Gauhati High Court
The Future Generali India ... vs Boby Bora And Ors on 4 February, 2022
Page No.# 1/37
GAHC010009032012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./202/2012
THE FUTURE GENERALI INDIA INSURANCE CO LTD
HAVING ITS REGISTERED AND HEAD OFFICE AT INDIABULLS FINANCE
CENTRE, TOWER 1, 12 AND 15 FLOOR, SENAPATI BAPAT MARG,
ELEPHINSTONE W, MUMBAI AND VARIOUS REGIONAL AND BRANCH
OFFICES AND ONE OF THE BRANCH OFFICE AT D.T. TOWERS, DISPUR,
GUWAHATI 781006, KAMRUP, ASSAM.
VERSUS
BOBY BORA and ORS
W/O LATE RAKESH BORA, VILL. NA BHETI, WARD NO. 5, P.O. and P.S.
MORIGAON, DIST. MORIGAON, PIN 782105, ASSAM.
2:TANUJ BORA
S/O LATE RAKESH BORA
VILL. NA BHETI
WARD NO. 5
P.O. and P.S. MORIGAON
DIST. MORIGAON
PIN 782105
ASSAM.
3:THE UNITED INDIA INSURANCE CO. LTD.
JAGIROAD BRANCH REPRESENTED BY REGIONAL OFFICE
G.S. ROAD
CHRISTIANBASTI
P.S. DISPUR
GUWAHATI 781005
DIST. KAMRUP METRO
ASSAM.
Page No.# 2/37
4:MD. RAJIB ALI
S/O LATE JAINAL ABEDIN
VILL. BORIGAON
P.O.NIZ DANDUA
P.S. MORIGAON
DIST. MORIGAON
ASSAM.
5:RAJU BORAH
S/O SHRI AJIT CH. BORA
VILL. NA BHETI
WARD NO. 1
P.O. and P.S. MORIGAON
DIST. MORIGAON
PIN 782105
ASSAM
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
For the appellant : Mr. A.J. Saikia .... Advocates.
Mr. U. Dutta
For the respondent nos.1 & 2 Mr. D. Mondal. .... Advocate.
For the respondent no. 3 : Mr. S. Dutta, ... Sr. Advocate
Mr. S. Dutta, ... Advocate
For the respondent no. 4 : None appears
Date of hearing : 05.01.2022
Date of judgment : 04.02.2022
Page No.# 3/37
JUDGMENT AND ORDER (CAV)
Heard Mr. A.J. Saikia, learned counsel for the appellant. I have
Also heard Mr. D. Mondal, learned counsel appearing on behalf of the
respondent nos.1 and 2 and Mr. S. Dutta, learned Senior Counsel
assisted by Mr. S. Dutta, learned counsel appears on behalf of the
Respondent No.3 insurance company. None appears for the Respondent
Nos.4 & 5.
2. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for
short Act of 1988) is directed against the judgment and award dated
21.05.2012 passed by the Member, Motor Accident Claims Tribunal,
Morigaon in MAC Case No.6/2010. The grievance of the appellant in the
instant appeal primarily is at the direction of the learned Tribunal
below whereby the appellant insurance company was directed to pay
50% of the awarded compensation of Rs.23,62,456/- along with interest
@6% from the date of filing of the claim petition. The appellant have also
assailed the quantum of the compensation on the various grounds
enumerated in the Memo of Appeal.
3. The brief facts of the instant case is that one Rakesh Bora (since
deceased) on 25.11.2009 was moving on the motor cycle as a pillion
rider to go to his place of posting at Amritsar by train on getting urgent
telegram from his department and the said motor cycle was driven by
one Raju Borah, the deceased brother. The offending vehicle i.e. the Tata
Indica No. AS-01-H-2451 was coming from the same direction and
knocked the motor cycle on the PWD road and as a result of that the
Page No.# 4/37
said Rakesh Bora fell on the pucca road and sustained serious head
injury and multiple fractures. He was immediately taken to Morigaon
Civil Hospital for treatment. Thereafter though he was referred to the
GMCH but he was taken for treatment to the Dispur Poly Clinic
Nursing Home. However, unfortunately at 10:30 p.m. the said Rakesh
Bora expired. The Post Mortem was conducted on 26.11.2009. At this
stage also it is relevant herein to mention that a case was registered in
Morigaon Police Station being Morigaon P.S Case No.213/2009 (GR
Case No.1281/2009) under Section 279/304-A of the Indian Penal
Code. The offending vehicle i.e. Tata Indica car was insured with the
respondent no.3 insurance company. It is also relevant to take note of
that the motor cycle wherein the deceased was travelling i.e. Motor Cycle
No.AS-01-AE-6913 was insured with the appellant company.
4. The respondent nos.1 and 2 herein as claimants filed a claim
petition before the Member, Motor Accident Claims Tribunal, Morigaon
which was registered and numbered as MAC Case No.6/2010. In the
same claim petition it was mentioned that the monthly income of the
deceased was Rs.16,206/- and that the deceased was working in the
Indian Armed Forces. It was also mentioned that the medical
expenditure of an amount of Rs.41,568.24 paisa was incurred on the
treatment of the deceased after the accident. The claimants on the basis
of the claim petition claimed an amount of Rs.27,65,232.24 paisa.
5. The Respondent No.3 who was the opposite party no.1 in the claim
proceedings filed their written statement claiming that the respondent
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insurance company is not liable to make any payment on ground of
violation of the insurance policy and further denied all the averments
made in the claim application. It is interesting to note that a perusal of
the written statement do not in any manner disclose a defence of
contributory negligence. In other words, there is no pleading to that
effect that the motor cycle wherein the deceased was travelling was
equally responsible for the accident. The appellant who was the
Opposite Party No.3 in the claim proceedings had categorically taken a
stand in paragraph 15 of the written statement that the accident had
occurred due to rash and negligent driving of the driver of the vehicle
No. AS-01-H-2541 (Tata Indica). Similarly in paragraph 20 it was
pleaded that as the accident took place on account of the rash and
negligent driving by the driver of the Tata Indica car, the
appellant/opposite party no.3 was not liable to pay any compensation to
the claimants. The owner of the motor cycle who was the opposite party
no.4 in the claim proceedings filed a written statement stating inter alia
that the said owner was riding the bike along with the deceased sitting
on the backside. It was specifically pleaded that the offending vehicle
Tata Indica car came from the same direction in a rash and negligent
manner with a very high speed knocked the motor bike from the
backside on the PWD road at Na-Bheti Tiniali. Accordingly the deceased
who was the brother of the opposite party no.4 sustained serious head
injuries and later he succumbed to his injuries on 25.11.2009. On the
basis of the pleadings, the Tribunal below framed as many as 3 (three)
Issues which are extracted hereinbelow :
1. Whether the accident took place due to rash and negligent
driving by the driver of offending Vehicle, in question,
Page No.# 6/37
(1) AS-01-H-2541 Tata Indica,
(2) AS-01-AE-6913 Bajaj Platina
2. Whether the claimant/claimants is/are entitled to get any
compensation? If so, what should be the quantum of the said
compensation?
3. Who should be liable to pay the compensation?
6. The record further discloses that from the claimants' side as many
as 3 witnesses adduced evidence who were the wife, Smti Boby Bora
(PW-1), the brother Sri Raju Borah (PW-2) and one Sri Naba Kamal Bora
(P.W-3). In the cross examination of PW-1 it has been categorically
stated that the accident took place due to fault of the Tata Indica. The
PW-2 who was riding the bike along with the deceased in his evidence-
in-chief stated that the accident took place due to the fault of the Tata
Indica car which had come from the same direction driven in a rash and
negligent manner and knocked his bike from the backside. During his
cross-examination he duly stood to his stand as taken in his evidence
on affidavit by categorically stating at the time of his cross-examination
that the Tata Indica knocked down his bike from the backside and the
accident took place due to the fault of the Tata India car. The PW-3 who
was an independent eye witness also stated that the Tata Indica car was
coming from the same direction driven in a rash and negligent manner
and knocked the bike of the PW-2 from the backside. He saw the said
incident from a distance from 15 to 20 feet and noticed that the
deceased had fallen down on the PWD pucca road and the P.W-3 rushed
to the spot and found the deceased in serious condition sustaining
grievous injuries on his head and whole body. He stood to his stand
taken in his evidence-on-affidavit during his cross-examination. The
defence witness no.1 was an Investigator engaged by the Respondent
Page No.# 7/37
No.3 company, one Sri Gagan Chandra Talukdar. He in his evidence-on-
affidavit had stated that he was engaged by the Respondent No.3 herein
to collect evidence regarding the MAC Case No.6/2010 and during
investigation process Sri Bhaben Bordoloi, Gaonburah of Buragaon,
Mouza-Morigaon had issued a Certificate dated 12.12.2010 (Exhibit-A)
informing the details of Late Rakesh Bora and about the motor vehicle
accident in which he was involved. However, from his cross-examination
it is apparent that he had not submitted any report of investigation
before the Tribunal. He also during his examination stated that he did
not know whether the certificate issued by the Gaonburah is true or
false. The Investigating Officer of the Morigaon P.S Case No.213/2009,
one Sarat Saikia was the defence witness no.2. In his evidence on chief
he stated that when he went to the site wherein the accident took place
and he found that the injured person was being taken by the local
public to the Morigaon Civil Hospital in a Maruti car and thereupon he
interrogated the witnesses. He could find that the offending Tata Indica
car had hit the injured and left the place of occurrence. He further
stated that upon his investigation, it was found that the deceased was
going by the motor cycle at the time of the accident and the Tata Indica
car dashed the motor cycle from the backside and both the vehicles
were moving on the same direction at the time of the accident. In his
cross-examination he stated that he saw the injured man who was
taken to the hospital by a Maruti car but he heard about the incident of
the Tata Indica car hitting the motor cycle and then ran away. At this
stage, it may also be relevant herein to mention that the medical
prescriptions, advice slips and the payments made towards the
expenditures incurred for treatment of the deceased were exhibited
Page No.# 8/37
before the Tribunal below.
7. The Tribunal below vide the judgment dated 21.05.2012 took up
all the three issues together. In respect to the issue no.1 as to whether
the accident took place due to rash and negligent driving by the driver of
offending vehicle in question i.e. Tata Indica car or the Bajaj Platina
motor cycle, the Tribunal below arrived at a finding that the accident is
a fact and both the vehicles are responsible for causing the death of the
deceased and accordingly was of the opinion that both the insurance
companies i.e. the appellant as well as the respondent no.3 herein
equally liable to pay the compensation inasmuch as, there was
negligence on the part of the motor cycle which contributed to the
accident. Now coming to the quantum by applying the multiplier 18
upon arriving at the conclusion that the income of the deceased was
Rs.10,891/- per month had arrived at a finding that the total
compensation of Rs.23,52,456/-. Additionally an amount of Rs.10,000/-
also was given for medical expenses, for funeral expenses, for loss of
consortium, loss of estate. Thereby the total compensation awarded was
Rs.23,62,456/- to be paid jointly by the opposite party nos.1 and 3 in
the claim proceedings along with interest @ 6% p.a. from the date of
filing of the claim petition. It may be relevant at this stage to note that
the Tribunal below did not take into consideration, the future prospects
and without any reasoning or basis granted Rs.10.000/- on the
conventional heads relating to loss of consortium, loss of estate, funeral
expenses as well as the medical expenditures.
Page No.# 9/37
8. The opposite party no.3 in the claim proceedings as appellant
preferred the instant appeal. It is relevant to take note of that the
claimants as well as the respondent United India Insurance Company
Limited did not file any appeal or a cross-objection. At this stage it may
also be relevant herein to mention when the instant appeal was
admitted this Court vide an order dated 23.11.2015 directed the stay of
the impugned judgment and award during the pendency of the appeal
subject to the condition that the appellant shall deposit Rs.6,00,000/-
with the Registry of this Court within a period of 6 (six) weeks and
accordingly the appellant apart from depositing the mandatory statutory
deposit of Rs.25,000/- deposited the said amount of Rs.6,00,000/- as
has been submitted by the learned counsel for the appellant.
9. The learned counsel for the appellant Mr. A.J. Saikia submitted
that from the pleadings as well as the evidence on record it would be
apparent that there was no evidence which would suggest a
contributory negligence of the driver of the motor cycle which resulted in
the accident. The evidence on record is absolutely clear that the Tata
Indica car was coming in a rash and negligent manner from the same
direction and hit the motor cycle from behind wherein the deceased was
riding as a pillion rider. He further submitted that a perusal of the
impugned award would also go to show that there are no reasons
assigned as to why the appellant company has been imposed to pay
50% of the awarded sum. He submits that this has been done at the
whims of the learned Tribunal below.
Page No.# 10/37
10. Mr. D. Mondal, learned counsel appearing on behalf of the
respondent nos.1 and 2, who are the claimants contended that the
evidence on record would clearly show that it is the Tata Indica car
which was the offending vehicle driven in a rash and negligent manner
which resulted in the accident. There is no evidence on record to show
or suggest that there was any contributory negligence on the part of the
motor cycle which led to the accident. Though no appeal or cross
objection was preferred against the quantum awarded to the claimants,
he contended that by virtue of Section 168 of the Act of 1988 it is the
statutory duty of the Courts/Tribunals to pass awards determining the
amount of compensation as to be just and reasonable and accepted by
legal standards. He submitted that applying the judgment of the
Constitution Bench of the Supreme Court rendered in National
Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC
680, Magma General Insurance Company Co. Ltd. vs. Nanu Ram Alias
Chuhru Ram and Others, reported in (2018) 18 SCC 130; United India
Insurance Company Limited vs. Satinder Kaur @ Satwinder Kaur &
Others, reported in (2021) 11 SCC 780 and New India Assurance
Company Limited vs. Somwati and Others reported in (2020) 9 SCC 644,
the claimants are entitled to enhanced compensation in terms with the
enunciation of law by the Supreme Court under Section 168 of the Act
of 1988. He further submits that non filing of an appeal or a cross
objection by the claimants would not prove fatal for enhancement of the
amount to which the claimants otherwise are entitled under law and in
that regard he referred to the following judgments :
1. Nagappa vs. Gurudayal Singh, reported in (2003) 2 SCC 274
Page No.# 11/37
2. Jitendra Khimshankar Trivedi vs. Kasam Daud Kumbha r&
Others reported in (2015) 4 SCC 237
3. National Insurance Co. Ltd. vs. Suwala Dutta Saikia and
Others reported in MANU/GH/0759/2016.
11. On the other hand, Mr. S. Dutta, learned Senior Counsel
appearing on behalf of the respondent no.3 submits that the respondent
no.3 had filed an application under Order XLI Rule 27 for the purpose of
adducing additional evidence before this Court. He submits that when
the instant appeal was listed for hearing before this Court, the counsel
for the Respondent No.3 came to learn from the records that GDE
No.690 dated 25.11.2009 revealed that there was no involvement of the
vehicle i.e. Tata Indica car in the said accident and also as per the
Certificate dated 05.12.2009 issued by the Traffic Branch. It was only
on 02.12.2009 as per the FIR, the involvement of the vehicle AS-01-H-
2541 was shown for the first time. Further to that, the Certificate issued
by Gaonburah, the motor cycle bearing no. AS-01-AE-6913 dashed
against the rickshaw due to which the accident occurred and from the
said evidence, Mr. Dutta, submits that if taken into consideration it
would clearly show that there was no involvement of the Tata Indica car
and it was only a later date that the involvement of the Tata Indica car
was shown and under such circumstances he submitted that the said
evidence which came into light subsequently to the counsel of the
respondent no.3 company ought to be taken on record for proper
adjudication of the appeal. It is also relevant herein to mention that to
the said application an objection was duly filed by the Respondent Nos.1
Page No.# 12/37
and 2 on the ground of maintainability as well as also denying the
contents of the said application.
12. As regards the enhancement of the compensation, Mr. Dutta
submits that in absence of a cross appeal or a cross objection claiming
enhancement of amount the claimants would not be entitled to any
enhancement and this aspect of the matter has already been settled by
a judgment of the Supreme Court rendered in the case of Ranjana
Prakash and Others vs. The Divisional Manager and Another, reported in
(2011) 14 SCC 639. He submits that the Supreme Court specifically
decided the issue as regards the entitlement for enhancement sans a
cross appeal or a cross objection seeking enhancement. He submits that
the judgments referred to in Nagappa (supra) and Jitendra Khimshankar
Trivedi (supra) are all judgments wherein the Supreme Court had
exercised the powers under Article 142 of the Constitution and this
Court in exercise of the powers under Order XLI Rule 33 of the CPC
cannot grant a relief on any new ground in absence of a cross appeal or
a cross objection. He also relied upon the judgment of this Court
rendered in the case of Oriental Insurance Company Limited vs. Dipali
Sarma dated 20.07.2017 passed in MAC Appeal No.72/2017 wherein
the judgment of this Court in Suwala Dutta Saikia (supra) was taken
into consideration.
13. I have heard the learned counsel for the parties at length and the
points of determination which arises in the instant appeal are twofold -
1. Whether the Tribunal was justified in directing the appellant
Page No.# 13/37
to pay 50% of the awarded sum along with interest?
2. Whether the claimants are entitled to an enhanced
compensation in absence of a cross appeal or a cross objection
filed?
14. For the purpose of deciding, the first point of determination as
framed hereinabove as to whether the learned Tribunal was justified in
imposing 50% of the awarded sum upon the appellant company, it
would be relevant to take into consideration the pleading as well as the
evidence on record. In the claim petition, it was specifically alleged that
the deceased Late Rakesh Bora was going from Morigaon towards
Jagiroad with his elder brother Raju Borah in a motor bike bearing
registration no. AS-01-AE-6913 when the offending vehicle Tata Indica
bearing registration no. AS-01-H-2541 came from the same direction in
a rash and negligent manner with a very high speed knocked the motor
bike from the backside in the PWD road at Na-bheti Tiniali, as a result
of which the deceased Rakesh Bora fell down on the PWD road and
sustained serious head injuries and subsequently succumbed to his
injuries on 25.11.2009. The United India Insurance Company Limited
which is the Respondent No.3 in the instant proceeding filed its written
statement did not claim the plea of contributory negligence and the plea
so taken is that the Respondent No.3 did not admit the place, date and
time of the accident and the claimants were put to the strictest proof.
The Opposite Party No.2 (owner of the Tata Indica Car) had filed the
written statement wherein it was duly admitted that the accident took
place but stating inter alia that the offending vehicle was insured with
Page No.# 14/37
the Respondent No.3 insurance company and as such the Respondent
No.3 insurance company would be liable to indemnify the Opposite
Party No.2 in the event of any award is passed. The written statement of
the appellant who was the Opposite Party No.3 had taken categorical
stand that the offending vehicle Tata Indica car knocked down the motor
bike from the backside wherein the deceased Rakesh Bora fell down on
the road and sustained grievous head injuries and as a result of which
he succumbed to his injuries later on and as such the Opposite Party
No.3/appellant is not liable to pay any compensation to the claimants.
The Opposite Party No.4 who was the owner of the motor bike AS-01-
AE-6913 had categorically taken a stand that the offending vehicle Tata
Indica car which was driven in a rash and negligent manner from the
same direction with a high speed knocked the motor bike from the
backside and as a result of which his brother Late Rakesh Bora fell
down on the road and sustained head injuries and later on expired on
25.11.2009.
15. The evidence which is relevant for the purpose of deciding the
instant point of determination is the evidences of PW-2 Sri Raju Borah
as well as PW-3 Sri Naba Kamal Bora whereby both the said witnesses
categorically stated that the offending Tata Indica vehicle came from the
same direction in a rash and negligent manner and hit the motorcycle
from the backside and as a result of which Late Rakesh Borah sustained
injuries and subsequently succumbed to injuries on the same day.
During the cross-examination, the said witnesses corroborated the
statements made in their evidence-on-affidavit. The evidence of one
Sarat Saikia who was the Investigating Officer also goes to show that
Page No.# 15/37
from enquiries and investigations made by him it was found that the
offending Tata Indica vehicle dashed the motorcycle from the backside
which led to the accident and the subsequent death of Late Rakesh
Bora. On behalf of Respondent No.3, one insurance investigator had
adduced evidence. In his examination-in-chief he stated that during
investigation process Sri Bhaben Bordoloi, Gaonburah of Buragaon,
Mouza-Morigaon issued a Certificate dated 12.12.2010 informing the
details of accident of Late Rakesh Bora and the said Certificate was
annexed as Exhibit-A. During his cross-examination he duly admitted
that he had not submitted any report before the Motor Accident Claims
Tribunal. As regards the Certificate marked as Exhibit-A he during his
cross-examination stated that he did not know whether the Certificate
issued by the Gaonburah is true or false. The records shows that the
Respondent No.3 herein had filed a Petition No.213/2011 praying for
issuing summons to the Gaonburah and the learned Tribunal allowed
the said prayer on 24.01.2011. However, the order dated 09.02.2011
shows that the Respondent No.3 did not take steps to call the
Gaonburah. Thereafter the records further reveals that steps were taken
on 2nd of March 2011 for summoning the said Gaonburah and the
Jarikarak submitted a report on 31.03.2011 to the effect that when he
went to the house of the Gaonburah on 29.03.2011, the wife of the
Gaonburah informed that the Gaonburah had expired three months
before. However on 08.05.2012 after more than a year elapsed a petition
was filed stating that the Gaonburah Bhaben Bordoloi expired and
prayed to issue summons to the wife of the Gaonburah which was also
allowed by the learned Tribunal and thereby fixing 19.05.2012 for
defendant witness/argument. On 09.05.2012 another petition was filed
Page No.# 16/37
by the Opposite Party No.1/Respondent No.3 herein for fixing another
date for DWs which was however rejected thereby fixing 21.05.2012 for
arguments and judgment and thereupon the judgment was delivered on
21.05.2012.
16. It would also be relevant to take note of the charge-sheet
bearing Charge-Sheet No.16/2010 submitted by the Investigating Officer
in respect to Morigaon PS Case No.213/2009 wherein it was inter alia
stated that the offending Tata Indica car bearing no. AS-01-H-2451
which was being driven in a rash and negligent manner had hit the
motorcycle from behind which led to the accident and the subsequent
death of Late Rakesh Bora. In this backdrop the application under
Order XLI Rule 27 filed by the Respondent No.3 registered as IA(C)
No.3864/2018 is required to be looked into whereby the respondent
No.3 seeks to adduce additional evidence in the appellate stage. The law
as regards adducing of additional evidence at the appellate stage has to
be looked into within the perspective of Order XLI Rule 27 of the Code of
Civil Procedure. The said provision is quoted hereinbelow:
"Order XLI Rule27 : Production of additional evidence in Appellate
Court -
(1) The parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the Appellate Court. But if--
(a) the Court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, or
1[(aa) the party seeking to produce additional evidence, establishes that
notwithstanding the exercise of due diligence, such evidence was
not within his knowledge or could not, after the exercise of due
diligence, be produced by him at the time when the decree appealed
against was passed, or]
(b) the Appellate Court requires any document to be produced or any
Page No.# 17/37
witness to be examined to enable it to pronounce judgment, or for
any other substantial cause,
the Appellate Court may allow such evidence or document to be produced,
or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its admission."
17. From the above quoted provision, it would be clear that the
general principle is that the Appellate Court should not travel outside
the record of the Lower Court and cannot take any evidence in appeal.
However as an exception, Order XLI Rule 27 of the Code of Civil
Procedure enables the Appellate Court to take additional evidence in
exceptional circumstances. The Appellate Court may permit additional
evidence only and only if the conditions laid down in the said Rule are
found to exist. The parties are not entitled as of right to admission of
such evidence. It would also be relevant to take note of that the said
provision does not apply, when on the basis of the evidence on record
the Appellate Court can pronounce a satisfactory judgment. The
permission to adduce additional evidence is a sole discretion of the
Appellate Court and is to be used sparingly. The Supreme Court in the
case of Union of India vs. Ibrahim Uddin and Another reported in (2012)
8 SCC 148 had the occasion of dealing with the said provision and
observed at paragraph nos. 37 to 42 as hereinunder:
"37. The Appellate Court should not ordinarily allow new evidence
to be adduced in order to enable a party to raise a new point in
appeal. Similarly, where a party on whom the onus of proving a
certain point lies fails to discharge the onus, he is not entitled to a
fresh opportunity to produce evidence, as the Court can, in such a
case, pronounce judgment against him and does not require any
additional evidence to enable it to pronounce judgment. (Vide Haji
Mohammed Ishaq v Mohamed Iqbal and Mohamed Ali and Co.).
Page No.# 18/37
38. Under Order XLI , Rule 27 CPC, the appellate Court has the
power to allow a document to be produced and a witness to be
examined. But the requirement of the said Court must be limited to
those cases where it found it necessary to obtain such evidence for
enabling it to pronounce judgment. This provision does not entitle
the appellate Court to let in fresh evidence at the appellate stage
where even without such evidence it can pronounce judgment in a
case. It does not entitle the appellate Court to let in fresh evidence
only for the purpose of pronouncing judgment in a particular way. In
other words, it is only for removing a lacuna in the evidence that the
appellate Court is empowered to admit additional evidence. (Vide
Lala Pancham).
39. It is not the business of the Appellate Court to supplement the
evidence adduced by one party or the other in the lower Court.
Hence, in the absence of satisfactory reasons for the non-
production of the evidence in the trial court, additional evidence
should not be admitted in appeal as a party guilty of remissness in
the lower court is not entitled to the indulgence of being allowed to
give further evidence under this rule. So a party who had ample
opportunity to produce certain evidence in the lower court but failed
to do so or elected not to do so, cannot have it admitted in appeal.
(Vide State of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v.
C.M. Armugam).
40. The inadvertence of the party or his inability to understand the
legal issues involved or the wrong advice of a pleader or the
negligence of a pleader or that the party did not realise the
importance of a document does not constitute a "substantial cause"
within the meaning of this Rule. The mere fact that certain evidence
is important, is not in itself a sufficient ground for admitting that
evidence in appeal.
41. The words "for any other substantial cause" must be read with
the word "requires" in the beginning of sentence, so that it is only
where, for any other substantial cause, the Appellate Court requires
additional evidence, that this Rule will apply e.g. when evidence
has been taken by the lower Court so imperfectly that the Appellate
Court cannot pass a satisfactory judgment.
Page No.# 19/37
42. Whenever the appellate Court admits additional evidence it
should record its reasons for doing so. [sub-rule (2)]. It is a salutary
provision which operates as a check against a too easy reception of
evidence at a late stage of litigation and the statement of reasons
may inspire confidence and disarm objection. Another reason of this
requirement is that, where a further appeal lies from the decision,
the record of reasons will be useful and necessary for the Court of
further appeal to see, if the discretion under this Rule has been
properly exercised by the Court below. The omission to record the
reasons must, therefore, be treated as a serious defect. But this
provision is only directory and not mandatory, if the reception of
such evidence can be justified under the rule."
18. In the backdrop of the above enunciation of law by the Supreme
Court, let this Court take into consideration the application filed by the
Respondent No.3 under Order XLI Rule 27, whereby the appellant
sought the leave to bring on record an extract of the G.D. Entry No.690
dated 25.11.2009/690, the Certificate dated 05.12.2009 issued by the
In-charge, Traffic Branch as well as the Certificate issued by the
Gaonburah on 12.12.2010. For the purpose of seeking leave to adduce
the evidence pertaining to the G.D. Entry No.690 dated 25.11.2009 as
well as the Certificate dated 05.12.2009, it is the opinion of this Court
that the leave so sought for in respect to those Certificates do not come
within the exceptions as contained in Order XLI Rule 27. The evidence
of DW-1 reveals that the said Certificate dated 12.12.2010 was exhibited
as Exhibit-A but the said Certificate could not be proved as the defence
witness himself stated that he did not know whether the Certificate
issued by the Gaonburah is true or false, thereby the witness of the
Respondent No.3 himself questioned as regards the veracity of the said
Certificate. At this stage it may also be relevant to take note of that the
Page No.# 20/37
findings of the Tribunal below as regards the Issue No.1 is clear and
categorical to the effect that the accident happened on 25.11.2009
which led to the death of Late Rakesh Bora. The said findings has not
been put to challenge by the Respondent No.3 by filing an appeal or
even a cross-appeal and on the other hand it reveals from the records
that the said Respondent No.3 had also accepted the award by making
payment of the awarded sum. Under such circumstances, the question
of allowing the application under Order XLI Rule 27 does not arise in the
facts of the instant case.
19. The pleadings as well as the evidence on records would clearly go
to show that there was an accident on 25.11.2009, whereby the
offending Tata Indica car had hit the motorcycle from the backside
which led to grievous injuries of the Late Rakesh Bora who subsequently
succumbed to his injuries on the same date. It was nobody's case as
could be seen from the pleadings as well as the evidence that there was
a contributory negligence on the part of the offending Tata Indica car
along with the motorcycle which led to the accidents. All the evidences
including the testimony of the eye witnesses, the evidence of the
Investigating Officer as well as the Charge-sheet points to only one
direction to show that the accident happened due to the rash and
negligent driving of the Tata Indica car. A perusal of the impugned
judgment would show that without assigning any reasons the learned
Tribunal perversely held that both the insurance companies are equally
liable to pay the awarded sum. This findings of the learned Tribunal
being perverse and as is completely contrary to the records is therefore
interfered with thereby holding that the Tata Indica car was solely
Page No.# 21/37
responsible for the incident and consequently the Respondent No.3 is
solely liable to pay the awarded sum.
20. The next point of determination as framed is to whether the
claimants who are the Respondent Nos.1 and 2 are entitled to a larger
compensation than what has been awarded by the Tribunal below
without a cross-appeal or a cross-objection. The Supreme Court in the
case of Ranjana Prakash and Others vs. Divisional Manager and Another
reported in (2011) 14 SCC 639 took into consideration the said issue
and observed at paragraph nos. 7 and 8 as hereinunder:
"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 seeks 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
is by the owner/insurer. Similarly, if the compensation determined by the
Page No.# 22/37
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".
21. A reading of the above quoted paragraphs of Ranjana Prakash
(supra), it would be seen that the High Court cannot increase the
compensation in an appeal by the owner/insurer for reducing the
compensation nor can at it reduce the compensation in an appeal by the
claimant seeking enhancement of compensation. In discussing the
provisions of Order XLI Rule 33 of CPC, the Supreme Court had held
that while the said provisions can be pressed into service inter alia to
make the award more effective or to make the other parties to share the
benefits and liabilities but cannot be invoked to get a larger or a higher
relief. It may however be relevant herein to note that in the said
judgment, the Supreme Court did not take into consideration the
consistent stand of the Supreme Court that in terms of Section 168 of
the Act of 1988, it is the statutory duty of the Tribunal and the
Appellate Court to award just and reasonable compensation.
22. It may also be relevant to take into consideration the scope and the
power under Order XLI Rule 33 of the Code of Civil Procedure. The
Supreme Court in the case of Banarsi and Others vs. Ram Phal reported
in (2003) 9 SCC 606 had the occasions to deal with both the scope of
Order XLI Rule 22 as well as Order XLI Rule 33. The effect of not filing of
Page No.# 23/37
a cross- appeal or a cross-objection and observed at paragraph nos. 10
and 11 as hereinunder :
"10. The CPC Amendment of 1976 has not materially or substantially
altered the law except for a marginal difference. Even under the amended
Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands
in its entirety is neither entitled nor obliged to prefer any cross-objection.
However, the insertion made in the text of sub-rule (1) makes it
permissible to file a cross- objection against a finding. The difference
which has resulted we will shortly state. A respondent may defend
himself without filing any cross-objection to the extent to which decree is
in his favour; however, if he proposes to attack any part of the decree he
must take cross-objection. The amendment inserted by 1976 amendment
is clarificatory and also enabling and this may be made precise by
analysing the provision. There may be three situations:-
(i) The impugned decree is partly in favour of the appellant and
partly in favour of the respondent.
(ii) The decree is entirely in favour of the respondent though an issue
has been decided against the respondent.
(iii) The decree is entirely in favour of the respondent and all the
issues have also been answered in favour of the respondent but
there is a finding in the judgment which goes against the
respondent.
11. In the type of case (i) it was necessary for the respondent to file an
appeal or take cross objection against that part of the decree which is
against him, if he seeks to get rid of the same though that part of the
decree which is in his favour he is entitled to support without taking any
cross-objection. The law remains so post amendment too. In the type of
cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the
respondent to take any cross objection as he was not the person
aggrieved by the decree. Under the amended CPC, read in the light of the
Page No.# 24/37
explanation, though it is still not necessary for the respondent to take any
cross-objection laying challenge to any finding adverse to him as the
decree is entirely in his favour and he may support the decree without
cross-objection; the amendment made in the text of sub-rule (1), read with
the explanation newly inserted, gives him a right to take cross objection to
a finding recorded against him either while answering an issue or while
dealing with an issue. The advantage of preferring such cross-objection is
spelled out by sub-rule (4). In spite of the original appeal having been
withdrawn or dismissed for default the cross-objection taken to any
finding by the respondent shall still be available to be adjudicated upon
on merits which remedy was not available to the respondent under the
unamended CPC. In pre-amendment era, the withdrawal or dismissal for
default of the original appeal disabled the respondent to question the
correctness or otherwise of any finding recorded against the respondent."
23. A perusal of the above quoted paragraphs of the judgment would
show that a respondent may defend himself without filing any cross-
objection to the extent to which decree in his favour however if he
proposes to attack any part of the decree, he must take cross-objections
though the amendment inserted by the 1976 amendment is clarificatory
and also enabling. In paragraph 13 of the said judgment which is
quoted hereinunder, the Supreme Court held that in absence of a cross-
appeal preferred or cross-objection taken by the plaintiff/respondent in
the said case, the First Appellate Court did not have the jurisdiction to
modify the decree by granting an absolute out and out decree for
specific performance of the agreement to sell which is to the prejudice to
the appellants.
"13. We are, therefore, of the opinion that in the absence of cross appeal
preferred or cross-objection taken by the plaintiff-respondent the First
Appellate Court did not have jurisdiction to modify the decree in the
manner in which it has done. Within the scope of appeals preferred by the
appellants the First Appellate Court could have either allowed the
Page No.# 25/37
appeals and dismissed the suit filed by the respondent in its entirety or
could have deleted the latter part of the decree which granted the decree
for specific performance conditional upon failure of the defendant to
deposit the money in terms of the decree or could have maintained the
decree as it was passed by dismissing the appeals. What the First
Appellate Court has done is not only to set aside the decree to the extent
to which it was in favour of the appellants but also granted an absolute
and out and out decree for specific performance of agreement to sell
which is to the prejudice of the appellants and to the advantage of the
respondent who has neither filed an appeal nor taken any cross-
objection".
24. In the said backdrop it would be relevant to take note of the
statement of law in the said judgment as regards the nature and scope
of Order XLI Rule 33. Paragraph 15 of the said judgment being relevant
is quoted hereinbelow :
"15. 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
Page No.# 26/37
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 of a person not a party before
the Court; secondly, a claim given up or lost cannot be revived; and
thirdly, such part of the decree which essentially ought to have been
appealed against or objected to by a party and which that party has
permitted to achieve a finality cannot be reversed to the advantage of
such party. A case where there are two reliefs prayed for and one is
refused while the other one is granted and the former is not inseparably
connected with or necessarily depending on the other, in an appeal
against the latter, the former relief cannot be granted in favour of the
respondent by the appellate court exercising power under Rule 33 of
Order 41".
25. A perusal of the said judgment would show that the Appellate
Court's power under Order XLI Rule 33 is subject to at least three
limitations. Firstly, the said power cannot be exercised to the prejudice
or disadvantage of a person not a party before the Court; secondly, a
claim given up or lost cannot be revived and thirdly, such part of a
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.
26. Another judgment of the Supreme Court which is also relevant to
Page No.# 27/37
note though passed in a land acquisition case but the underlying
principle being the same which is the judgment rendered in the case of
Pralhad and Others vs. State of Maharashtra and Another reported in
(2010) 10 SCC 458 and more particularly the paragraphs 17 to 22 which
is quoted hereinbelow :
"17. Now, the only question which remains is whether the landowners,
without filing an appeal before the High Court from the order of the
Reference Court, are entitled to the aforesaid benefit on the basis of their
application under Order 41 Rule 33 of CPC.
18. The provision of Order 41, Rule 33 of CPC is clearly an enabling
provision, whereby the Appellate Court is empowered to pass any decree
or make any order which ought to have been passed or made, and to
pass or make such further or other decree or order as the case may
require. Therefore, the power is very wide and in this enabling provision,
the crucial words are that the Appellate Court is empowered to pass any
Order which ought to have been made as the case may require. The
expression 'Order ought to have been made' would obviously mean an
Order which justice of the case requires to be made. This is made clear
from the expression used in the said Rule by saying 'the court may pass
such further or other order as the case may require.' This expression
'case' would mean the justice of the case. Of course, this power cannot be
exercised ignoring a legal interdict or a prohibition clamped by law.
19. In fact, the ambit of this provision has come up for consideration in
several decisions of this Court. Commenting on this power, Mulla (CPC,
15th Edition, pg. 2647) observed that this Rule is modelled on Order 59,
Rule 10(4) of the Supreme Court of Judicature of England, and Mulla
further opined that the purpose of this Rule is to do complete justice
between the parties.
20. In Banarsi vs. Ramphal, this Court construing the provisions of Order
41 Rule 33 of CPC held that this provision confers powers of the widest
amplitude on the appellate court so as to do complete justice between the
parties. This Court further held that such power is unfettered by
considerations as to what is the subject matter of appeal or who has filed
the appeal or whether the appeal is being dismissed, allowed or disposed
Page No.# 28/37
of while modifying the judgments appealed against. The learned Judges
held that one of the objects in conferring such power is to avoid
inconsistency, inequity and inequality in granting reliefs and the
overriding consideration is achieving the ends of justice. The learned
Judges also held that the power can be exercised subject to three
limitations: firstly, this power cannot be exercised to the prejudice of a
person who is not a party before the Court; secondly, this power cannot
be exercised in favour of a claim which has been given up or lost; and
thirdly, the power cannot be exercised when such part of the decree
which the party has been permitted to become final by a party is reversed
to the advantage of that party. (See SCC p.619, para 15 : AIR para 15 at
p. 1997).
It has also been held by this Court in Samundra Devi vs. Narendra Kaur
that this power under Order 41, Rule 33 of CPC cannot be exercised
ignoring a legal interdict.
21. In the instant case, the right of the landowner to receive the benefit
under section 23(1-A) of the Principal Act is legally permissible in view of
the majority decision in Paripoornan. Therefore, the law declared by this
Court in Paripoornan (supra) is binding on the High Court under Article
141 of the Constitution and High Court is bound to follow the same,
especially when an application has been made by the landowner under
Order 41 Rule 33 of CPC.
22. In view of the aforesaid interpretation given to Order 41 Rule 33 of
CPC by this Court, we are of the opinion that the High Court denied the
relief to the appellants to which they are entitled in view of the
Constitution Bench decision in Paripoornan, by taking a rather restricted
and narrow view of the scope of Order 41 Rule 33 of CPC and also on a
misconstruction of the ratio in Paripoornan".
From the above quoted paragraphs, it would be seen that power
under Order XLI Rule 33 of the CPC cannot be exercised ignoring a legal
interdict. The limitations set to the exercise of power under Order XLI
Rule 33 by the judgment of the Supreme Court in the case of Banarsi
(Supra) also is required to be taken into account while the appellate
Page No.# 29/37
court exercises the power under Order XLI Rule 33 of the CPC. However,
the Supreme Court taking into consideration that the right of landowner
to receive the benefit under Section 23(1-A) of the Land Acquisition Act,
1894 is legally permissible in view of the judgment of the Constitution
Bench in K.S. Paripoornan vs. State of Kerala reported in (1994) 5 SCC
593 which was binding on the High Court under Article 141 of the
Constitution of India, the High Court was bound to follow the same
especially when an application was made under Order XLI Rule 33 of
the CPC and the Supreme Court thereby enlarged the relief to the
claimant/landowner.
27. Now in the above backdrop of the discussions as regards the power
under Order XLI Rule 33 of the CPC, it would also be necessary to look
into the judgment of the Supreme Court in the case of Nagappa (supra)
and Jitendra Khimshankar Trivedi (supra) as well as also the judgment
in the case of Sanobanu Nazirbhai Mirza and Others vs. Ahmedabad
Municipal Transport Service reported in (2013) 16 SCC 719. Both in
Nagappa (supra) and Jitendra Khimshankar Trivedi (supra) the Supreme
Court delved on the scope and ambit of Section 168 of the Act of 1988
and held that Section 168 empowers the claims Tribunal to make an
award determining the amount of compensation which appears to it to
be just and the only requirement for determining the compensation is it
must be 'just' and there is no limitation or restriction on its power for
awarding just compensation. In Jitendra Khimshankar Trivedi (supra),
the Supreme Court held at paragraph 12 as hereinunder :
"12. The tribunal has awarded Rs.2,24,000/- as against the same,
claimants have not filed any appeal. As against the award passed by the
Page No.# 30/37
Tribunal when the claimants have not filed any appeal, the question
arises whether the income of the deceased could be increased and
compensation could be enhanced. In terms of Section 168 of the Motor
Vehicles Act, the courts/the Tribunals are to pass awards determining
the amount of compensation as to be fair and reasonable and accepted
by the legal standards. The power of the courts in awarding reasonable
compensation was emphasized by this Court in Nagappa vs. Gurudayal
Singh, Oriental Insurance Company Ltd. vs. Mohd. Nasir, and Ningamma
vs. United India Insurance Company Ltd.. As against the award passed
by the Tribunal even though the claimants have not filed any appeal, as it
is obligatory on the part of courts/the Tribunals to award just and
reasonable compensation, it is appropriate to increase the compensation"
Though in paragraph 14 of the above judgment the Supreme Court
clearly stated that the Supreme Court had exercised powers under
Article 142 of the Constitution enhanced the compensation to do
complete justice but the fact remains that principles of law laid down in
paragraph no.12 as quoted hereinabove is binding under Article 141 of
the Constitution.
28. Now let us take the judgment of the Supreme Court in the case of
Sanobanu Nazirbhai Mirza (supra) and more particularly to paragraphs
20 which is quoted hereinbelow :
"20. In view of the aforesaid decision of this Court, we are of the view
that the legal representatives of the deceased are entitled to the
compensation as mentioned under the various heads in the table as
provided above in this judgment even though certain claims were not
preferred by them as we are of the view that they are legally and
legitimately entitled for the said claims. Accordingly we award the
compensation, more than what was claimed by them as it is the statutory
duty of the Tribunal and the appellate court to award just and reasonable
compensation to the legal representatives of the deceased to mitigate their
Page No.# 31/37
hardship and agony as held by this Court in a catena of cases. Therefore,
this Court has awarded just and reasonable compensation in favour of
the appellants as they filed application claiming compensation under
Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts
and legal evidence on record and in the absence of rebuttal evidence
adduced by the respondent, we determine just and reasonable
compensation by awarding a total sum of Rs. 16,96,000/- with interest @
7.5% from the date of filing the claim petition till the date payment is
made to the appellants".
From the above, it would be seen that the Supreme Court had
awarded a higher compensation than claimed on the ground that it is a
statutory duty imposed upon the Tribunals and the appellate courts just
and reasonable compensation.
29. Thus from the above, it would be seen that while Order XLI Rule
33 CPC empowers the Appellate Court to pass appropriate orders to do
justice but subject to certain limitation as judicially formulated whereas
Section 168 imposes a statutory obligation upon the Tribunal as well as
the Appellate Court sans any appeal or cross-objection filed to award a
compensation which is just and reasonable. Accordingly, this Court
which is the Appellate Court is bound to maintain the balance while
exercising the powers of Order XLI Rule 33 of the CPC within the
limitations imposed and also keeping in mind the statutory duty
imposed upon it by Section 168 of the Act of 1988.
30. As would be seen from the judgment of Banarsi (supra), that such
part of the decree which eventually ought to have been appealed against
or objected to by a party and which that party has permitted to achieve
Page No.# 32/37
a finality cannot be reversed to the advantage of such party, the power
under Order XLI Rule 33 of the CPC cannot be exercised. In the said
backdrop let this Court now consider the impugned award and the
compensation so awarded. The learned Tribunal vide the impugned
award adjudged Rs.10,891/- as the monthly salary and applied the
multiplier of 18 and arrived at Rs.23,52,456/- under the head of loss of
dependency. Further to that an amount of Rs.10,000/- has been added
without however any reasons on account of medical expenses, funeral
expenses, loss of consortium, loss of estate and thus arrived at the total
compensation of Rs.23,62,456/-. At this stage, it may be relevant to
take into consideration the judgment of the Constitution Bench of the
Supreme Court in the case of National Insurance Company Limited vs.
Pranay Sethi and Others, reported in (2017) 16 SCC 680 wherein at
paragraph 59 of the said judgment the Supreme Court recorded its
conclusion and for the sake of convenience, the said paragraph 59 and
its sub-paragraph are quoted hereinbelow :
"59. In view of the aforesaid analysis, we proceed to record our
conclusions:-
59.1 The two-Judge Bench in Santosh Devi should have been well
advised to refer the matter to a larger Bench as it was taking a different
view than what has been stated in Sarla Verma, a judgment by a
coordinate Bench. It is because a coordinate Bench of the same strength
cannot take a contrary view than what has been held by another
coordinate Bench.
59.2 As Rajesh has not taken note of the decision in Reshma Kumari,
which was delivered at earlier point of time, the decision in Rajesh is not
a binding precedent.
59.3 While determining the income, an addition of 50% of actual salary to
the income of the deceased towards future prospects, where the deceased
had a permanent job and was below the age of 40 years, should be
made. The addition should be 30%, if the age of the deceased was
Page No.# 33/37
between 40 to 50 years. In case the deceased was between the age of 50
to 60 years, the addition should be 15%. Actual salary should be read as
actual salary less tax.
59.4 In case the deceased was self-employed or on a fixed salary, an
addition of 40% of the established income should be the warrant where
the deceased was below the age of 40 years. An addition of 25% where
the deceased was between the age of 40 to 50 years and 10% where the
deceased was between the age of 50 to 60 years should be regarded as
the necessary method of computation. The established income means the
income minus the tax component.
59.5 For determination of the multiplicand, the deduction for personal
and living expenses, the tribunals and the courts shall be guided by
paragraphs 30 to 32 of Sarla Verma which we have reproduced
hereinbefore.
59.6 The selection of multiplier shall be as indicated in the Table in Sarla
Verma read with paragraph 42 of that judgment.
59.7 The age of the deceased should be the basis for applying the
multiplier.
59.8 Reasonable figures on conventional heads, namely, loss of estate,
loss of consortium and funeral expenses should be Rs. 15,000/-, Rs.
40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should
be enhanced at the rate of 10% in every three years."
31. It is also relevant to take into consideration the judgment of the
Supreme Court in the case of Sarla Verma and Others vs. Delhi
Transport Corporation and Another reported in (2009) 6 SCC 121 wherein
at paragraph no.30, the Supreme Court observed that when the
deceased is married, the deduction towards personal and living
expenses of the deceased should be one third (1/3), where the member
of dependent family members is 2 to 3, one fourth (1/4) and so on.
Further to that at paragraph 42 of the said judgment, the Supreme
Court held that multiplier 17 should be applied if the deceased was of
the age between 26 to 30. In the instant case, the deceased as per the
Page No.# 34/37
statement of claim was of the age of 26 years 24 days as on the date of
his death and consequently the multiplier to be applied ought to be 17
and not 18 as was done by the Tribunal below.
32. Another judgment of the Supreme Court which also requires to be
taken into consideration in view of the development of the concept of
loss of consortium is the judgment rendered in the case of Magma
General Insurance Company Limited (supra) wherein the Supreme Court
enlarged the scope of loss of consortium to not only include spousal
consortium but also parental consortium and paragraph 21 to 21 of the
said judgment being relevant is quoted hereinbelow :
"21. A Constitution Bench of this Court in Pranay Sethi dealt with the
various heads under which compensation is to be awarded in a death
case. One of these heads is loss of consortium. In legal parlance,
"consortium" is a compendious term which encompasses `spousal
consortium', `parental consortium', and `filial consortium'. The right to
consortium would include the company, care, help, comfort, guidance,
solace and affection of the deceased, which is a loss to his family. With
respect to a spouse, it would include sexual relations with the deceased
spouse.
21.1. Spousal consortium is generally defined as rights pertaining to the
relationship of a husband-wife which allows compensation to the
surviving spouse for loss of "company, society, co-operation, affection,
and aid of the other in every conjugal relation"
21.2 Parental consortium is granted to the child upon the premature
death of a parent, for loss of "parental aid, protection, affection, society,
discipline, guidance and training."
21.3 Filial consortium is the right of the parents to compensation in the
case of an accidental death of a child. An accident leading to the death of
a child causes great shock and agony to the parents and family of the
deceased. The greatest agony for a parent is to lose their child during
Page No.# 35/37
their lifetime. Children are valued for their love, affection, companionship
and their role in the family unit.
22. Consortium is a special prism reflecting changing norms about the
status and worth of actual relationships. Modern jurisdictions world-over
have recognized that the value of a child's consortium far exceeds the
economic value of the compensation awarded in the case of the death of a
child. Most jurisdictions therefore permit parents to be awarded
compensation under loss of consortium on the death of a child. The
amount awarded to the parents is a compensation for loss of the love,
affection, care and companionship of the deceased child.
23. The Motor Vehicles Act is a beneficial legislation aimed at providing
relief to the victims or their families, in cases of genuine claims. In case
where a parent has lost their minor child, or unmarried son or daughter,
the parents are entitled to be awarded loss of consortium under the head
of Filial Consortium. Parental Consortium is awarded to children who lose
their parents in motor vehicle accidents under the Act. A few High Courts
have awarded compensation on this count. However, there was no clarity
with respect to the principles on which compensation could be awarded
on loss of Filial Consortium".
33. From the impugned award it would be apparent that Rs.10,891/-
has been adjudged as the monthly salary though the claimants claim a
higher amount, but in absence of an appeal or cross-objection, the same
cannot be increased. The Tribunal applied the multiplier of 18 however
in view of the Supreme Court judgment in Sarla Verma (Supra) and the
challenge made to the wrong application of the multiplier and
admittedly as the deceased at the time of his death fell in to the bracket
of 26 - 30 years, the correct multiplier to be applied would be 17. Apart
from the above, the impugned award does not take into consideration
that on account of two dependent, i.e. the wife and the child, 1/3 rd of
the amount has to be deducted on account of personal expenses. The
Page No.# 36/37
impugned award also does not take into consideration the loss on
account of future prospects and the medical expenses. The conventional
heads of loss of consortium, loss of estate as well as funeral expenses
have been arbitrarily adjudged @ Rs.10,000/- without any basis which
violates the mandate of Section 168 of the Act of 1988.
34. Accordingly this Court in exercise of the powers under Order XLI
Rule 33 of the CPC modified the Award as hereinunder :
1. Loss of Dependency Rs. 10,891/- (monthly salary)
+Rs. 5,446/- ( future prospects)
Rs. 16,337/-
X 12
Rs.1,96,044/-
-Rs. 65,348/- (1/3rd deduction on account of
Rs. 1,30,696/- personal expenses)
X 17 (multiplier 17 applied as the
Rs.22,21,832/- deceased was 26 years 24
days on the date of his death)
2. Loss of spousal consortium Rs. 44,000/-
3. Loss of parental consortium Rs. 44,000/-
4. Funeral Expenses Rs. 16,500/-
5. Loss of estate Rs. 16,500/-
6. Medical expenses as Rs. 41,568/-
as stood proved on the
basis of the exhibits ______________
Rs.23,84,400/-
35. As the point of determination no.1 has been held in favour of the
appellant and thereby holding that the Respondent No.3 shall be liable
for the payment of the entire compensation, the amount so deposited by
the appellant before this Court the same shall be refunded to the
appellant by the Registry. The statutory deposit of Rs.25,000/- shall
Page No.# 37/37
also be returned to the appellant.
36. The Respondent No.3 is directed to deposit the entire
compensation as per the modified award as mentioned in paragraph 34
herein above along with interest @ 6% p.a. from the date of filing of the
claim petition after adjusting the amount already deposited within a
period of 6 (six) weeks from the date of the instant judgment.
37. The appeal accordingly stands allowed with the above observations
and directions. No costs.
JUDGE
Comparing Assistant
