Lorin Gurung Widow Of Late Amber ... vs Sakhi Chand Mahto
2022 Latest Caselaw 1209 Jhar

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               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               M.A. No. 227 of 2016
                                         ----
     1. Lorin Gurung widow of late Amber Gurung
     2. Sheli Gurung D/o Late Amber Gurung
     3. Shristi Gurung D/o Late Amber Gurung
        All residents of Qr. No.90, Block No.5, J.A.P-1 Camp, At Doranda, P.O.
        & P.S. Doranda, Ranchi, Jharkhand.
                                        ...           ...           Appellants
                                     -versus-
     1. Sakhi Chand Mahto s/o Goverdhan Mahto, resident of Titi Chapri, P.O. &
     P.S. Govindpur, Dhanbad.
     2. United India Insurance C. Ltd., Katras Road At P.O. & P.S. Dhanbad
     3. Sudhir Bedia S/o Dular Bedia, resident of Village Jamuwa Bara, P.O. &
     P.S. Ramgarh, Dist. Hazaribagh.
     4. Administrator, Motor Vehicle Department J.A.P-1, at, P.O. & P.S.
     Doranda, Ranchi, Jharkhand.
     5. Saina Paswan S/o late Parmanand Paswan, resident of Bigha, P.O. &
     P.S. Barh, Patna.
                                                    ...           Respondents
                                         ----
                CORAM : HON'BLE MR. JUSTICE ANANDA SEN
                                         ----

        For the Appellants :  Mr. Rabi Narayan Mukherjee, Advocate
        For the Respondents : Mr. Sandip Kumar Burnwal, Advocate
                              Mr. Alok Lal, Advocate
                                     ----

                                      ORDER

RESERVED ON 23.03.2022 PRONOUNCED ON 28.03.2022

Both the interlocutory application (I.A. No.6919 of 2021) and the main appeal are being decided by this common order.

I.A. No.6919 of 2021

2. This interlocutory application being I.A. No. 6919 of 2021 has been filed by the respondent-Insurance Company under Order XLI Rule 27(1)(b) read with Section 151 of the Code of Civil Procedure.

3. Heard learned counsel for the parties on this interlocutory application.

4. By filing this interlocutory application, respondent-Insurance Company wants to bring on record, by way of additional evidence, a money receipt showing acknowledgement of payment of Rs.13,75,404/- as full and final settlement towards satisfaction of the award dated 25.02.2016 passed by the Presiding Officer, Motor Vehicle Accident Claims Tribunal, Ranchi in Compensation Case No.141 of 2008.

5. Counsel appearing on behalf of the Insurance Company submitted that once the claimants have received the awarded amount as full

and final settlement, they are estopped from filing/claiming/pursuing this appeal for enhancement of the compensation amount. He submits that this document is being brought on record by way of additional evidence as it is a subsequent development, which is necessary for purposes of this case. In support of his contention, he relies upon the judgments of the Hon'ble Supreme Court, in the case of (i) National Insurance Co. Ltd. versus NIPHA Exports (P) Ltd. reported in (2006) 8 SCC 156; (ii) United India Insurance Co. Ltd. versus Ajmer Singh Cotton Mills & Others reported in (1999) 6 SCC 400; and (iii) New India Assurance Company Ltd. versus Genus Power Infrastructure Limited reported in (2015) 2 SCC 424. By citing the said judgments of the Hon'ble Supreme Court, learned counsel for the respondent-Insurance Company submits that once a party agrees to accept the amount as full and final settlement, he is estopped from claiming any enhancement.

6. Learned counsel appearing for the appellants, challenging the aforesaid interlocutory application, submits that there is no bar in filing an appeal against the award if the quantum is not just. He submits that, merely, accepting the amount will not debar the appellant from exercising the statutory right to claim just compensation. Counsel for the appellant relies upon a judgment of the Hon'ble Supreme Court in the case of Meena Pawaia & Others versus Ashraf Ali & Others reported in 2021 SCC OnLine SC 1083. Counsel appearing for the appellants submits and admits that the aforesaid money receipt was granted by the appellants, but the same has got no relevance as in the ordersheet of the Tribunal, there was an endorsement that money is being accepted "without prejudice".

7. To decide this issue, first it has to be decided as to whether this application under Order XLI Rule 27 (1)(b) read with Section 151 of the Code of Civil Procedure should be allowed or not. Order XLI Rule 27 of the Code of Civil Procedure provides for production of additional evidence in the Appellate Court. Order XLI Rule 27 (1) provides for a situation when additional evidence can be produced before the Appellate Court, whereas Order XLI Rule 27(2) provides that the Court shall record a reason for admitting the document as additional evidence at the appellate stage.

8. From perusal of Order XLI Rule 27(1) of the Code of Civil Procedure it is apparent that in normal circumstances, at the appellate stage, parties to the appeal shall not be entitled to produce additional evidence, but, there is an exception, which is provided under Order XLI Rule 27 (1)(a), (aa),

(b) of the Code of Civil Procedure. For better appreciation, it is necessary to

quote Order XLI Rule 27 1(a), (aa), (b) of the Code of Civil Procedure, which reads as under:-

27. 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 (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 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

9. From the aforesaid provision of law, it is clear that admission of additional evidence at the appellate stage is not the rule but an exception.

10. In this case, the respondent-Insurance Company wants to bring on record a money receipt by way of additional evidence to show that the appellants have accepted the compensation amount as full and final settlement. This application has been filed by invoking Order XLI Rule 27(1)(b) of the Code of Civil Procedure. The provision of law provides that if the Appellate Court requires any document to be produced or any witness to be examined to enable the Court to pronounce the judgment, then such document can be accepted as additional evidence. In a recent judgment pronounced by the Hon'ble Supreme Court in the case of Sanjay Kumar Singh versus The State of Jharkhand in Civil Appeal No.1760 of 2022, order dated 10th March, 2022, the Hon'ble Supreme Court has held that :-

4. It is true 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 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be

permitted on record, such application may be allowed. Even one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. It is further observed that the true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.

11. Thus, from the aforesaid judgment, it is clear that true test is whether appellate court is able to pronounce the judgment on the materials before it without taking into consideration additional evidence sought to be adduced. Considering the aforesaid law laid down and on the facts of this case, I find that the aforesaid document has got no bearing in this appeal. Even without the said document, this appeal can be effectively disposed of. Be it noted that the fact that the claimants have received the money has not been disputed by the claimants. Thus, the only question is whether even after accepting the awarded compensation amount and giving an endorsement to the effect that the amount was received to the full and final settlement, the appellants can be estopped from claiming higher rate of compensation. This question can be answered without the aforesaid document also, when in fact the existence of the receipt of money has not been denied.

12. Thus, this Court is of the opinion that this application filed under Order XLI Rule 27(1)(b) is misconceived and is liable to be dismissed. So far as the issue as to whether the appellant is estopped from continuing with this appeal is concerned, the same will be decided while considering the main appeal. This interlocutory application (I.A. No. 6919 of 2021) is, accordingly, dismissed.

M.A. No.227 of 2016

13. This miscellaneous appeal is directed against the award dated 25.02.2016 passed by the Presiding Officer, Motor Vehicle Accident Claims Tribunal, Ranchi in Compensation Case No.141 of 2008. This appeal is by the claimants praying for enhancement of the amount of compensation.

14. Counsel appearing for the respondent Insurance Company takes a preliminary objection that the appellants have received the compensation amount as full and final settlement and, thus, they are estopped from pursuing this appeal. Counsel for the respondents relies upon the judgments of the Hon'ble Supreme Court in the case of (i) National Insurance Co. Ltd. versus NIPHA Exports (P) Ltd. reported in (2006) 8 SCC 156; (ii) United India Insurance Co. Ltd. versus Ajmer Singh Cotton Mills & Others reported in (1999) 6 SCC 400; and (iii) New India Assurance Company Ltd. versus Genus Power Infrastructure Limited reported in (2015) 2 SCC 424.

15. Counsel for the appellants counters the preliminary objection and submits that there is no bar in claiming just compensation.

16. Counsel appearing on behalf the appellants argues that the quantum of compensation has not been properly assessed. He submits that the future income and the prospect of growth of the deceased has not been considered by the Tribunal. It is his contention that the colleagues of the deceased have now been promoted and are getting lucrative salary and if the deceased would have been in service, he also would have been promoted and could have earned much more. Thus, according to him, the salary which the colleagues of the deceased are receiving now, should be the basis for assessing the income of the deceased for the purpose of assessment of compensation. He further submits that dependency has been wrongly assessed by the Tribunal and the rate of interest is on much lower side.

17. Counsel appearing on behalf of the respondent-Insurance Company submits that the deceased died in the year 2002. He was a member of Jharkhand Armed Police as constable. He submits that salary slip of the deceased was duly exhibited and the Tribunal considered the said salary slip and assessed the compensation and had also taken into account the future prospect. He submits that in view of the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited versus Pranay Sethi & Others reported in (2017) 16 SCC 680 all the issues raised by the claimant-appellants have been addressed and there is no scope for any enhancement.

18. Before entering into the issue of quantum of compensation, it is necessary to decide the preliminary objection which has been raised by the respondent-Insurance Company.

19. It is the case of the Insurance Company that the claimants have received the awarded amount of compensation as full and final settlement and have issued money receipt in acknowledgement of receiving. Counsel for the

Insurance Company submitted that by virtue of the judgments of the Hon'ble Supreme Court, as cited by him, this appeal is not maintainable as the claimants are estopped from making any further claim. Counsel appearing on behalf of the appellants admitted execution of the said document, i.e., money receipt, but submits that in the margin of the ordersheet noted that the appellant has received the money without prejudice to their rights and claims.

20. Order sheet dated 26.05.2016 in Compensation Case No.141 of 2008 suggests that the claimants have received this amount without prejudice to their rights and claim. The amount was paid by the Insurance Company to the claimants on 26.05.2016 vide cheque No.006000 dated 17.05.2016. It is pertinent to take note that this appeal for enhancement was filed by the claimants on 11.05.2016. This means that the appellants had already exercised their right claiming for enhancement of the compensation amount prior to receipt of the aforesaid cheque. Thus, it is not a case where the claimants have filed an appeal praying for enhancement of the compensation amount after receiving the compensation amount as full and final settlement.

21. The respondent-Insurance Company has referred to three judgments of the Hon'ble Supreme Court.

In the case of NIPHA Exports (P) Ltd. (supra) the dispute arose out of the Consumer Protection Act, 1985. In the said case, the payment was made on 08.06.1994, which the recipient acknowledged by giving clean discharge, and after receiving the said amount, in fact after lapse of two months some dispute was raised. Further, the fact of that case cannot be equated with the facts of this case as some interest was demanded and the Hon'ble Supreme Court held that there was no delay in making payment, so interest was not allowed. Another judgment, which the Insurance Company has relied is in the case of Ajmer Singh Cotton Mills (supra). The said judgment also does not help the Insurance Company. In the aforesaid judgment, the Hon'ble Supreme Court had pointed out that mere execution of discharge voucher would not always deprive the consumer from preferring claim with respect to deficiency in service and consequential benefits arising out of amount paid in default of services rendered. It was also held that despite execution of discharge voucher, the consumer may be in a position to satisfy the Tribunal or Commission under the Act that discharge voucher or receipt has been obtained from him under circumstances which can be termed as fraudulent exercise or by undue influence or misrepresentation. Further, the judgment of the Hon'ble Supreme Court in the case of Genus Power Infrastructure Limited (supra) cannot be applied in the facts of this case as

the same arises out of an arbitration proceeding where after receipt of amount as full and final settlement, arbitration proceeding was initiated.

In this instant case the appellants are claiming enhancement of compensation when this appeal has been filed earlier to receipt of the amount of compensation. Furthermore, the instant case, which I am dealing with, is under the Motor Vehicles Act. Further, in terms of Section 168 of the Motor Vehicles Act, 1988, it is the duty of the Tribunal to make an award determining the amount of compensation which appears to be just [emphasis supplied].

Thus, from the aforesaid provisions of law, claimants are entitled to receive just compensation. When the statute provides and gives a right to claimants to claim just compensation, claimants cannot be estopped from claiming higher compensation if the compensation so paid, is not just. Be it noted that the Hon'ble Supreme Court in the case of Andhra Pradesh State Road Transport Corporation represented by its General Manager & Another versus M. Ramadevi & Others reported in (2008) 3 SCC 379 has held that there is no embargo imposed by the legislature on the Tribunal to grant compensation over and above the amount claimed by the parties in a given case. It is the Tribunal, who has to assess the "just amount" of compensation payable to the claimants. The Hon'ble Supreme Court in the case of Meena Pawaia (supra) in paragraph 15 has held that the claimants are entitled to just compensation and merely because in the execution proceeding they may have accepted the amount, as awarded by the High Court, by way of full and final settlement, will not take away the right of claimants to claim just compensation. It is necessary to quote paragraph 15 of the said judgment in the case of Meena Pawaia (supra), which reads as under: -

15. Now so far as the submission on behalf of the Union of India that as in the execution proceedings the claimants accepted the amount due and payable under the impugned judgment and order and accepted the same as full and final settlement, thereafter the claimants ought not to have preferred appeal for enhancement of the compensation is concerned, the aforesaid cannot be accepted. The claimants are entitled to just compensation. Merely because in the execution proceedings they might have accepted the amount as awarded by the High Court, may be as full and final settlement, it shall not take away the right of the claimants to claim just compensation and shall not preclude them from claiming the enhanced amount of compensation which they as such are held to be entitled to. As such, the Motor Vehicles Act is a benevolent Act and as observed hereinabove the claimants are entitled to just

compensation. As such, the Union of India ought not to have taken such a plea/defence.

22. Thus, the judgment of the Hon'ble Supreme court in the case of Meena Pawaia (supra) answers the issue. It is, thus, held that even if for the sake of argument the claimants have accepted the amount as full and final settlement, they are not estopped from pursuing this appeal and this appeal is maintainable.

23. Now the only question, which remains to be decided in this appeal is as to whether quantum of compensation has been decided properly or not.

24. In this appeal, appellants have challenged the quantum and the grounds and contentions of the appellants have already been mentioned in paragraph 16 hereinbefore. The deceased was the husband of appellant No.1, who died in a road accident. The manner of accident is not disputed, nor it has been disputed that the offending vehicle was insured with the respondent- Insurance Company. It is also undisputed that there was no violation of the conditions of the policy. The age of the deceased, income and the applicable multiplier is also not in dispute. The only ground is award of "future prospect". It is the case of the appellant that the colleagues, who were working with the deceased, now have been promoted and they are getting handsome salary, thus, while assessing the compensation, the salary, which the colleagues of the deceased are drawing has to be considered. This theory which the learned counsel for the appellants is propounding is unknown to law and cannot be accepted. The Hon'ble Supreme Court in the case of Pranay Sethi (supra) has decided as to how the compensation has to be determined. In the aforesaid judgment, compensation on account of future prospect has also been taken note of and it has been held that where the deceased is permanent salaried employee and is aged less than 40 years, 50% enhancement has to be granted on account of future prospects. In this instant case, admittedly, the deceased was aged about 37 years at the time of his death. As per Exhibit 3, which is a pay slip of the deceased for the month of October, 2002, the salary of the deceased was Rs.7,028/- per month. The Tribunal, considering the aforesaid document held the income to be the same, which was reflected in the pay slip. Thereafter, the Tribunal awarded an additional 50% over and above the actual salary, which is evident from paragraph 13 of the impugned judgment. This clearly suggests that the principle which has been laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra) in relation to future prospect has been followed by the Tribunal. Multiplier has also been properly applied. The deceased had three

dependents, thus, the Tribunal has correctly deducted 1/3rd as personal expenses of the deceased. No fault can be found in the aforesaid assessment made by the Tribunal. So far as compensation under conventional head is concerned, I find that only Rs.25,000/- has been awarded. The Hon'ble Supreme Court in the case of Pranay Sethi (supra) has held that Rs.70,000/- has to be awarded under the conventional head. Thus, the Tribunal has awarded Rs.45,000/- less under the conventional head which the claimants are entitled to receive.

25. The Tribunal has granted 7% interest from the date of admission of the compensation case. In terms of Section 171 of the Motor Vehicles Act, the discretion is vested upon the Tribunal to grant interest at a rate the Tribunal so pleases and also from a particular date, but, such date should not be prior to the date of filing of the claim application. The claimants claim that the interest should be granted from the date of filing of the case, which the counsel for the Insurance Company opposes on the ground that the claimants were not diligent in pursuing their case. To verify this, I have gone through the ordersheet of the compensation case. The claim application was filed on 03.12.2008, but, the Court Fee for considering the application under Section 166 of the Motor Vehicles Act was not deposited. Further, the claimants were directed to take fresh steps for service of notice upon the opposite parties, but the claimants did not comply the aforesaid order. The ordersheet suggests that on several dates time was granted to the claimants to comply the directions of the Tribunal, but the said directions were not complied with by the appellants. The ordersheet also suggests that the application filed under Section 140 of the Motor Vehicles Act was allowed on 03.05.2013 and the Deficit Court Fee was deposited on 09.12.2013. Thereafter the application under Section 166 of the Motor Vehicles Act was admitted on 05.03.2014. The Tribunal has awarded interest at the rate of 7% per annum from the date of admission of application under Section 166 of the Motor Vehicles Act. I find no fault in awarding such interest from the date of admission of the application under Section 166 of the Motor Vehicles Act. The discretion so exercised by the Tribunal cannot be said to be arbitrary or malafide nor it is against the provisions of law. When the discretion so exercised cannot be said to be arbitrary or malafide, it would not be proper to interfere with the said discretion, which has been exercised by the Tribunal. The rate of interest, which has been awarded is 7%, which cannot be said to be on the lower side.

26. Thus, from what has been held above, I find that the appellants are entitled only to receive an additional sum of Rs.45,000/- over and above

the awarded amount. There is no scope of any further enhancement as the rest of the assessment is proper and is in consonance with the judgment of the Hon'ble Supreme Court in the case of Pranay Sethi (supra).

27. This appeal is, accordingly, partly allowed to the aforesaid extent only.

(Ananda Sen, J.) Kumar/Cp-02