000/-. However, since the deceased is
survived by her father-in-law, mother-in-law and two sisters-in-
law and there is no proof of their being dependant, the
compensation to them is computed as 1/3rd payable to non-
dependant legal representatives in terms of the judgment of
the Karnataka High Court in A. Manavalaganda vs. A.
Krishnamurty, I (2005) ACC 304. The appellants are
entitled to total compensation of `2,22,667/-.
15. For the aforesaid reasons, MAC.APP.No.451-454/2005 is
allowed and MAC.APP.No.541-542/2005 is dismissed and the
award amount is enhanced from `75,000/- to `2,22,667/- along
with interest @9% per annum from the date of filing of the
claim petition before the Claims Tribunal till realization. The
share of the claimants in the award amount shall be equal.
16. The enhanced award amount along with interest be
deposited by DTC with UCO Bank, Delhi High Court Branch by
means of a cheque drawn in the name of UCO Bank A/c Babu
Lal within 30 days.
MAC.APP. Nos. 552-553/2005 relating to death of Sunil
17. The deceased, Sunil aged 18 years was survived by his
mother and unmarried sister. The deceased was a vegetable
vendor. The Claims Tribunal took minimum wages of `2,348/-
per month, added 50% towards inflation and rise in price
index, deducted 1/3rd towards personal expenses for the first
seven years and 2/3rd for the remaining nine years and applied
the multiplier of 16 to compute the loss of dependency at
`1,27,000/-. The Claims Tribunal awarded `25,000/- towards
loss of love and affection. The total compensation awarded is
`1,52,000/-.
18. Learned counsel for DTC seeks reduction of award
amount on the ground that the multiplier should be applied
according to the age of the mother of the deceased who was
47 years old. The claimants seek enhancement of
compensation on the ground that the multiplier be enhanced
from 16 to 18 and the family contribution be taken to be 1/3rd
for the total period as the deceased was survived by his
mother and unmarried sister.
19. It is well settled that Order XLI Rule 33 of the Code of
Civil Procedure empowers the Appellate Court to grant relief to
a person who has neither appealed nor filed any cross-
objections. The object of this provision is to do complete
justice between the parties. Order XLI Rule 33 of the Code of
Civil Procedure has been discussed time and again by the
Supreme Court in the following cases:-
(i) Pannalal v. State of Bombay, AIR 1963 SC 1516.
(ii) Rameshwar Prasad v. M/s Shyam Beharilal Jagannath,
(1964) 3 SCR 549.
(iii) Nirmal Bala Ghose v. Balai Chand Ghose, AIR 1965 SC
1874.
(iv) Giasi Ram v. Ramjilal, AIR 1969 SC 1144.
(v) Harihar Prasad Singh v. Balmiki Prasad Singh, (1975) 2
SCR 932.
(vi) Mahant Dhangir v. Madan Mohan, (1988) 1 SCR 679.
(vii) State of Punjab v. Bakshish Singh, (1999) 8 SCC 222.
20. Section 168 of the Motor Vehicles Act, 1988 empowers
the Court to award such compensation as appears to be just
which has been interpreted to mean just in accordance with
law and it can be more than the amount claimed by the
claimants. The provisions of the Motor Vehicles Act, 1988 are
clearly a beneficial legislation and hence should be
interpreted in a way to enable the Court to assess just
compensation. The scope of Order XLI Rule 33 of the Code of
Civil Procedure and the power of the High Court to enhance
the award amount in accident cases in the absence of cross-
objections has been discussed by the Supreme Court in
Nagappa v. Gurudayal Singh, AIR 2003 SC 674 where
the Apex Court has held that the Court is required to
determine just compensation and there is no other limitation
or restriction for awarding such compensation and in
appropriate cases wherefrom the evidence brought on record
if the Tribunal/Court considers that the claimant is entitled to
get more compensation than claimed, the Tribunal may pass
such award and would empower the Court to enhance the
compensation at the appellate stage even without the injured
filing an appeal or cross-objections.
21. The scope of Order XLI Rule 33 of the Code of Civil
Procedure in motor accident cases has been exhaustively
discussed in the following three High Court judgments:-
(i) In National Insurance Company v. Rani, 2006 ACJ
1224, the Division Bench of Madras High Court held as
under:-
"15. What remains to be considered is,
whether the Claimants are entitled for more
compensation and if the answer is in the
affirmative, whether enhancement can be
ordered invoking Order XLI Rule 33, since the
Claimants have not filed any appeal or Cross
Objection.
16. At the risk of repetition it may be stated
that the contention put forward is that the
Court is duty bound to fix the just
compensation. The fact that the Claimants
have not filed any cross objection would not
stand in the way and further the Court can
by invoking the powers conferred under
Order XLI Rule 33 of CPC, if satisfied, can
enhance the compensation and call upon the
Claimants to pay necessary Court fee. In that
context, the learned counsel also submitted,
when the Supreme Court has ruled that even
at the appellate Stage original petition can
be amended claiming enhanced
compensation, the Court enhancing
compensation in the instant case, if satisfied,
invoking powers under Order XLI, Rule 33 will
certainly be in order.
17. Per contra, the learned counsel
appearing for the Insurance Company so also
the owner of the lorry contended that the
powers conferred under Order XLI, Rule 33
can be invoked only in exceptional
circumstances and the Claimants having not
filed any cross objection for several years,
which would only show that they are satisfied
with the award, cannot request the Court to
invoke its powers, which has to be done only
in rare cases and subject to certain
limitations.
18. Section 168 of the Motor Vehicles Act,
1988 is to the effect that on receipt of
application for compensation made under
Section 166, the Tribunal shall after giving
notice and hearing all the parties, hold an
enquiry and make an award, which appears
to it to be just. This section corresponds to
Section 110-B of the Motor Vehicles Act,
1939. The Tribunal while computing
compensation under Section 168 of 1988
Act, has a wide discretion than what it had
under the Fatal Accidents Act of 1855. The
provisions of 1988 Act are clearly beneficiary
legislation and hence to be interpreted in a
way which confers benefit or usurp benefits."
"23. With reference to C.M.A.150 of 1997,
the Claimants are wife and two minor
children. The deceased was at the relevant
time aged about 27 years old and he was
getting an income of Rs.1,200/- per month.
After deducting 1/3rd, if the remaining
amount of Rs.800/- is multiplied by 12, the
yearly contribution comes to Rs.9,600/-. If
this is multiplied by 18, a figure of
Rs.1,72,800/- can be arrived. With this, if a
sum of Rs.20,000/- towards love and
affection, another sum of Rs.10,000/-
towards loss of consortium and Rs.5,000/- for
funeral expenses are added we can arrive at
a figure of Rs.2,07,800/-, which in our opinion
is the just compensation payable to the
Claimants. Whereas, the Tribunal has fixed
only a sum of Rs.1,32,200/-.
24. In C.M.A.No.151 of 1997, the first
respondent/Claimant has sustained two
fractures on both the legs and the extent of
disability has been fixed at 25%. The Doctor,
who treated the Claimant has also deposed
before the Court that the length of the left
leg is shortened by 2 Cms. and there is also
restriction in the movement of both the
ankles and it would not be possible for him to
sit on the floor. He has also testified before
the Court that the victim would not be able
to stand for a long. In these peculiar facts
and circumstances, we are of the view that
the victim must be awarded at least
Rs.35,000/- towards permanent partial
disability. Apart from this, he must be given
another Rs.10,000/- towards pain and
sufferings since he has undergone surgery
and another Rs.10,000/- towards medical
expenses, extra nourishment and
transportation charges. Thus in all,
Rs.55,000/- would be the just and proper
compensation for the claimant
Shanmugasundaram in C.M.A.No.151 of
1997, whereas the Tribunal has awarded only
a sum of Rs.41,800/-.
25. But the question arises whether in the
absence of cross objection, this Court can
invoke Order XLI, Rule 33 of Code of Civil
Procedure and enhance the compensation
and call upon the Claimants to pay necessary
Court fee.
26. Order XLI, Rule 33 of Code of Civil
Procedure reads as under:-
"O.XLI, 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 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:
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."
27. (a) In (1964) 3 SCR 549, Rameshwar
Prasad and others v. M/s Shyam Beharilal
Jagannath and others, a bench consisting of
three judges of Supreme Court, pointed out
the scope of Order XLI, Rule 33, in the
following terms:
"... 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 in so far 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 wide discretion to pass
such decrees and Orders as the interest 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)
(b) The next ruling that can be referred to is
reported in (1965) 3 SCR 550 (Nirmala Bdla
Ghose and another v. Balai Chand Ghose and
another). Here again, a Bench consisting of
three Judges of Supreme Court pointed out
that though the terms employed are wide,
the same have 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.
The Court in that case observed as under,
"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
O.41, Rule 33 may properly be invoked. The
rule however does not confer an unrestricted
right to re-open decrees which have become
final merely because the appellate Court
does not agree with the opinion of the Court
appealed from." (emphasis supplied)
What has to be noted is that the Supreme
Court made it clear that the rule does not
confer an unrestricted right to re-open
decrees, which have become final.
(c) Then we have the ruling reported
in (1975) 1 SCC 212 (Harihar Prasad Singh
and others v. Balmiki Prasad Singh and
others), where the Court pointed out that a
party who is aggrieved by a decree, to
escape from its operation, file an appeal and
where he fails to do so, no relief should
ordinarily be given under O.XLI, Rule 33. Of
course, the Court pointed out three
exceptions by way of illustrations. Let us
proceed to quote the relevant portion, which
is as under,
"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. ..." (emphasis supplied)
(d) Then we have the ruling reported in AIR
1988 SC 54 (Mahant Dhangir and another v.
Shri Madan Mohan and others). In that
decision, the Court took the view that the
rule itself is liberal enough and that to invoke
the said rule, only two requirements are to
be satisfied. Firstly, the parties before the
lower court should be there before the
appellate Court and secondly, the question
raised must properly arise out of judgment of
the lower Court. In paragraph 12 of the said
Judgment, the Supreme Court has referred
the ruling reported in (1964) 1 SCR 980
(Panna Lal v. State of Bombay).
It has to be noted that the rulings of the
Supreme Court reported in (1964) 3 SCR 549
; (1965) 3 SCR 550 ; and (1975) 1 SCC 212
(all cited supra) were not brought to the
notice of the Court.
(e) The next ruling is reported in (1998) 8
SCC 222 (State of Punjab and others v.
Bakshish Singh). Paragraphs 8 and 9 are
relevant, which we quote hereunder in
extenso.
"8. This provision gives very wide power to
the appellate court to do complete justice
between the parties and enables it to pass
such decree or order as ought to have been
passed or as the nature of the case may
require notwithstanding that the party in
whose favour the power is sought to be
exercised has not filed any appeal or cross-
objections.
9. The discretion, however, has to be
exercised with care and caution and that too
in rare cases where there have been
inconsistent findings and an order or decree
has been passed which is wholly uncalled for
in the circumstances of the case. The
appellate court cannot, in the garb of
exercising power under Order XLI Rule 33,
enlarge the scope of the appeal. Whether
this power would be exercised or not would
depend upon the nature and facts of each
case." (emphasis supplied)
Here again, it has to be noted that such a
power must be exercised in rare cases where
there have been inconsistent findings and an
order or decree has been passed which is
wholly uncalled for.
(f) Finally we have a very recent judgment to
be mentioned, which is reported in 2003 (3)
Law Weekly 721 (Banarsi and others. v. Ram
Phal). The Supreme Court, after considering
various rulings referred by us above, so also
some more rulings, has laid down the law as
under;
"Rule 4 seeks to achieve one of the several
objects sought to be achieved by Rule 33,
that is, avoiding a situation of conflicting
decrees coming into existence in the same
suit. The above said provisions confer power
of 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 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
in discretion 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 or
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 O.41." (emphasis
supplied)
It has to be noted that the Supreme Court
considered the ruling reported in (1964) 1
SCR 980 (cited supra). In fact in that ruling
itself the Supreme Court held that the facts
of that case was similar to the illustrations
given in the code.
28. Let us take an example. A person dies in
a road accident, leaving a minor son and an
unmarried daughter of 18 years. A claim is
made for Rs.6,00,000/- under the Motor
Vehicles Act. The Tribunal awards
Rs.2,00,000/-, to be shared among the
claimants equally. The respondents in the
O.P. files an appeal, questioning the award of
Rs.2,00,000/-. The unmarried daughter alone
files a cross objection. The Court comes to
the conclusion that the just compensation
has to be fixed at Rs.4,00,000/-, in which
case the Court, even though the minor son
represented by the next friend has not filed
any cross objection, can invoke Order-41
Rule-33, holding that the minor son will also
be entitled for the enhanced compensation
ie., Rs.1,00,000/-.
29. Coming to the Land Acquisition Act, take
a case where a joint family consisting of
father and two sons own three acres of land
and the same is acquired by the Government
and the Reference Court fixes the
compensation payable at Rs.3,00,000/-,
obviously to be shared among them in the
ratio 1:1:1. Questioning this, the State files
an appeal. The father and one son alone file
cross objection but not the other son. The
High Court, in appeal, comes to the
conclusion that the value of the land has to
be fixed at Rs.4,50,000/-. In such a case,
even though one son has not filed cross
objection, the Court can, invoking Order-41
Rule-33, hold that he will also be entitled for
the enhanced compensation.
30. It has to be noted that in both the above
cases, invoking Order-41 Rule-33 will not be
inconsistent with the findings of the
appellate court and that further this will
avoid inequality in the relief granted to
similarly placed parties.
31. Learned counsel appearing for the
claimants would contend that a learned
single Judge of this Court in Managing
Director, Thanthai Periyar Transport
Corporation, Villupuram v. Sundari Ammal
and four others, (1999) 3 MLJ 147 has
considered various rulings including the one
reported in (1998) 8 SCC 222 (cited supra)
and has held that the Court has got wide
power to do complete justice between the
parties and by invoking Order-41 Rule-33
CPC., Court can award enhanced
compensation even without cross objection.
32. We may point out that the learned single
Judge, though referred to the ruling reported
in (1998) 8 SCC 222 (cited supra), has not
rather noticed that in para No.9 of the said
Ruling, the Supreme Court has pointed out as
to what it meant by rare cases ie., where
there have been inconsistent findings and an
order or decree has been passed which is
wholly uncalled for in the circumstances of
the case. Hence, we do not find any
substance in the submission made by the
learned counsel for the claimants.
33. The learned counsel appearing for the
insured would draw the attention of this
Court to the ruling reported in (2003) 3 SCC
274 (Nagappa v. Gurudayal Singh and
others) where the Supreme Court has ruled
that 'the Court is required to determine the
just compensation and there is no other
limitation or restriction for awarding such
compensation and in appropriate cases
where from the evidence brought on record if
the Tribunal/Court considers that the
claimant is entitled to get more
compensation than claimed, the Tribunal
may pass such award' and submits that the
said ruling would empower the Court to
enhance the compensation at the appellate
stage even without the injured filing an
appeal or cross objection. The counsel would
further contend that the ruling reported
in AIR 2003 SCW 1494 (Banarsi and others.
v. Ram Phal) would not stand in the way for
two reasons, (1) the ruling in Nagappa's case
is by a three Judge Bench and (2) the
subsequent ruling by two judges Bench in
Banarsi's case has not considered the ruling
in Nagappa's case.
34. All that the Supreme Court held in
Nagappa's case is that the Tribunal or the
Court can award more compensation than
the one that has been claimed in appropriate
cases. In Banarsi's case, the Supreme Court
ruled that the Court can exercise its powers
under Order 41 Rule 33 of Code of Civil
Procedure and the same is subject to at least
three limitations. The Court also pointed out
that the same has to be consistent with the
findings of the appellate Court and to be
invoked to set right the neglected among
similarly placed persons.
35. The legal position can be summed up as
under:-
(i) The power conferred under Order XLI
Rule-33 to the Appellate Court is a very wide
power to do complete justice, but however,
discretion to use such power is to be
exercised judiciously with care and caution
and only in rare cases.
(ii) The nature of power conferred under
Order XLI Rule 33 has been explained by the
Supreme Court in the rulings reported
in 2003 (3) Law Weekly 721 and (1998) 8
SCC 222 (both cited supra). The provision
confers power of widest amplitude on the
appellate Court so as to do complete justice
between the parties. The power is subject to
at least three limitations. Firstly, the power
cannot be exercised to the prejudice or
disadvantage or a person not a party before
the Court. Secondly, a claim given up or lost
cannot be revived. 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. The Court can
invoke such power provided it is consistent
with the findings arrived at by the appellate
court and that the same would remove the
inconsistencies, inequities or inequalities in
reliefs granted to similarly placed parties."
(ii) In Oriental Fire And General Insurance Co.
Ltd. v. Amarsing Pratapsing Sikliker, I (1993) ACC
627, the Division Bench of Gujarat High held as under:-
"15. Unfortunately, in a case where the
claimant is awarded an amount of Rs.
1,00,000/- interest only at the rate of 6% per
annum from the date of the application till
realisation was awarded from the opponents.
Cross-objections are not filed. In view of the
peculiar facts and circumstances, we are of
the opinion that the powers of this court
under Order 41, Rule 33 of the Civil
Procedure Code ('Code' for short) should be
exercised in absence of cross-objections so
as to enhance the rate of interest. The
learned counsel for the appellant has
contended that this is not a fit case wherein
this court should exercise its discretion to
enhance the rate of interest from 6% per
annum on the amount of compensation.
Thus, it is submitted that this is not a fit case
where the Tribunal has failed to exercise the
discretion for award of interest. In other
words, it is contended that mere award of
lesser rate of interest cannot be said to be a
sufficient ground so as to call for the exercise
of powers of this court under Order 41, Rule
33 of the Code. This submission is seriously
controverted by the learned counsel for the
claimant."
"17. It becomes very clear from the aforesaid
provisions that the appellate Court is
empowered to grant adequate relief so as to
do substantial justice between the parties
even in absence of cross-objections or
appeal. Considering the scope of this rule
and the factual scenario emerging from the
evidence on record, we are of the opinion
that the rate of interest is required to be
upwardly revised even in absence of cross-
objections or appeal at the instance of the
original claimant, while exercising the
powers of this court under Order 41, Rule 33
of the Code. Rule 33 is, primarily, intended to
confer power upon the appellate court to do
justice by granting relief to a party who has
not appealed. We are reminded of the
observations made by the Rajasthan High
Court in the case of Municipal Board,
Mount Abu v. Hari Lal, reported at 1988
ACJ 821 = II (1981) ACC 397 Raj.
"Should the courts be silent spectators
and feel helpless and impotent by not
redressing injustice and by tolerating
such grave injustice simply because
due to the human values for
compensation which could be valued
and imagined by the advocate drafting
the petition were too low or the
appellant's inability to pay the court fee
which may be a more tangible ground
for putting the reduced claim.
Inadequate claim has been made at
both levels of the original court and the
appeal.
I have repeatedly observed in various
decisions, e.g., Pista Aggarwal's
case and Rao Dheer Singh's case that
in adjudicating compensation cases,
the claim case should not be
considered like those of easement or
mortgage or property dispute. For
social welfare legislation of a State
wedded to socialism and the
Constitution's focus is on social
injustice not only in the preamble, but
in directive principles which are to be
enforced by passing legislation like the
Fatal Accidents Act or Motor Vehicles
Act or other alike social welfare
statutes the approach should be liberal,
humanistic, non-technical and
equitable."
The underlying purport and design of the
provisions of Order 41, Rule 33 would clearly
go to show that the Parliament has enacted
such a provision with a view that the court
could rise to the occasion and render
substantial justice between the parties even
in absence of cross-objections or appeal.
Thus, the framers of the Code, who had
hardly any concept of social justice then in
that period of 1908, had enacted under
Order 41, Rule 33 that even if the appellant
may not have made a perfect claim the court
should not become silent spectator and
remain impotent to give appropriate relief to
one who rightly deserves the potentiality. All
the courts should deliver justice according to
the needs of the litigants and the
circumstances emerging from the evidence
on record, has been thus recognised by the
provisions incorporated in Order 41, Rule 33
of the Code. Therefore, in absence of the
cross-objections by the claimant, this court
can invoke the provisions of Order 41, Rule
33 even if required, „suo motu‟ and enhance
the compensation or rate of interest. In the
case of National Insurance Co. Ltd. v.
Tulsi Devi, reported in 1988 ACJ 962 it was
held by the Rajasthan High Court that under
Order 41, Rule 33 of the Code, the appellate
court can saddle the insurer with enhanced
liability.
18. In the case of Maharashtra State Road
Trans. Corporation v. Kamalabai,
reported in 1989 ACJ 750 where the
claimants neither filed an appeal nor
preferred cross-objection but urged the
appellate court to grant higher rate of
interest taking aid of Order 41, Rule 33 of the
Code, it would be appropriate to reproduce
the relevant observations of the Bombay
High Court:
"It is well settled that provisions of
Order 41, Rule 33 of the Code can be
resorted to "ex debito justitiae", i.e., to
do justice to the parties in exceptional
cases by varying the decree in favour
of the respondents although they might
not have preferred any appeal against
the decree."
19. In the case of Sone Ram v.
Jayaprakash reported in AIR 1986 MP 21,
the High Court of Madhya Pradesh under
Order 41, Rule 33 of the Code enhanced the
compensation granted by the Tribunal even
though no appeal was preferred by the
claimant. Similarly, in the case of Sewaram
alias Sewan v. Nanhe Khan alias Asgar
Beg reported in 1987 ACJ 354 (MP), the High
Court of Madhya Pradesh awarded 10%
interest on the compensation amount in
absence of appeal or cross-objection by the
claimants. Likewise, Rajasthan High Court in
the case of Rajasthan State Road
Transport Corporation v. Manumati
Mahamia reported in 1987 ACJ
1045 (Rajasthan), enhanced the rate of
interest to 12 per cent instead of 6% granted
by the Tribunal from the date of the
application till realisation.
20. In our opinion, the powers granted under
the provisions of Order 41, Rule 33 of the
Code are widest in amplitude and could be
exercised in favour of the respondents
notwithstanding that the respondents or
claimants have not filed any cross-objection
or appeal. The power of the Tribunal to
award interest is provided in Section 171 of
the Motor Vehicles Act, 1988 (corresponding
Section 110-CC of the Motor Vehicles Act,
1939), where any court or Claims Tribunal
allows claim for compensation made under
this Act, such court or Tribunal may direct
that in addition to the amount of
compensation, simple interest shall also be
paid at such rate and from such date but not
earlier than making such application in this
behalf. Thus, a wide discretion is given to the
Tribunal for awarding rate of interest while
granting the amount of compensation. Motor
Vehicles Act is, undoubtedly, a welfare
legislation. Needless to reiterate that
whenever unfortunate victims of road
accident or the dependants of the deceased
victims enter the thresholds of the court for
justice, they should not be overburdened
with the technicalities or strict pleadings of
the law applicable in other civil cases. In fact,
most of the accident victims in our country
are pedestrians or cyclists, and most of them
are illiterate and come from poor strata of
the society and suffering from poverty and
ignorance. Considering the benevolence in
the provisions of the Motor Vehicles Act and
the facts and circumstances emerging from
the record of the cases on hand, we are of
the opinion that the Tribunal has seriously
erred in awarding rate of interest of 6 per
cent only in a serious case of disintegration
of the bodily frame of the claimant.
21. In view of the facts and circumstances
and aforesaid proposition of law, we are
convinced that this is a fit case wherein the
rate of interest should be revised upwardly
and enhanced even in absence of appeal or
cross-objection by the original claimant, who
is a living victim of the violent accident. In
the case of State of Madhya Pradesh v.
Diwan Chandra Gupta reported in 1989
ACJ 320, the Madhya Pradesh High Court
was pleased to enhance the rate of interest
from 6% to 12% from the date of the
application till payment even without cross-
objection. Without any cross-objection, in an
appeal at the instance of the insurer, like one
on hand, interest was directed to be paid at
the rate of 12% per annum from the date of
the application by the Madhya Pradesh High
Court in the case of New India Assurance
Co. Ltd. v. Shakuntla Bai reported in
1987 ACJ 224. Similar view was taken by the
Gauhati High Court in the case of United
India Fire & General Insurance Company
Limited v. Malati Bala reported in 1985
(1) Gau. LR 443. In that case the award of
the Tribunal was faulted by the High Court
for not giving reasons for awarding only 6%
interest and not higher interest, taking the
view that the Tribunal had committed
jurisdictional error in doing so and that could
be corrected by the High Court without cross-
objection of the claimant-respondent.
22. The Full Bench of Madhya Pradesh High
Court, in the case of Prakramchand v.
Chuttan @ Alim & Ors. reported in 1991
ACJ 1051 held in an appeal under Section
110-D of the Motor Vehicles Act, 1939, that
High Court can act without cross-objection
and enhance the interest to 12% per annum
from the date of the application till
realisation on the compensation awarded by
the Tribunal. In this decision, the Full Bench
has considered relevant provisions of law
including the special provisions under the
Motor Vehicles Act, 1939, for filing appeal
under Section 110-D (corresponding
Section 173 of the Motor Vehicles Act,
1988). We are in complete agreement with
this decision that the appellate court even in
an appeal under Section 110-D of the Motor
Vehicles Act, 1939 (Section 173 of the
Motor Vehicles Act, 1988) is empowered
under the provisions of Order 41, Rule 33 of
the Code for enhancement of compensation
or rate of interest even in absence of any
cross-objection or appeal. Section 110-CC of
the Motor Vehicles Act, 1939 and the
corresponding Section 171 of the Motor
Vehicles Act, 1988, provide for the award of
interest on the amount of compensation
awarded by the Tribunal. It would be
appropriate to refer to the provisions of
Section 171 of the Motor Vehicles Act,
1988, which read as under:
"171. Award of interest where any
claim is allowed. Where any Claims
Tribunal allows a claim for
compensation made under this Act,
such Tribunal may direct that in
addition to the amount of
compensation simple interest shall also
be paid at such rate and from such date
not earlier than the date of making the
claim as it may specify in this behalf."
23. The view which we are inclined to take is
also very much reinforced by the decision of
the Apex Court, rendered in the case of
Narcinva V. Kamat v. Alfredo Antonio
Doe Martins, reported in 1985 ACJ 397 In
that case the Supreme Court awarded
interest at the rate of 12% per annum
despite there being no cross-objection of the
claimants. In short, when the appellate court
finds that the Tribunal has failed to exercise
discretion or has erred in exercise of the
discretion, then in that case, appellate court
is empowered to grant appropriate relief in
respect of compensation or in respect of rate
of interest. It would be interesting to refer to
the observations made by the Full Bench of
the Madhya Pradesh High Court in the case
of „Prakramchand‟ (supra) as under:
"11. Obviously, the view which has
consistently prevailed with the summit
court on the interpretation of Section
110-CC is that Claims Tribunal, and in
appeal the High Court also, in
determining the compensation payable
to the claimant preferred by application
under Section 110-A of the Act, ought
to award, in addition to the
compensation, simple interest at the
rate of 12 per cent per annum from the
date of application. By holding so, their
Lordships have expressed the view that
non-exercise or improper exercise of
jurisdiction by the Tribunal or High
Court under Section 110-CC taints the
award made in regard to the
compensation. Reason for that is not
far to seek as Section 110-CC vests
jurisdiction in Tribunal to make
direction in regard to interest payable
to the claimant 'in addition to the
amount of compensation' determined.
They also purport to hold that it is the
duty of the Claims Tribunal and the
High Court to 'specify' the rate of
interest and the date from which that
becomes payable and that is
discharged by specifying the interest at
the rate of 12 per cent per annum and
the date of payment as from the date
of application. That mandate, in our
view, in regard to interpretation of
Section 110-CC has become the law of
the land, as contemplated under
Article 141 of the Constitution and
that is binding on all courts in India. We
are buttressed in this conclusion
noticing the emerging trend at the
summit level. In a recent decision
rendered on 3.5.1990, in the case of
Ramesh Chandra v. Randhir Singh,
1990 ACJ 777 (SC), the view taken is
that for the award of interest, no
pleading is necessary, while in the
decision rendered on 15.11.1989, in the
case of R.L. Gupta v. Jupiter General
Insurance Company, 1990 ACJ 280 (SC),
in categorical terms, the Apex Court
observed that "there have been several
orders of this Court in recent cases in
compensation disputes where the Court
has awarded 12 per cent interest" and
on that ground, their Lordships raised
interest also from 6 per cent to 12 per
cent while enhancing the
compensation."
24. In view of the aforesaid circumstances
and the settled proposition of law, we are of
the clear opinion that this is a fit and
appropriate case wherein the rate of interest
awarded by the Tribunal at 6% per annum is
required to be upwardly revised and
enhanced so as to make the award of
compensation just and reasonable.
(iii) In Prakramchand v. Chuttan, AIR 1991 MP
280, the Full Bench of Madhya Pradesh High Court held as
under:-
"1. When this appeal came, for hearing
before one of us (S. K. Dubey, J.), sitting
singly, and it was heard at some length by
him, he took the view that the interpretation
of Section 110-CC, Motor Vehicles Act, 1939,
for short, the 'Act', in the context of Order
41, Rule 33, CPC by another learned single
Judge of this Court in the case of Oriental Fire
and General Insurance Co. Ltd. Indore v.
Kamla Bai, 1990 MPJR 140, hereinafter
referred to as Kamlabai's case was required
to be examined by Larger Bench. Indeed,
according to him, the view expressed in the
decision cited, conflicted directly with this
Court's decision in Manjula Devi Bhuta v.
Manjushri Raha, 1968 Jab LJ 189 and
otherwise also, the question was a general
importance to decide whether in appeal, the
Court had power, jurisdiction or duly to
award interest at a higher rate in the
absence of cross-objection in that regard by
the claimant.
2. Twin provisions, above-referred, are
extracted in the extenso :
Section 110-CC, M.V. Act:
"110-CC. Award of interest where any claim
is allowed.-- Where any Court or Claims
Tribunal allows a claim for compensation
made under this Act, such Court or Tribunal
may direct that in addition to the amount of
compensation simple interest shall also be
paid at such rate and from such date not
earlier than the date of making the claim as
it may specify in this behalf."
Order 41, Rule 33, CPC:
"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 as,
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."
3. On facts, it is not disputed that in this
matter, there is no cross-objection.
Admittedly also, the award impugned in the
appeal, passed by the M.A.C.T., Shivpuri,
interest has been awarded at the rate of 6%
per annum and that is made payable from
the date of award. Therefore, it is necessary
to examine first afore-cited Kamlabai's
case (1990 MPJR 140) (supra). The question
of enhancement of interest was raised by the
claimant/respondent in the appeal preferred
by Insurer, assailing his liability under the
award. The appeal was dismissed and, at the
same time, claim for enhanced interest too
was negated. There is not discussion on the
import, purport or scope of Section 110-CC of
the Act and the decision is based squarely on
Order 41, Rule 33, CPC, relying on a Bench
decision of this Court in Sumanbai's case ,
AIR 1982 MP 62, as also in Rukmani Devi's
case, 1984 ACJ 548. We reproduce, however,
the extract which the learned Judge made
from Sumanbai's case:
"A reading of Order 41, Rule 33 clearly goes
to show that the rule has been made to
provide for certain contingency where it may
become necessary to pass a decree although
a party may not have preferred an appeal
but it does not provide that where a decree
has become final against the defendant and
the defendant has not challenged that
decree by way of appeal or cross-objection
still it can be set aside because one of the
parties has preferred the appeal whereof the
question of the decree against the other
defendant is not at all raised."
4. The observation afore-quoted, was made
by the Bench in rejecting Insurer/
respondent's contention challenging the
quantum of compensation awarded, relying
on Order 41, Rule 33, CPC. That is not made
in connection with a claim for interest. The
appeal was by claimant and the Bench
enhanced the interest awarded to 6% per
annum and made that payable from the date
of application till realisation, modifying
Tribunal's award of interest at the rate of 4%,
payable from the date of the order. On merit
also otherwise, as regards quantum,
modification in the award passed by the
Tribunal was made. The basis of the view
taken in rejecting respondent's contention is
that the said respondent/Insurer had not
raised any other "defence" in the
proceedings before the Tribunal except that
the deceased was a passenger in a private
car and Insurer was not liable. On facts, the
Tribunal had negatived that defence.
5. Similarly, in Rukmani Devi (1984 ACJ
548) (supra), there was no controversy in the
appeal by the claimant as regards
jurisdiction for enhancing rate of interest
without cross-objection. At para 14, while
raising the quantum of compensation, order
was also made for payment of interest to the
claimant at the rate of 6% per annum from
the date of application till payment "as
directed by the Tribunal". A learned single
Judge, deciding Kamlabai's case (1990 MPJR
140) (supra), referred also to the case of
Santosh, 1985 MPWN 145. That decision too
deserves attention. That was a case under
Section 12, M.P. Accommodation Control Act
and the question was, if any adverse finding
can be assailed without cross-objecting,
invoking Order 41, Rule 22, CPC. Evidently, in
our opinion, the scope of Rules 22 and 23 of
Order 41 are entirely different. Intermixing of
the two is liable, according to us, to blur
judicial vision resulting in wrong
interpretation of Rule 33. Suffice it to say, it
is not possible for us to agree with the view
expressed in Kamlabai that the jurisdiction of
Appellate Court is cribbed and cabined in
terms of Rule 22 so far as it concerns the
respondents. True, that provides cross-
objection to be filed by the respondent to the
decree impugned in the appeal and he has
been assured thereunder the right to support
the decree even by assailing any finding
made against him in the judgment by the
Court allowing his claim to the extent
decreed. Although both provisions are
procedural and relate to hearing and disposal
of the appeal, Rule 22 embodies the right of
the respondent in relation to the matter
enumerated therein. On the other hand, Rule
33 deals with power and jurisdiction of the
appellate Court exercisable in the appeal in
the manner contemplated therein; that
power "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". That clear
legislative mandate impinges in no way on
the right of the respondent, contemplated in
Rule 22.
6. For the view, we have taken, we find
support in Manjula Devi (1968 Jab LJ
189)(supra). It has been held that the range
and sweep of the discretionary power
envisaged under Order 41, Rule 33 is very
wide as it enables the appellate Court to use
it in a proper case even in favour of a party
who has neither appealed nor filed the cross-
objection so as to prevent justice being
defeated. Two decisions of the Apex Courl,
Pannalal v. State of Bombay, AIR 1963 SC
1516 and Nirmala Bala v. Balai Chand, AIR
1965 SC 1874, were considered in that case.
The Court, in allowing cross-objection of the
claimant, modified the award and held, liable
the party exonerated by the Tribunal. That
was done exercising jurisdiction under Order
41, Rule 33, while rejecting the contention,
at the same time, that in an appeal under
Section 110-D, cross-objection could not be
filed as appeal was not under CPC. Not only
provisions of Order 41, Rule 22, CPC were
held inexhaustive, those of Rule 14 of the
Rules framed under the Act were similarly
held inadequate and not impinging on
Court's power under Order 41, Rule 33.
7. In Panna Lala (supra), provisions of Rules
22 and 33 of Order 41 were juxtaposed and
considered. Direct support for our view, we
receive from the holding therein that "if a
party who could have filed cross-objection
under Order 41 Rule 22, has not done so, it
cannot be said that the appeal Court can
under no circumstances give him relief under
provisions of Order 41, Rule 33, CPC".
Further, it was held, "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 Nirmala Bala (supra),
the Court held that "where in appeal, the
Court reaches a conclusion which is
inconsistent with that of the Court appealed
from, and in adjusting the right claimed by
the appellant, it is found necessary to grant
relief to person who has not appealed, the
power under Order 41, Rule 33 may properly
be invoked".
Relevance of Giani Ram, AIR 1969 SC 1144
to the controversy is more pointed because
duty of appellate court to exercise
jurisdiction under Order 41 Rule 33 in
appropriate cases is stressed stating that "it
would be perpetrating grave injustice" in a
particular case if that is not done because of
words used in Rule 33 "which ought to have
been passed" which means "which ought in
law to have been passed" by the trial Court.
Indeed, the Proviso draws the limit by
affirmatively debarring exercise of
jurisdiction under Rule 33 for passing order
under Section 35-A. What cannot be doubted
is Rule 22 and Rule 33 are mutually exclusive
and it is not possible to agree with the view
expressed in Kamlabai's case (1990 MPJR
140) because Rule 33 operates in a different
field for different purpose and is not
controlled by Rule 22. The words "although
such respondents or parties may not have
filed any appeal or objection"manifest clearly
that legislative intent. Kanayaram, AIR 1985
SC 371 was relied on in this Court's decision
in Shamsher Khan, 1988 ACJ 395 : 1987 Jab LJ
72 in taking the view that change in law
having bearing on the rights of parties before
the appellate Court is required to be taken
note of under Order 41, Rule 33, CPC to
mould relief accordingly. That decision was
on Section 110-D of the Act and
compensation was enhanced on the basis of
guidelines provided in Section 92-A of the Act
despite inapplicability in terms of that
provision.
8. Recent Full Bench decision of this Court in
Sarmaniya Bai, AIR 1990 MP 306 : 1990 ACJ
862 : 1990 JabLJ 386, has held that such
provisions of CPC, the application of which is
not explicitly excluded thereunder or under
the Act to a proceeding under the Act, may
be invoked by the parties and in that view of
the matter, the contention of the claimant
that the provisions of Order 21, CPC were
applicable to the execution of an award
passed by the Tribunal was upheld. In our
view, the High Court, hearing an appeal
Under Section 110-D of the Act, for same
reason, is entitled to exercise jurisdiction
contemplated under Order 41, Rule 33, CPC
to give necessary relief to the claimant due
to him under the law. Powers which are to be
exercised in appeal Under Section 110-D are
widely stated inasmuch as any person
"aggrieved" in any manner by the award
passed by the Claims Tribunal is entitled to
prefer the appeal except when the amount in
dispute in the appeal is less than Rs. 2,000/-.
The provision does not expressly limit the
powers and jurisdiction which the High Court
may exercise in the appeal filed. What is
clear, however, is that High Court is vested
with the jurisdiction to adjudge the legality of
the award and to give necessary relief to the
parties before it because it is duty-bound,
acting as an appellate Court, to examine the
legality, propriety of the award as also due
exercise of jurisdiction vested in it by the
Tribunal. For doing so, the High Court must
possess all powers in that behalf to make
effective exercise of its jurisdiction, see, in
this connection ITO v. Mohd. Kunhi, AIR 1969
SC 430.
9. As a special law, providing a special forum,
albeit in regard to remedy available under
pre-existing dispensation, that makes special
provision in respect to many matters. A Civil
Court passing a money-decree, is entitled to
pass orders in respect of interest as per
Section 34, CPC, but deviation from that is
made in Section 110-C and that is significant.
On the principal sum adjudged "from the
date of the suit to the date of decree"
interest may be awarded till realisation or
such earlier date as may be fixed by the
Court ceiling is set at 6% per annum. On the
other hand, Section 110-CC of the Act directs
that "in addition to the amount of
compensation, simple interest shall also be
paid at such rate and from such date not
earlier than the date of making the claim" to
vest wider jurisdiction in the Claims Tribunal
for awarding interest. Neither is a ceiling set
nor is the jurisdiction to award interest
limited to the date of decree. The only
limitation expressly provided on exercise of
discretion of Claims Tribunal awarding
interest is that simple interest has to be
awarded and "from such date not earlier
than the date of making claim". Another
significant departure made in Section 110-C
is that the expression used are "shall also be
paid" carry in that a mandate against the
judgment-debtor in regard to discharge of
that liability and a duty of the Tribunal to
pass that mandate. Such an express
mandate is not readable in Section 34, CPC.
Indeed, such requirement is also not to be
read in Section 3, Interest Act, 1978 which
makes Court's jurisdiction to allow interest to
the person held entitled to the debt or
damage claimed, "if it thinks fit".
10. We refer now to the case-law cited by
counsel. The decision in Narchinva Kamat,
AIR 1985 SC 1281 was rendered on an
appeal by the respondent in the claim
petition. He challenged Tribunal's decision
exonerating the Insurer of the liability and
shifting that to him. While allowing the
appeal, the award of the Tribunal as well as
the judgment of the High Court were
modified not only holding the Insurer liable
for the compensation awarded, but also for
interest, which their Lordships awarded at
the rate of 12% per annum from the date of
the accident till payment despite there being
no cross-objection of the claimant. True, no
objection was raised. Whether such an order
could be passed by the High Court was not
decided and not being posed that was made.
Whether such an order ought to have been
passed and not being passed by the High
Court, it had to be passed by the Supreme
Court was not posed even as a question to
be decided. Chameli Wati, AIR 1986 SC 1191
took the view that the High Court erred in the
exercise of its discretion under Section 110-C
in not awarding interest from the date of the
application though at the rate of 6% per
annum award in that regard was made. Their
Lordships directed not only interest to be
paid from the date of application, but at the
rate of 12% per annum. In Jagbir Singh, AIR
1987 SC 70, relying on Narchinva Kamat and
Chameli Wati, their Lordships enhanced
similarly the interest to 12% per annum and
made that payable from the date of
application to the date of payment.
11. Obviously, the view which is consistently
prevailed by the Summit Court on the
interpretation of Section 110-CC is that
Claims Tribunal, and in appeal, the High
Court also, in determining the compensation
payable to the claimant preferred application
under Section 110-A of the Act, ought to
award, in addition to the compensation,
simple interest at the rate of 12% per annum
from the date of application. By holding so,
their Lordships have expressed the view,
non-exercise or improper exercise of
jurisdiction by the Tribunal or High Court
under Section 110-C taints the award made
in regard to the compensation. Reason for
that is not far to see as Section 110-CC vests
jurisdiction in Tribunal to make direction in
regard to interest payable to the claimant "in
addition to the amount of compensation"
determined. They also purport to hold that
the duty of the Claims Tribunal and the High
Court to "specify" the rate of interest and the
date from which that becomes payable is
discharged by specifying the interest at the
rate of 12% per annum and the date of
payment as the date of application. That
mandate, in our view, in regard to
interpretation of Section 110-CC has become
the law of the land, as contemplated under
Article 141 of the Constitution and that is
binding on all Courts in India. We are
buttressed in this conclusion noticing the
emerging trend as well at the summit level.
In a recent decision rendered on 3-5-1990 in
the case of Ramesh Chandra v. Randhir
Singh, 1990 (II) 86. The view taken is that for
award of interest, no pleading is necessary,
while in the decision rendered on 15-11-
1989, in the case of R. L. Gupta v. Jupiter
General Insurance Company, 1990 (1) MPWN
177, in categorical terms, the Apex Court
observed that "there have been several
orders of this Court in recent cases in
compensation disputes where the Court has
awarded 12% interest" and on that ground,
their Lordships raised interest also from 6%
to 12% while enhancing the compensation.
12. Brief survey, we also make of this Court's
decisions cited at the Bar, bearing on the
interpretation of Section 110-CC. Shamsher
Khan (supra) took note of Narchinva Kamat,
AIR 1985 SC 1281) and Jagbir Singh, AIR
1987 SC 70) and took the view that the Court
was "bound by the supreme judicial dicta"
and on that basis interest on the enhanced
amount of compensation was raised to 12%
per annum from the date of the application.
Five Division Benches of this Court have also
taken the same view following the same
reasoning. Indeed, in State of M.P. v. Diwan
Chand, 1988 (I) MPWN 64. that cross-
objection interest was enhanced from 6% to
12% per annum from date of application till
payment. In Lachiya Bai, AIR 1989 MP 118 :
1988 ACJ 920 : 1988 Jab LJ 469, interest was
awarded at the rate of 12% per annum from
the date of application till payment. To the
same effect are also decisions in Modhiya v.
Ramesh Chandra, 1987-IMPWN 223; State of
Madhya Pradesh v. Ashadevi, 1988 Jab LJ
485 : (AIR 1989 MP 93) and in Nisar Fatima v.
M.P.S.R.T.C. ,1988 Jab LJ 725 : (AIR 1989 NOC
130). Without cross-objection, in Insurer's
appeal, interest was directed to be paid by
him at the rate of 12% per annum from date
of application in New India Assurance Co. v.
Shakuntalabai, AIR 1987 MP 244 : 1987 ACJ
224 : 1987 Jab LJ 462.
13. Evidently, the trend-setter is the decision
of a learned single Judge of this Court
rendered on 30-11-1985 in State of M.P. v.
Shantibai, 1986 (1) MPWN 54, wherein
Section 110-CC was compared with Section
34, CPC to hold the view that in the absence
of specific statutory mandate prescribed in
Section 110-CC, about rate of interest,
minimum interest charged by commercial
Bank being 12%, that should be specified to
make the award of interest reasonable.
Without cross-objection of the respondent,
the award was modified in appeal by this
Court by raising the interest from 6% to 12%.
For the view taken, inspiration was derived
from a Bench decision of the Gauhati High
Court in the case of United India Fire and
General Insurance Company v. Malati
Bala, (1985) 1 Gauhati LR 443. In that case,
the award of the Tribunal was faulted by the
High Court for not giving reasons for
awarding only 6% interest and not higher
interest, taking the view that Tribunal had
committed jurisdictional error in doing so and
that could be corrected by the High Court
without cross-objection of the
claimant/respondent. In the case of Sardar
Ishwar Singh v. Himachal Puri, 1992 ACC 5 :
AIR 1990 MP 282 decided on 18-9-1989,
power was exercised suo motu in owner's
appeal to enhance interest to 12% per
annum while enhancing the compensation.
We have no doubt that in so far as this Court
is concerned, it has been the considered and
consistent view of several Benches of this
Court for at least last five years that for
proper award of interest under Section 110-
CC it is necessary to specify, even without
cross-objection, the rate of interest, to be
payable at 12% per annum from date of
application till realisation, while awarding or
enhancing compensation in appeal.
14. For all the aforesaid reasons, we hold
that Kamlabai (supra) does not lay down the
law correctly. We hold further that in appeal
under Section 110-D of the Act, the High
Court can act without cross-objection and
enhance interest to 12% per annum, payable
from the date of application till realisation,
on the compensation awarded."
22. Considering that the deceased left behind the mother
and unmarried sister, the multiplier has to be applied
according to the age of the deceased. The deceased was aged
18 years and the appropriate multiplier according to the
judgment of Sarla Verma (supra) is 18 and the appropriate
deduction towards personal expenses is 1/3rd. Following the
aforesaid judgments, the multiplier is enhanced from 16 to 18
and the personal expenses of the deceased are taken to be
1/3rd for the entire period. The increase in minimum wages
due to inflation is set aside. The Claims Tribunal has not
awarded any compensation for loss of estate and funeral
expenses. `10,000/- is awarded towards loss of estate and
`10,000/- is awarded towards funeral expenses.
23. The appellants are entitled to the total compensation of
`3,83,112/- as per the break-up given hereunder:-
1. Compensation towards loss of `3,38,112/-
dependency
[(`2,348 - 1/3) x 12 x 18)]
2. Compensation towards loss of `25,000/-
love and affection
3. Compensation towards loss of `10,000/-
estate
4. Compensation towards funeral `10,000/-
expenses
Total `3,83,112/-
24. For the aforesaid reasons, the appeal is dismissed.
However, the award amount is enhanced from `3,50,000/- to
`3,83,112/- along with interest @9% per annum from the date
of filing of the claim petition before the Claims Tribunal till
realization. The share of the claimants in the award amount
shall be equal.
25. The enhanced award amount along with interest be
deposited by DTC with UCO Bank, Delhi High Court Branch by
means of a cheque drawn in the name of UCO Bank A/c Mohini
Devi within 30 days.
MAC.APP. 446-449/2005, MAC.APP.No.451-54/2005,
MAC.APP.No.541-42/2005, MAC.APP.No.545-46/2005
and MAC.APP.No.552-53/2005
26. The appellant in MAC.APP.No.541-42/2005 and
MAC.APP.No.545-46/2005 and MAC.APP.No.552-53/2005 has
deposited the original award amount with the Claims Tribunal
out of which 50% of the amount has been released to the
claimants and the remaining amount is lying in fixed deposit.
The original fixed deposits are with the Claims Tribunal as
security in terms of the order dated 17th May, 2006 in
MAC.APP.No.545-46/2005 and order dated 21st January, 2009 in
MAC.APP.No.541-42/2005 and MAC.APP.No.552-53/2005. The
Claims Tribunal is directed to release the fixed deposit receipts
to the claimants.
27. Upon the enhanced amount being deposited, UCO Bank is
directed to release 50% of the said amount to the claimants by
transferring the same to their savings bank account and the
remaining amount to be kept in fixed deposit for three years.
28. The interest on the aforesaid fixed deposits shall be paid
monthly by automatic credit of interest in the respective Savings
Account of the beneficiaries.
29. Withdrawal from the aforesaid account shall be permitted to
the beneficiaries after due verification and the Bank shall issue
photo Identity Card to the beneficiaries to facilitate identity.
30. No cheque book be issued to the beneficiaries without the
permission of this Court.
31. The original fixed deposit receipts shall be retained by the
Bank in the safe custody. However, the original Pass Book shall
be given to the beneficiaries along with the photocopy of the
FDRs. Upon the expiry of the period of each FDR, the Bank shall
automatically credit the maturity amount in the Savings Account
of the beneficiaries.
32. No loan, advance or withdrawal shall be allowed on the said
fixed deposit receipts without the permission of this Court.
33. Half yearly statement of account be filed by the Bank in this
Court.
34. On the request of the beneficiaries, Bank shall transfer the
Savings Account to any other branch according to their
convenience.
35. The beneficiaries shall furnish all the relevant documents
for opening of the Saving Bank Account and Fixed Deposit
Account to Mr. M.S. Rao, AGM, UCO Bank, Delhi High Court
Branch, New Delhi (Mobile No. 09871129345).
36. Copy of this judgment be sent to Mr. M.S. Rao, AGM, UCO
Bank, Delhi High Court Branch, New Delhi (Mobile
No.09871129345).
J.R. MIDHA, J
APRIL 27, 2012
