Jharkhand High Court
Sulochana Devi vs Binod Kumar Sahu on 2 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc. Appeal No. 20 of 2010
1. Sulochana Devi
2. Priyanka Kumari
3. Rajeev Kumar
4. Rakhi Kumari
5. Harendra Kumar @ Bittu Kumar .... .... Appellant
Versus
Binod Kumar Sahu .... .... Respondents
With
Cross Objection No. 03 of 2014
Binod Kumar Sahu .... .... Appellant
Versus
2. Sulochana Devi
3. Priyanka Kumari
4. Rajeev Kumar
5. Rakhi Kumari
6. Harendra Kumar @ Bittu Kumar
.... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellants : Mr. Srijit Choudhary, P.P. Chatterjee,
Chandra Shekhar Singh, Advocate (C.O. No.03/14)
: Mr. Ajay Kumar Singh, Advocate (M.A.No. 20/10)
For the Respondents : Mr. Ajay Kumar Singh, Advocate (C.O. No.03/14)
Mr. Srijit Choudhary, P.P. Chatterjee,
Chandra Shekhar Singh, Advocate (M.A.No. 20/10)
C.A.V. ON 23.11.2021 PRONOUNCED ON 02 / 12 / 2021
1) The instant miscellaneous appeal has been filed by the
claimants for enhancement of compensation awarded in Motor Vehicle
Accident Case No. 77/2008 under Section 166 of the Motor Vehicles Act,
1988. Compensation has been awarded against the owner of the vehicle
who was impleaded as the sole defendant/respondent as he did not appear
and consequently an ex-parte proceeding was drawn against him.
2) The appeal has been preferred mainly on the ground that the
income of the deceased has been calculated to be only Rs.2000/- on the
reasoning that the widow of the deceased was still running the general
store of the deceased where from she was having an income of Rs.4000/-.
The income of the deceased was claimed to be Rs.6000/- and, therefore,
after his death Rs.2000/- loss of monthly income was accepted by the
Tribunal. As per the age of the deceased multiplier of 15 should be
applicable for determination of the quantum of compensation. The future
prospect has also not been factored in calculating the final compensation
amount and the interest has been not awarded as per the ratio decided in
Pranay Sethi case.
3) As per the case of the plaintiff, the deceased was running a
general store near his residence with a monthly income of Rs.6000/- and
his widow Claimant No.1 deposed before the court that at present she was
running the shop from which she had a monthly income of Rs.4000/-.
Under the circumstance, accepting Rs.2000/- per month as the loss of
income on account of the death of the deceased in the motor vehicle
accident cannot be questioned. In this view of matter, the family suffered a
loss in income of Rs.2000/- per month on account of death of Krityanand
Prasad. It would be not be just and fair to further deduct any amount as the
personal living expense of the deceased as his total monthly income is not
being reckoned with in computation of compensation ,but the financial
loss that resulted on account of his death. Principle of deduction of
personal living expense from the total income is to calculate the sum that
the deceased spent from his income on the dependent family. Here in view
of the evidence that even after the death the grocery shop was being run
albeit on a reduced income, therefore only the loss of income that resulted
on account of the death is being factored.
Taking Rs.2000/- as the loss of dependency and a multiplier of
14 applicable to his age of 45 as per the ratio decided in Sarla Verma
case the compensation amount will work out to Rs.2000 x
14=Rs.2,80,000/-.
Considering the age of the deceased and the nature of his
occupation, 25% enhancement of income under the head of future
prospect shall be applicable in view of the ratio decided in Pranay Sethi
case which will work out to Rs.70,000/-.
The claimants shall also be entitled to Rs.77,000/- under the
conventional head for loss of estate, consortium and funeral expensed.
The final compensation shall work out to Rs.2,80,000 + Rs.
70,000 + Rs.77,000 = Rs.4,27,000/-
The claimants shall also be entitled to receive interest at the rate
of 7.5% from the date of application in view of the ratio decided in
Dharampal case.
4) The Cross Objection 3 of 2014 has been filed by Binod Kumar
Sahu the Respondent /Defendant against the ex-parte award on the
ground that the ex-parte proceeding was drawn against the appellant
without service of notice to him during the proceeding in Motor Accident
Claim Tribunal.
5) I am of the considered view that the cross objection filed on
behalf of the defendant respondent for setting aside of ex-parte of award is
not, at all, maintainable. The reason being that the remedy against an ex-
parte decree, is to move an application under Order 9 Rule 13 of C.P.C. in
the Court which passed the decree to set it aside or by an appeal under
Section 96 (2) C.P.C. When a particular remedy is provided for setting
aside an ex-parte decree any other special remedy against an order
refusing to set aside, these remedies alone, and none other, can be taken
resort to. Therefore, when these two remedies provided under the code of
civil procedure has not been availed of, it will not be open to the
respondent/defendant to file a cross-objection to set aside ex parte award.
Cross appeal is filed under Order 41 Rule 1 and Cross-
Objection is filed under Order 41 Rule 22 of C.P.C. The very object and
purpose of cross objection is to meet altogether different situation. This
provision is to enable respondent not only to support the decree but may
also take any cross objection to the decree which he could have taken in
appeal, provided that he has filed such objection in the appellate court
within one month from the date of service on him or his pleader of notice
of the day fixed for hearing the appeal, or within such further time as the
appellate court may set for it to allow. Here no petition for condonation of
delay has been filed as well and the cross-objection is ex-facie time
barred. The right of filing cross objection is further clarified in the
Explanation 2 Rule 22 of C.P.C. which provides that a respondent
aggrieved by a finding of the Court in the judgment may under this rule
file cross-objection, notwithstanding that by reason of the decision of the
court, this decree is wholly or in part in favour of that respondent.
Here in the instant case an ex-parte award has been pronounced
wholly against the respondent and there is no part of the award in favour
of the opposite party. Under the circumstance, when there was a specific
remedy under Order 9 Rule 13 and Section 96(2) of the C.P.C., it was not
open to the respondent to file cross-objection in the instant appeal after a
prolonged delay. Under the circumstance, the cross-objection is rejected
as not maintainable. Further, Cross-objections within the scheme of Order
41 Rule 22 of the Code are to be treated as separate appeal and must be
disposed of on same principles in accordance with the provisions of Order
41 of the Code. Thus even if it is treated as appeal under Section 96(2),
the ground of challenge shall be confined to the merit of the award and not
whether notices were received by him which is a permissible plea under
Order 9 R 13. Here the objection is taken on the ground that the notices
were not served on the party, such plea is not permissible in an appeal.
In the result, the misc. appeal is allowed as above and the cross-
objection is rejected as not maintainable.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 2nd December, 2021
NAFR / AKT
