Gujarat High Court
The Oriental Insurance Co.Ltd vs Meenaben Ramanikbhai on 7 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3301 of 2011
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THE ORIENTAL INSURANCE CO.LTD.
Versus
MEENABEN RAMANIKBHAI & ORS.
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Appearance:
MR RITURAJ M MEENA(3224) for the Appellant(s) No. 1
MR ANKUR Y OZA(2821) for the Defendant(s) No. 1,3,4,5
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 07/02/2025
ORAL ORDER
Being aggrieved with the judgment and award dated 13-7-2009
passed by the Motor Accident Claims Tribunal Junagadh in M.A.C.P.
No.492 of 1997, the appellant - insurance company has preferred this
appeal under Section 173 of the MV Act.
2. The short facts of the case are that while deceased was going on his
scooter No.GJ-3Q-9266 on Jetpur-Jungadh Road, at that time, driver of
Truck No.GJ-1B-6941 came with full speed rashly and negligently on
wrong side and dashed with the deceased who succumbed to the injuries.
Therefore, the applicants, being dependents of the deceased, have
preferred claim petition seeking compensation of Rs.7,45,000/- with
interest and costs.
3. The tribunal after considering the oral as well as documentary
evidence has held the opponents are jointly and severally liable to pay the
compensation and awarded a compensation of Rs.8,58,600/- with interest
at the rate of 9% P.A. from the date of filing of the petition till its
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realization which has given rise to this appeal.
4. Heard learned advocates appearing for the respective parties.
5. Learned advocate Mr.Meena for the insurance company would
make two fold submissions. Firstly, he would submit that tribunal has
wrongly assessed that the driver of the truck was fully negligent in
causing the road accident. He would submit that since the issue of
accident relates to head-on collusion, both the errant vehicles should be
equally held responsible. Secondly, he would submit that learned tribunal
has ignoring the evidence of income of the deceased taken higher side of
income and thereby erroneously come to the conclusion. He would
therefore submit that compensation would require to be recomputed.
5.1 By making above two submissions, learned Advocate Mr.Meena
would submit to allow this appeal and reduce the amount of
compensation granted by the learned tribunal.
6. Per contra, learned advocate Mr.Oza for the legal heirs of the
deceased claimant would fairly submit and accept that merely Rs.200/- to
Rs.300/- has been taken by the tribunal on higher side; however the
learned tribunal has wrongly applied the multiplier of 15 instead of 16
considering the age of deceased between 30 to 35 years. He would submit
that tribunal was so conservative in granting the compensation under the
head of loss of consortium as there are three members left in the family.
He would submit that the learned tribunal by taking hypothetical
approach granted very meager amount at Rs.15,000/- which is required to
be granted at Rs.48,400/- for each member as per decision in case of
National Insurance Company Ltd. v. Pranay Sethi & Ors., [(2017) 16
SCC 680]. He would further submit that learned tribunal has granted very
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lower amount of compensation under the other non-pecuniary heads and
therefore this Court may also enhance the same.
6.1 Mr.Oza, learned advocate for the org. claimant would further
submit that this is a case where the compensation awarded by the tribunal
is required to be enhanced by recalculating under the principle of just and
fair compensation. He would further submit that though the claimants
have not filed the cross objection or cross appeal for enhancement of the
claim amount, looking to the computation of the income and other heads
of granting compensation, this Court ought to have arrived at just, fair
and equitable compensation and award the same.
6.2 Upon above submissions, learned advocate Mr.Oza submitted to
dismiss the appeal however requested this Court to enhance the
compensation.
7. Having heard the learned advocates appearing for the parties and
given anxious consideration to the rival contentions and examined the
evidence on record, what could be noticeable that learned tribunal
decided two claim petition arising out of the self-same road accident
being MACP No.492 and 594 of 1997. The insurance company has raised
the contention that negligence not being properly assessed however has
not been challenged by filing appeal against MACP No.594 of 1997.
Thus, by not challenging the finding of negligence given by the learned
tribunal in MACP No.594 of 1997, it would operate as res judicata for
the other claim petition which would govern as finding rendered in other
claim petition arising out of the self-same accident. To be noted that
driver of the truck did not enter into the witness box and therefore the
finding arrived at by the learned tribunal in regards to negligence is just
and proper and no interference as warranted by learned advocate for the
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insurance company is required. Accordingly, it is rejected.
8. Insofar as the income part is concerned, the deceased at the time of
road accident was serving as teacher and his salary slip was produced at
Exh.32 which shows total salary is of Rs.4,570/- including all
emoluments and out of which Rs.200/- deducted for GPF and Rs.20/- for
professional tax. Thus, while maintaining deduction of professional tax,
net income of the deceased would be taken at Rs.4,500/- for deciding the
dependency loss. To be noted that, deceased was secularized person
having permanent employment, 50% should be taken prospective income
in view of Pranay Sethi (supra). As per the PM Note the age of the
deceased was between 30 to 35 years, the multiplier of 16 would be made
applicable and considering the number of dependent one-third amount
should be deducted towards the personal and pocket expenses.
Accordingly, the loss of dependency and future prospect would be
counted.
9. In United India Insurance Co. Ltd. vs Satinder Kaur @
Satwinder Kaur And Ors. [AIR 2020 SUPREME COURT 3076] the
Apex Court has recognized as to grant or approve the compensation for
loss of consortium to each member of the deceased. In the present case,
tribunal has granted Rs.15,000/- as global amount for loss consortium,
lost to estate and funeral and obsequies expenses. Here in the present
case, deceased was survived by his parents (mother is died); spouse and
two minor children. Due to death of deceased each of the family member
met with the loss and thus the loss of consortium for spousal, filial and
parental is required to be granted and it is according granted at
Rs.48,400/- each for family member of the deceased. The tribunal has
also not granted any separate amount for loss of estate and funeral
expenses which as per the decision in case of Pranay Sethi (supra) is
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granted at Rs.18,150/- each.
10. Another issue arises as to whether in absence of any cross-
objection or cross appeal on behalf of the claimant, whether in the appeal
filed by the insurance company the appellate Court can enhance the
compensation granted by the tribunal. O.41 R.33 of CPC r/w O.41 R.22
read with decision in case of Surekha W/o Rajendra Nakhate Versus
Santosh S/o Namdeo Jadhav [2021 (16) SCC 467] would rescue the
situation. Needless to say that principle of just and fair compensation
applies at every stage of proceedings. The duty is casted upon the Court
to assess, calculate and grant just and fair compensation at every stage
regardless of filing of appeal. Therefore, it is clear that even in absence of
cross-objection or cross appeal the appellate Court holds jurisdiction to
enhance the compensation.
11. At this juncture, let refer to the decision in case of Banarasi &
Ors. V. Ram Phal [2003 (9) SCC 606] where the Hon'ble Apex Court
while dealing with the scope of O.41 R.22 of the CPC post 1976
amendment and power of the appellate Court under O.41 R.33 of the CPC
has observed in paragraph 10 to 12 as under:
"10. 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
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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 Judgement 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 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
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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.
12. . The fact remains that to the extent to which the decree is against
the respondent and he wishes to get rid of it he should have either filed
an appeal of his own or taken cross objection failing which the decree
to that extent cannot be insisted on by the respondent for being
interfered, set aside or modified to his advantage. The law continues to
remain so post-1976 amendment. In a suit seeking specific performance
of the agreement to sell governed by the provisions of the Specific Relief
Act. 1963 the Court has a discretion to decree specific performance of
the agreement. The plaintiff may also claim compensation under Section
21 or any other relief to which he may be entitled including the refund
of money or deposit paid or made by him in case his claim for specific
performance is refused. No compensation or any other relief including
the relief of refund shall be granted by the Court unless it has been
specifically claimed in the plaint by the plaintiff. Certainly the relief of
specific performance is a larger relief-for the plaintiff and more
onerous to the defendant compared with the relief for compensation or
refund of money. The relief of compensation or refund of money is a
relief smaller than the relief of specific performance. A plaintiff who
files a suit for specific performance claiming compensation in lieu of or
in addition to the relief of specific performance or any other relief
including the refund of any money has a right to file an appeal against
the original decree if the relief of specific performance is refused and
other relief is granted. The plaintiff would be a person aggrieved by the
decree in spite of one of the alternative reliefs having been allowed to
him because what has been allowed to him is the smaller relief and the
larger relief has been denied to him. A defendant against whom a suit
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for specific performance has been decreed may file an appeal seeking
relief of specific performance being denied to the plaintiff and instead a
decree of smaller relief such as that of compensation or refund of money
or any other relief being granted to the plaintiff for the former is larger
relief and the latter is smaller relief. The defendant would be the person
aggrieved to that extent. It follows as a necessary corollary from the
above said statement of law that in an appeal filed by the defendant
laying challenge to the relief of compensation or refund of money or any
other relief while decree for specific performance was denied to the
plaintiff, the plaintiff as a respondent cannot seek the relief of specific
performance of contract or modification of the impugned decree except
by filing an appeal of his own or by taking cross objection. "
12. Thus, while supporting impugned judgment and decree the
respondent without preferring cross objection can challenge adverse
finding on particular issue.
13. In Kavita Balothiya vs. Santosh Kumar [2024 (0) ACJ 1639] the
Hon'ble Apex Court has held that no restriction upon the Court to award
compensation exceeding the amount claimed and it is the duty of the
tribunal or Court under Section 168 of the MV Act, to award just
compensation. Paragraph 5 and 6 thereof reads thus:
"5. Learned counsel for the appellants has brought to our notice
the decision of this Court in Mona Baghel &ors. vs. Sajjan Singh
Yadav & Ors. in (Civil Appeal @ out of SLP(C) NO.29207/2018
wherein the Court has observed as under:
"The law is well settled that in the matter of compensation,
the amount actually due and payable is to be awarded
despite the claimants having sought for a lesser amount and
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the claim petition being valued at a lesser value.
Our view, is fortified by the decision of this Court in the Case of
Ramla and Others Versus National Insurance Company Limited
and Others 2019 2 SCC 192, wherein, it is held as under:
"Though the claimants had claimed a total compensation of
Rs.25,00,000 in their claim petition filed before the
Tribunal, we feel that the compensation which the claimants
are entitled to is higher than the same as mentioned supra.
There is no restriction that the Court cannot award
compensation exceeding the claimed amount, since the
function of the Tribunal or Court under Section 168 of the
Motor Vehicles Act, 1988 is to award just compensation.
The Motor Vehicles Act is a beneficial and welfare
legislation. A just compensation is one which is reasonable
on the basis of evidence produced on record. It cannot be
said to have become time-barred. Further, there is no need
for a new cause of action to claim an enhanced amount. The
Courts are duty-bound to award just compensation. (See the
Judgments of this Court in (a) Nagappa v. Gurudayal Singh,
(b) Magma General Insurance Co. Ltd. v. Nanu Ram, (c)
Ibrahim v. Raju)"
6. The above decision clearly lays down that there is no restriction
upon the court to award compensation exceeding the amount
claimed. It is the duty of the Tribunal or Court under Section 168
of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act)
to award just compensation. Since the Act is a beneficial
legislation a just compensation is one which is fair and reasonable
on the basis of the evidence adduced irrespective of the amount
claimed."
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14. In Chandra Mani Nanda vs. Sarat Chandra Swain & Anr., [2024
INSC 777] the Hon'ble Apex Court has again reiterated the ratio that it is
the duty of the Court to assess the fair compensation and in paragraph 20
has held as under:
"20. An argument is raised by learned counsel for the insurance
company that the appellant has initially claimed a sum of
230,00,000/- and since the same having been awarded to him by
the High Court, no further enhancement is possible. We cannot
accept this argument and it is duly rejected. It is a settled
proportion of law, that the amount of compensation claimed is not
a bar for the Tribunal and the High Court to award more than
what is claimed, provided it is found to be just and reasonable. It is
the duty of the Court to assess fair compensation. Rough
calculation made by the claimant is not a bar or the upper limit.
Reference in this regard can be made to the judgment of this Court
in the case of Meena Devi vs. Nunu Chand Mahto".
14.1 Applying the ratio as stated herein above, there is no bar in
granting compensation to the claimant under the doctrine of just, fair and
equitable compensation even in absence of cross-objection seeking
enhancement of compensation. The Court cannot oblivious to its statutory
duty to assess the just and fair compensation which should be equitable
and adequate to meet with the pain of the victim of the road accident.
15. In view of the above and for the reasons recorded herein above, the
appeal filed by the insurance company is dismissed. However, as
discussed herein above, total compensation would be worked out as
under, which the claimant/s is/are entitled to get.
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Particulars Amount (Rs.)
Loss of Dependency: 8,64,000/-
(Rs.4,500/- Income (-) one-third towards personal
and pocket expenses (+) 50% future prospect (x) 12
(x) 16 (multiplier).
Loss of consortium (Rs.48,400/- x 3) 1,45,200/-
Loss of Estate & Funeral Expenses 36,300/-
(Rs.18,150/- each)
Total 10,45,500/-
Already awarded by the tribunal 8,58,600/-
Enhanced amount of compensation 1,86,900/-
16. In wake of above, I hold that all the opponents are jointly and
severally liable to pay the compensation to the claimants and claimants
are entitled to get the total amount of compensation of Rs.10,45,500/-
with 9% p.a. interest from the date of filing the claim petition till its
realisation, which would meet the ends of justice. Rest of the direction(s)
of the Tribunal remain same.
17. For the foregoing reasons, the appeal filed by the appellant -
insurance company is dismissed. The insurance company is held liable to
pay the compensation of enhanced amount of Rs.1,86,900/-with interest at
the rate of 9% from the date of filing of the petition till its realization. The
insurance company is directed to deposit the amount of compensation with
interest and costs within six weeks from today including the interest and
costs.
18. Upon such deposit, the Tribunal shall disburse the entire awarded
amount lying in the FDR and/or with the Tribunal, with accrued interest
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thereon, if any, to the claimants, by account payee cheque / NEFT /
RTGS, after proper verification and after following due procedure and as
per the apportionment fixed by the tribunal.
19. While making the payment, the Tribunal shall deduct the courts
fees, if not paid, in accordance with rules/law. If order of apportionment
is not made by the tribunal, it shall be made while disbursing the amount
of compensation.
20. Record and proceedings be sent back to the concerned Tribunal,
forthwith.
(J. C. DOSHI,J)
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