The Divisional vs Iswaramma And Anr
2022 Latest Caselaw 1492 Kant

                                 1


          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

      DATED THIS THE 2ND DAY OF FEBRUARY-2022

                         PRESENT

     THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

                            AND

      THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA

             MFA NO.202311/2017 (MV)

BETWEEN:

The Divisional Controller,
NEKRTC, Bus Depot, Yadgir,
Rep. by its Chief Law Officer.
                                                ... Appellant

(By Smt. Ratna N. Shivayogimath, Advocate)

AND:

1.     Ishwaramma W/o Late Sadanand,
       Aged about 47 years, Occ: HH work.

2.     Mahesh S/o Late Sadanand,
       Aged about 25 years, Occ: Nil,
       Both are R/o H.No.1-50,
       Minaspur village,
       Tq. & Dist: Yadgir-585201.
                                             ... Respondents

(By Sri. Veeranagouda Malipatil, Advocate)
                               2


      This Miscellaneous First Appeal is filed under Section
173 (1) of the Motor Vehicles Act, praying to set aside the
judgment and award dated 31.08.2016 passed by the
Senior Civil Judge and Addl. MACT, Yadgir, in MVC
No.199/2016, by rejecting the claim of the respondents
against the Corporation.

      This appeal coming on for Final Hearing this day,
K.S. Hemalekha J., delivered the following:

                        JUDGMENT

The North East Karnataka Road Transport

Corporation (for short 'NEKRTC') has preferred this appeal

under Section 173(1) of the Motor Vehicles Act, 1988 (for

short 'M.V. Act'), assailing the judgment and award dated

31.08.2016 passed in MVC No.199/2016 by the Senior

Civil Judge and Addl. MACT, Yadgir (for short 'the

Tribunal'), challenging the liability as well as the quantum

of compensation awarded by the Tribunal.

2. The claimants filed a petition before the

Tribunal under Section 166 of the M.V. Act, seeking

compensation of Rs.75,50,000/- on account of death of

one Sadanand S/o Shankrappa, who died in a fatal road

traffic accident, contending that on 16.07.2016 at about

8.30 p.m. on Gurumitkal- Sedam main road, when the

deceased was proceeding on motorcycle bearing

Reg.No.KA-33-H-7333 from Itkal village to Gurumitkal, the

NEKRTC bus bearing Reg.No.KA-33-F-1059 came from

opposite direction in a rash and negligent manner and

dashed the motorcycle, resulting in the death of Sadanand.

The deceased was hale and healthy at the time of accident

and was aged about 53 years and was working as a

Assistant Teacher in MPS Chandiriki, Gurumitkal Limits,

State Government undertaking and was earning a gross

salary of Rs.29,700/- per month. The deceased was the

sole breadwinner of the family and the claimants were

solely dependent on the deceased. The claimants are the

wife and son of the deceased.

3. In pursuance of the notice by the Tribunal,

respondent No.1-driver of the NEKRTC bus has not

appeared and hence, placed ex-parte. Respondent No.2-

NEKRTC has appeared and filed objections denying that

the accident occurred due to the rash and negligent driving

on the part of the driver of the NEKRTC bus and contended

that the deceased was not possessing valid driving licence

as on the date of the accident.

4. On the basis of the pleadings of the parties,

the Tribunal framed the following:

ISSUES

1. Whether the petitioners prove that, on 16.07.2016 at 8.30 P.M. on Gurumitkal-Sedam main road, near Itkal Cross, deceased Sadanand along with another were proceeding on motor cycle No.KA-33-H-7333 on extreme left side of the main road, at that time NEKRTC Bus No.KA-33-F- 1059 came from opposite direction driven by its driver with high speed in rash and negligent manner and dashed to motor cycle and caused accident and as a result of that, he was sustained grievous injuries and died on the spot itself?

2. Whether the petitioners are entitled for the compensation? If so, to what rate and against whom?

3. What order or award?

5. In order to substantiate their case, claimant

No.1-wife of the deceased examined herself as PW.1 and

got marked 9 documents at Exs.P1 to P9. On the other

hand, respondent No.1 examined as RW.1 and no

documents were marked.

6. The Tribunal, on the basis of the pleadings,

evidence and material on record has held that the accident

occurred due to the rash and negligent driving of the driver

of the NEKRTC bus and fastened the liability on the

NEKRTC and calculated the total compensation at

Rs.27,49,000/- under the following heads:

1. Towards loss of dependency Rs.26,13,600/-

2. Towards loss of consortium Rs.1,00,000/-

to the wife

3. Towards loss of love and Rs.50,000/-

affection

4. Towards conveyance charges Rs.10,000/-

5. Towards funeral expenses Rs.25,000/-

Total Rs.27,98,600/-

Out of which, the Tribunal has deducted a sum of

Rs.50,000/- already paid by the NEKRTC and thus,

awarded a sum of Rs.27,49,000/- with interest at the rate

of 6% per annum from the date of petition till realization.

7. Being aggrieved by the liability fastened and

the quantum of compensation awarded by the Tribunal,

the NEKRTC has preferred the present appeal.

8. Heard the learned counsel for the appellant-

NEKRTC and the learned counsel for the

respondents/claimants.

9. Smt. Ratna N. Shivayogimath, learned counsel

for the appellant-NEKRTC would contend that there is

contributory negligence on the part of the rider of the

motorbike one Mahadevappa, who was suspected to be

intoxicated and thus, contended that the accident occurred

due to the rash and negligent riding of the said

Mahadevappa and would contend that the liability fastened

entirely upon the appellant needs to be absolved. Insofar

as the quantum of compensation is concerned, it is

contended that the compensation awarded by the Tribunal

is on the higher side.

10. Per contra, Sri. Veeranagouda Malipatil,

learned counsel for the respondents/claimants would

justify the judgment and award of the Tribunal insofar as

liability being fastened on the NEKRTC and insofar as the

quantum of compensation is concerned, he would contend

that it needs to be reassessed, rather enhanced, though no

appeal is preferred by the claimants.

11. Having heard the learned counsel for the

parties and having perused the records, the following

points would arise for consideration in this appeal:

i) Whether the judgment and award passed by the Tribunal requires any interference insofar as liability is concerned?

ii) Whether this Court, exercising the power under Order XLI Rule 33 of CPC can enhance the compensation even though no appeal is preferred by the claimants?

12. A perusal of IMV report-Ex.P4 and Spot

Panchanama-Ex.P6 and the fact that the driver of the

offending NEKRTC bus bearing Reg.No.KA-33-F-1059 being

charge sheeted for the offences punishable under Sections

279, 304-A and 338 of IPC R/w Section 187 of M.V. Act

would clearly establish that the accident occurred solely

due to the negligence on the part of the driver of the

offending bus bearing Reg. No.KA-33-F-1059. The

contention of the learned counsel for the appellant that the

rider of the motorcycle was under in an intoxicated

condition at the time of riding the vehicle is not established

by the NEKRTC. The NEKRTC has not made any efforts to

prove the aspect that the rider of the motorcycle

Mahadevappa was intoxicated at the time of accident,

whereas the evidence and material on record clearly

establish the fact that the accident occurred solely due to

the rash and negligent driving of the driver of the NEKRTC

bus. Thus, we are of the considered view that the

judgment and award passed by the Tribunal insofar as

fastening the liability on the NEKRTC is just and proper and

does not call for any interference by this Court.

Accordingly, we answer point No.1 in the negative.

Point No.2:

13. Insofar as quantum of compensation is

concerned, the respondents/claimants have not preferred

any appeal or cross objection seeking enhancement of

compensation. However, by exercising the power under

Order XLI Rule 33 of CPC, this Court can enhance the

compensation. Order XLI Rule 33 of CPC reads as under:

"33. Power of court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit,

be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order."

14. The Hon'ble Apex Court in the case of Panna

Lal v. State of Bombay [AIR 1963 SC 1516 : (1964) 1

SCR 980] sets out the scope of Order XLI Rule 33 as

under:

"The wide wording or Order 41 rule 33 was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as 'the case may require'. If there was no impediment in law the High Court in

appeal could, therefore, though allowing the appeal of the defendant-appellant by dismissing the plaintiff's suits against it, give the plaintiff-respondent a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the Illustration puts the position beyond argument.

The suit was filed by the plaintiff impleading the State Government and the Deputy Commissioner seeking recovery of compensation for the work done under a contract and the price of the goods supplied. The trial court held that the State was liable as it had beyond doubt benefited by the performance of the plaintiff. The suit was decreed against the State. The State preferred an appeal in the High Court. The plaintiff and other defendants including the Deputy Commissioner were impleaded as respondents. Disagreeing with the trial court, the High Court held that the contract entered into by the Deputy Commissioner was not binding on the State Government; that the Deputy Commissioner signed the contract at

his own discretion; and further, that the contract not having been entered into in the form as required under Section 175(3) of the Government of India, Act, 1935, was not enforceable against the State Government. The High Court also held that the Government could not be held to have ratified the action of the contract entered into by the Deputy Commissioner. The State was held also not to have benefited by the performance of the plaintiff. On this finding, the High Court set aside the trial court's decree passed against the State Government. In an appeal to this Court, the Constitution Bench held that it was a fit case for the exercise of jurisdiction under Order 41 Rule 33 CPC. On the findings arrived at by the High Court, while setting aside the decree against the State, the High Court should have passed a decree against the Deputy Commissioner. It was not necessary for the plaintiff to have filed any cross- objection and the Illustration appended to Order 41 Rule 33 was enough to find solution."

15. Following the judgment of the Hon'ble Apex

Court in Panna Lal's case supra, the Co-ordinate Bench of

this Court by exercising the power under Order XLI Rule 33

of CPC has enhanced the compensation in an appeal filed

by the insurance company, in the absence of appeal of the

claimant, in the case of Oriental Insurance Company

Limited V/s Akkayamma reported in ILR 2009 Kar 24.

The relevant portion of the said judgment is extracted

hereunder:

9. The Learned Counsel appearing for the respondent Nos.1 to 6 who are the claimants in the court below contended that though the claimants have not filed any cross objections or independent appeal, since the tribunal has committed serious error of law and procedure, while computing the loss of dependency by not taking the gross salary as reflected in the salary certificate at Ex.P8 and has erroneously, applied split multiplier method, this Court in exercise of its power under order 41 Rule 33 CPC should grant the relief which ought to have been granted by the tribunal, as in a claim arising under Motor Vehicles Act, the Tribunal is required to award just and reasonable compensation.

10. Order 41 Rules 33 of CPC reads as under:

"Order XLI Rule 33. Power of court of Appeal The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross suite or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:

Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order.

11. The question as to what is the power of Appellants Court under Order 41 Rule 33 of CPC and as to under what circumstances, the Appellant Court should exercise this discretionary power have come up for consideration both before the Apex Court and before this Court in several cases.

12. the leading case on this question is the decision of the Hon'ble Supreme Court in the case of Panna Lal v. State of Bombay [1963 SC 1516.]. In this reported decision the Hon'ble Supreme Court, after referring to Rule 33 of Order 41 has stated thus in paras 12 and 14;

"12. Even a bare reading of O.41 R.33 is sufficient to convince any one that the wide wording, was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the Appellant Court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as "the case may require". In the present case, if

there was no impediment in law the High Court could therefore, though allowing the appeal of the State by dismissing the plaintiff's suits against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the section make this position abundantly clear the illustration puts the position beyond argument.

14. The whole argument is based on the assumption that the plaintiff could be filing a cross-objection under O.41 R.22, C.P.C., have challenged the Trial Court' decree in so far as it dismissed the suit against the defendants other than the State. We are not, at present advised, prepared to agree that if a party who could have filed a cross-objection under O.41 R.22 of the Code of Civil Procedure has not done so, the Appeal Court can under no circumstance give him relief under the provisions of O.41 R.33 of the Code. It is, however, not necessary for us to discuss the question further as, in our opinion, the assumption made by the High Court that the plaintiff could have filed a cross-objection is not justified."

In the case of Giani Ram v. Ramlal [(1969) 1 SCC 813: AIR 1969 SC 1144], the Supreme Court while explaining the meaning of expression "which ought to have been passed" occurring in Order 41 Rule 33 of CPC has held that the said expression mean "what ought in law to have been passed". Following this observation, again the Apex Court in the case of Kosingh v. Smt. Deokabal [(1976) 1 SCC 383: AIR 1976 sc 634.] in paras 6 and 7 has observed thus:

"6. In Giani Ram v. Rami Lal (1969) 3 SCR 944 + ((1969) 1 SCC 813 : AIR 1969 SC 1144) the court said that in O.41 R.33 the expression "which ought to have been passed" means "what ought tin law to have been passed" and if an appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below, it may pass or make such further or other decree or order as the justice of the case may require.

7. Therefore, we hold that even if the respondent did not file any appeal from the decree of the Trial Court, that was no bar to the High Court passing a decree in favour of

the respondent for the enforcement of the charge".

13. A Learned Single Judge of this Court in the case of Smt. Kanthamma v. NanjundaDevaru [AIR 1998 Kar 4271] has followed the principles laid down by the Apex Court in the aforesaid cases. A division bench of this Court in the case of Patel Chandrappa v. Hanumanthappa [1990 (3) KLJ 264.] has granted reliefs to certain parties who have not come up in appeal against the judgment of the Trial Court. The Division Bench in this reported decision has observed that having regard to the provisions contained in Rule 33 of Order 41 of CPC, it is the duty of the Court to grant relief to them if in law they are entitled to a share in the suit schedule property.

14. Again the Hon'ble Supreme Court in Delhi Electric Supply Undertakin v. Basanti Devi ([(1999) 8 SCC 229 : AIR 2000 SC 43.] has considered the powers of Appellants Court under Order 41 Rule 33 of CPC. Relevant observations are found in para 18 and 19 which read thus:

18. This provision was explained by this Court in Mahant Dhangir v. Madam Mohan, 1987 Supp SCC 528 : (1987 Supp SCC 528 : AIR 1988 SC 54) in the following words (at P.58 of AIR):

"The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co- respondents. The appellate Court could pass any decree or order, which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words "as the case may required" used in Rule 33 of Order 41 have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. What then should be the constrain? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of the Judgment of the

lower court. I these two requirements are there, the appellate court could considered any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal. It is true that the power of the appellate court under rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.

Emphasis supplied

16. Unfortunately, in this case, the claimants have

been awarded compensation of Rs.27,49,000/- without

considering the future prospects to be awarded to the

deceased as per the dictum of the Apex Court in National

Insurance Company Limited vs. Pranay Sethi and

others reported in (2017) 16 SCC 680. The

compensation under the heads of loss of consortium, loss

of estate and funeral expenses needs to be reassessed as

per the dictum of the Hon'ble Apex Court in the case of

Satinder Kaur @ Satwinder Kaur & Ors. v. United

India Insurance Co. Ltd. reported in AIR 2020 SC

3076 and Magma General Insurance Co. Ltd. vs.

Nanu Ram reported in 2018 ACJ 2782.

17. No cross objection is filed by the claimants. In

view of the peculiar facts and circumstances and in view of

the settled proposition of law in the cases of Pranay Sethi

and Magma supra, we are of the considered opinion that

the power under Order XLI Rule 33 of CPC should be

exercised in the absence of cross objection so as to

enhance the compensation. Though the learned counsel for

the NEKRTC would contend that this is not a fit case where

the Court should exercise its discretion, it is well settled

law that Order XLI Rule 33 of CPC can be restored to do

justice to the parties in exceptional cases. In terms of the

statute and the law laid down by the Hon'ble Apex Court in

Panna Lal's case and the judgment of the Co-ordinate

Bench in the case of Akkayamma supra and followed in

the Catena of judgments of the Hon'ble Apex Court and

this Court, we are of the considered view that this is a fit

case in which the power under Order XLI Rule 33 of CPC

and Motor Vehicles Act being a benevolent legislature, we

need to exercise the power and the compensation awarded

by the Tribunal needs to be enhanced/reassessed.

18. A perusal of Ex.P7- salary certificate depicts

that the deceased was getting net salary of Rs.29,700/-

per month and no counter evidence by the NEKRTC to

disbelieve the salary certificate-Ex.P7 and the deceased

working as Assistant Master needs to be looked into for

ascertaining the income of the deceased. Hence,

considering the income of the deceased at Rs.29,700/- per

month as stated in Ex.P7, adding 15% i.e., Rs.4,455/-

towards future prospects as per the judgment of the

Hon'ble Apex Court in Pranay Sethi's case supra, after

deducting * 1/3rd of it towards personal expenses of the

deceased and applying the multiplier of 11 since the

deceased was aged 53 years, the total compensation

payable towards loss of dependency would come to

* Corrected vide Court order dated 25.02.2022.

* Rs.30,05,640/- (Rs.29,700 + 4,455 = Rs.34,155 x 12 x

11 x * 2/3).

19. In view of the dictum of the Honble Apex

Court in Satinder Kaur @ Satwinder Kaur and Magma's

cases supra, the respondents, who are wife and son of the

deceased would be entitled to Rs.40,000/- each towards

loss of spousal and parental consortium. Further, the

appellants are entitled for a sum of Rs.15,000/- towards

loss of estate and Rs.15,000/- towards funeral and

obsequies ceremony.

20. Thereby, the respondents/claimants are

entitled for total compensation under various heads as

under:

1. Towards loss of dependency * Rs.30,05,640/-

(Rs.34,155 x 12 x 11 x * 2/3)

2. Towards loss of spousal and Rs.80,000/-

parental consortium (Rs.40,000 x 2)

3. Towards loss of estate Rs.15,000/-

4. Towards funeral and obsequies Rs.15,000/-

ceremony Total *Rs.31,15,640/-

* Corrected vide Court order dated 25.02.2022.

21. The Tribunal has already awarded

compensation of Rs.27,49,000/-. Hence, after deducting

the same, the respondents are entitled for enhanced

compensation of * Rs.3,66,640/- * (Rs.31,15,640/- less

Rs.27,49,000/-) with interest at 6% per annum from the

date of petition till realization. Accordingly, point No.2 is

answered in the affirmative.

22. In the result, we pass the following

ORDER

i) The appeal filed by the NEKRTC is dismissed.

ii) The impugned judgment and award dated 31.08.2016 passed in MVC No.199/2016 by the Tribunal insofar as liability fastened on the appellant-NEKRTC is hereby confirmed.

iii) The impugned judgment and award passed by the Tribunal insofar as quantum of compensation is hereby modified exercising our powers under Order XLI Rule 33 of CPC by awarding an additional enhanced compensation of *Rs.3,66,640/- to the respondents/claimants with interest at 6% per annum.

* Corrected vide Court order dated 25.02.2022.

iv) The apportionment, deposit, release of the enhanced compensation would be as per the award of the Tribunal.

v) The appellant-NEKRTC is directed to deposit the above enhanced compensation of *Rs.3,66,640/- with interest at 6% p.a. within a period of eight weeks from the date of receipt of a certified copy of this order.

vi) The amount in deposit, if any, shall be transmitted to the Tribunal for disbursement.

vii) Registry is directed to transmit the Trial Court records to the Tribunal.

viii) No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE SMP/LG

* Corrected vide Court order dated 25.02.2022.