Madhya Pradesh High Court
The United Insurance Company Limited vs Anil Kumar Gour on 9 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 09th OF FEBRUARY, 2024
MISC. APPEAL No. 3533 of 2018
BETWEEN:-
The United Insurance Company Limited, Through
Deputy/Divisional Manager, T.P. Hub, having its
Divisional Office at Rajkiran Bhawan, Wright Town,
Jabalpur (Madhya Pradesh)
.....Appellant / Non-Applicant No.3
(By Mrs. Asghari Khan - Advocate)
AND
1. Anil Kumar Gour S/o Late Shri Ramavtar Gour, Aged
about 45 years R/o Ward No.9, Shikshak Colony, Seoni
Malwa, District Hoshangabad (Madhya Pradesh)
2. Smt. Ritu Gour W/o Anil Kumar Gour, Aged about 44
yhears R/o Ward No.9, Shikshak Colony, Seoni Malwa,
District Hoshangabad (Madhya Pradesh)
3. Ku. Pragya Gour D/o Anil Kumar Gour Aged about 22
years R/o Ward No.9, Shikshak Colony, Seoni Malwa,
District Hoshangabad (Madhya Pradesh)
4. Dharmendra Shrivastava S/o Shri Jhalla Singh
Shrivastava, R/o Ward No.9, Obedullaganj, District
Raisen (Madhya Pradesh)
5. Ganesh Madan R/o Old Vidhan Sabha Yadavpur Bhopal
(Madhya Pradesh)
.....Respondents
(By Shri Nitin Gupta and Shri R.P. Singh - Advocates for Respondents no.1
to 3)
2
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Reserved On : 23.01.2024
Pronounced On : 09.02.2024
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This appeal coming on for hearing on 23.01.2024, the court passed
the following:
JUDGMENT
This appeal under Section 173(1) of the Motor Vehicle Act, 1988
(for short "Act") is preferred by the appellant/United India Insurance
Company Ltd. challenging the judgment and award dated 02.04.2018
delivered by the Motor Accident Claims Tribunal, Bhopal in MCC
No.1440/2014 granting compensation of Rs.7,86,000/- along with @ 7 %
interest thereon from the date of application till realization against the
respondents no.1 to 3/non-applicants, jointly and severally.
2. For the sake of convenience, the parties are referred to as they
arrayed before the Motor Accident Claims Tribunal (in short "MACT").
3. The factual contest of the case, is as under :-
(a) On 10.06.2014, the deceased-Akash Gour was a pillion rider of
the motor cycle driven by his friend, when they were reached near Kanha
Fun City at about 02:00 pm, the bus bearing no.MP-04-PA-2136 coming
from opposite direction driven by its driver(respondent no.1) in rash and
negligently and dashed against their motor cycle and due to which, Akash
Gour sustained severe injuries and died on the spot.
(b) The matter was reported to police alleging that the accident took
place, as a result of rash and negligent driving of the offending vehicle
bearing no.MP-04-PA-2136 driven by its driver (respondent no.1). Based
on the complaint lodged by Virendra Gour, a case in Crime No.274/2014
was registered by the Police - Misrod against the accused/respondent no.1-
Dharmendra Singh Shrivastava for the offence under section 304-A of IPC.
After investigation of this case, the charge-sheet was submitted before the
Court of Judicial Magistrate of First Class, Bhopal against accused/driver
(respondent no.1), for the offence punishable under Sections 304-A and
337 of IPC.
(c) The deceased Akash Gour aged about 25 years hale and healthy
and used to work as Supervisor and drawing salary of Rs.12,000/- per
month from the Proctar & Gambal Company, Mandideep and he was
unmarried and used to spend monthly income to his family of
petitioners/claimants. The petitioners no.1 and 2 are the parents and
petitioner no.3 is the sister of the deceased- Akash Gour filed an
application claiming compensation of Rs.15,50,000/- before the Tribunal,
on account of death of deceased Akash Gour, in the road traffic accident.
4. The respondents no.1 and 2/non-applicants in their written
statements have stated that the facts narrated in the application are not true
and correct, if the applicants are entitled for award of compensation, the
Insurance Company would liable to pay the same.
5. The respondent no.3/non-applicant i.e. United India Insurance
Company Ltd. filed written statement that the first respondent-driver of the
offending vehicle did not possess valid and effective driving license at the
time of accident and that the driver and the owner of the offending vehicle
has not intimated about the accident to this respondent within 14 days
which renders the Insurance Company is not liable to pay the
compensation. Further contended that there is no negligence on the part of
the respondent no.1/driver while driving the offending vehicle bearing
no.MP-04-PA-2136, thus the Insurance Company seeks exemption/absolve
from the payment of compensation to the claimants and prays to dismiss
the petition with costs.
6. In view of the pleadings of the parties, the learned Tribunal framed
the following issues dated 18.02.2016 :-
"(i)(a)Whether on 10.06.2014, there was a collision between
bus no.MP-04-PA-2136 and the motor cycle on which
Akash Gour was sitting as pillion rider in front of
National Highway Number-12, Fun City Gate, in
police Station Misrod area?
(b) If yes, then whether the said accident occurred as a
result of non-applicant no.1 driving the vehicle/bus
no.MP-04-Pa-2136 owned by applicant no.2 in a rash
and negligent manner by its driver or due to the
negligence of Akash Gour in driving his vehicle? Was
the negligence a result of rash driving or was it a result
of contributory negligence on the part of the drivers of
both the vehicles?
(iii) Whether Akash Gour died as a result of the said
accident?
(iii) Whether the vehicle in question, bus no.MP-04-PA-2136,
was insured with the applicant no.3 at the time of the
incident, if yes, then whether the said vehicle was being
driven by its driver/owner in violation of the terms of
the insurance policy at the time of the accident. Was it
happening, if yes then the impact?
(iv) Whether the fault of non-coordination of parties in the
case, if yes, what is the effect?
(v) Whether the applicants entitled to receive compensation
amount, if yes then how much amount and from which
non-applicant?
(vi) Aid and expenditure?"
7. In order to establish their claim, at the time of trial before the
Tribunal, PW-1 and PW-2 were examined and exhibits Ex.P-1 to P-9 were
got marked on behalf of the petitioners. R.P. Tondon who is the
Investigator of the Insurance Company and M.T. Sushilan who is Senior
Assistant of respondent No.3/ Insurance Company were examined and
exhibits D-1 to D-19 were got marked on behalf of respondent no.3.
8. The Tribunal, after analyzing the entire evidence on record, passed
an award for a sum of Rs.7,86,000/- as compensation, the break up details
of compensation awarding by the learned Tribunal are tabulation under:-
Sr. No. Head of Compensation Amount of
compensation awarded
in Rupees
1. Loss of earning Rs.7,56,000/-
2. For funeral expenses Rs. 15000/-
3. For loss of estate Rs. 15000/-
Total Rs.7,86,000/-
9. Aggrieved by and dissatisfied with, M/s United India Insurance
Company Ltd., being appellant herein has challenged the award mainly on
the ground that the Tribunal ought to have seen the permit of offending
vehicle bearing no.MP-04-PA-2136 which does not cover the route permit
at the time of accident and further the Tribunal ought to have assessed the
net income of the deceased for the purpose of computation. The Tribunal
has grossly erred in shifting the liability on the Insurance Company by
ignoring the evidence brought on record and further the Tribunal grossly
erred in reducing the amount of compensation which is assessed at 20% of
contributory negligence of the deceased and prays to set aside the award
and allow the appeal.
10. The learned standing counsel for the appellant/Insurance Company
has contended that the compensation awarded by the learned Tribunal is
not in accordance with law. Further contended that the permit for playing
the bus in between Obedullaganj to Dhanwada, whereas the accident
occurred at Kanha Fun City is not covered under the permit for playing the
bus, therefore, the Insurance Company is not liable to pay compensation.
Further contended that the compensation awarded by the Tribunal was
excessive and needs interference by this Court, and therefore, the award
passed by the learned Tribunal is liable to be set aside and prays to
exonerate this respondent/Insurance Company from its liability.
11. The learned counsel for the petitioners/claimants would submit that
by the time of accident, the deceased was working as Supervisor in Proctar
and Gambal Company, Mandideep and used to draw a sum of Rs.12,000/-
per month. The Tribunal without taking a note of the said fact, erroneously
fixed the income of Rs.5,000/- per month and awarded meager amount of
compensation toward loss of earnings in contrary to the Apex Court's
judgments and further he would submit that the learned Tribunal has not
awarded the compensation under various conventional heads. Further,
would submit that the award passed by the Tribunal inadequate in nature
and therefore, the same may be modified by suitably enhancing the
compensation. Further, would submit that respondent no.3/insurance
Company has not even taken the plea of contributory negligence in their
written statement in other words, there is no legal evidence on record. The
finding of the Tribunal with regard to the contributory negligence cannot
be sustained in the eye of law. Further, would submit that the Tribunal has
committed an error while passing the award and needs interference of this
Court and prays to enhance the compensation by modifying the award
passed by the learned Tribunal, even though the claimants was not filed
appeal or cross-objections.
12. Now the points that arise for consideration in this appeal are:
(i) Whether the compensation awarded by the Tribunal is
not in accordance with the principles of law and
requires enhancement?
(ii) Whether the compensation awarded by the Tribunal is
just and reasonable or needs interference of this Court ?
13. Considered the submissions of both the learned counsels, perused
and assessed the entire evidence including the exhibited documents
available on record.
Point No.1 & 2:-
A perusal of the impugned award would show that the Tribunal has
framed the issues as to whether the accident had occurred due to the rash
and negligent driving of the rider of the motor cycle to which the Tribunal,
after considering the evidence of witnesses coupled with the documentary
evidence had categorically observed in judgment at Para 14 that the
alleged accident occurred due to rash and negligence driving of the rider of
the motor cycle and contributed his negligence of 20% and respondent
no.1/driver of the offending vehicle is fixed 80% of contributory
negligence.
14. In so far as the liability is concerned to hold the contributory
negligence, the Apex Court in the case of Pramodkumar Rasikbhai
Jhaveri vs Karmasey Kunvargi Tak & Ors1 held in Para 11 as follows:
"It is important to note that the respondents did not
contend before the Tribunal that there was contributory
negligence on the part of the appellant, the driver of the
car. There was not even an allegation in the written
statement filed by the respondents that the car driver was
negligent and the accident occurred as result of partial
negligence of the car driver....... In the factual situation, it
cannot be held that there was contributory negligence on
the part of the rider of the motor cycle."
15. On perusal of above judgment, if the contribution of the deceased in
the accident is not proved by the respondents by producing evidence, the
1 (2002) 6 SCC 455
finding of the Tribunal regarding contributory negligence cannot be
upheld. In the present case, there was no evidence adduced by the
respondent/insurance company that the deceased contributed the
negligence to cause the accident. So far as the contributory negligence on
the part of the appellant/Insurance Company is concerned, since the
criminal case was registered against the respondent no.1(driver) and he did
not turned up to explain in what circumstances the accident occurred, this
Court is of the view that the learned Tribunal was not justified in holding
that the deceased contributed the negligence to cause the accident, is
clearly unjustified in the absence of any evidence to show that the
wrongful act on the part of the deceased/victim contributed either to the
accident or to the nature of the injuries sustained, the victim could not have
been held guilty of contributory negligence. Hence, the reduction of 20%
towards contributory negligence, is clearly unjustified and the same has to
be set aside. In view of the principles laid down by the Apex Court in the
above judgment, the finding of the Tribunal below is found to be contrary
to the settled principle in respect of contributory negligence of the
deceased, therefore, the accident took place on account of rash and
negligent driving of the vehicle by the driver of the offending vehicle and
caused the accident, due to which the deceased sustained severe injuries
and died on spot. Therefore, the reduction of 20% towards contributory
negligence is clearly unjustified and same has to be set aside.
16. In the present case, it is an undisputed fact that the accident occurred
on 10.06.2014 at Kanha Fun City gate in between Obedullaganj to
Jawaharchowk, Bhopal, the offending vehicle having a permit dated
15.12.2017 issued by Road Transport Authority, Bhopal, to play the bus in
between Obedullaganj to Jawaharchowk, Bhopal marked as (Exhibit D-18)
and the certificate issued by RTO dated 12.12.2017 (Exhibit D-2) which
clearly indicated that the offending vehicle bearing no.MP-04-PA-2136 is
having valid permit to play the bus in the above enroute on the date of
accident and on perusal of Google map between Obedullaganj to
Jawaharchowk, Bhopal, the Kanha Fun City is existing in between
Obedullaganj to Jawaharchowk, Bhopal, therefore, the contention of the
respondent/Insurance Company is that the offending vehicle not
possessing valid permit at the time of accident for playing the bus in the
above enroute, is not correct. On the other hand, DW-2 - M.T. Sushilan
who is working as Senior Assistant in office of respondent no.3, has
admitted in the cross-examination that the respondent no.1/ driver having
valid license and the offending vehicle having valid permit and fitness as
well as insurance. Therefore the learned Tribunal has given the finding
that the offending bus having a permit to play the offending vehicle where
the accident took place in between Obedullaganj to Bhopal.
17. In the present case, the claimants are mother and father and sister of
the deceased and they are claiming compensation that the deceased was
drawing salary of Rs.12,000/- per month by the date of death as he was
unmarried but the learned Tribunal meagerly assessed the monthly income
of the deceased of Rs.5000/- as unskilled labour on the date of the accident
i.e. on 10.06.2014. The accident occurred in the year 2014. In the absence
of proof of income, the Tribunal was not justified in taking the notional
income of the deceased, even if the deceased was a labourer or Cooli,
atleast he may get Rs.250/- per day, therefore, this Court is of the view,
that the deceased can be treated as a labour or Cooli, his monthly income
as on the date of the accident can be taken into consideration by following
the judgment in Ramachandrappa v. Royal Sundaram Alliance
Insurance Co. Ltd.2, in which the Apex Court held in para 15 as follows:
" In the present case, the appellant was working as a coolie
and in and around the date of the accident, the wage of a
labourer was between Rs 100 to Rs 150 per day or Rs 4500
per month. In our view, the claim was honest and bona fide
and, therefore, there was no reason for the Tribunal to have
reduced the monthly earning of the appellant from Rs 4500 to
Rs 3000 per month. We, therefore, accept his statement that
his monthly earning was Rs 4500."
18. In the light of the above judgment, the Hon'ble Supreme Court has
fixed the notional income of a Cooli worker in the year 2004 at rate of
Rs.4500/- per month. In view of the said ratio, the income of the deceased
can safely be fixed at the rate of Rs.4500/- for the year 2004.
19. Another judgment of Hon'ble Suprme Court in Syed Sadiqu vs.
Divisonal Manager, United India Insurance company Ltd.3, it is held
in para 9 as follows:
"There is no reason, in the instant case for the Tribunal
and the High Court to ask for evidence of monthly income
of the appellant/claimant. On the other hand, going by the
present state of economy and the rising prices in
agricultural products, we are inclined to believe that a
vegetable vendor is reasonably capable of earning of
Rs.6,500/- per month."
20. In the light of the above judgment, the Hon'ble Supreme Court has
fixed notional income of the Coolie or vegetable vendor in the 2006 at the
rate of Rs.6500/-.
21. Another judgment in Soman v. Jinesh James4, it is held in para 5
as follows:-
2. (2011) 13 SCC 236
3. (2014) 2 SCC 735
4. [ILR (2020) 3 Ker 1003] or (2020) SCC Online Kerala 3180
" ........The Hon'ble Supreme Court has also recognized
the principle that there would be incremental enhancement
in the case of even self-employed individuals in the
unorganized sector (National Insurance Co. Ltd. v. Pranay
Sethi, (2017) 16 SCC 680) and with respect to an
unspecified job of a coolie considering the increase in cost
of living and economic advancements over the years, it can
be safely assumed that even a coolie would be eligible for
incremental addition of at least Rs. 500/- in every
subsequent year. In such circumstances, the appellant who
is a Coolie, is entitled to be fixed with a notional income of
Rs. 7500/- as on the year of accident, which is 2010......."
22. In the light of the above judgment cited (supra), the notional income
of the Coolie worker has been fixed in the year 2010 at Rs.7,500/- per
month. Following the parameters laid down in the above judgments
(supra), this Court is of the considered opinion that by the date of accident,
the notional income of the deceased can be safely assumed that even a
Coolie would be eligible for the incremental addition of at least Rs.500/- in
every subsequent year. In such circumstances, the notional income of the
deceased can safely be fixed at Rs.9,500/- per month as in the year of
accident 2014.
23. To grant of compensation under various heads, now it is necessary
to refer the judgment in Sarla Verma vs. Delhi Transport Corporation &
anr5, wherein at para 18 it was held as follows:
"18. Basically only three facts need to be established by the
claimants for assessing compensation in the case of death:
(a) age of the deceased; (b) income of the deceased; and
(c) the number of dependants. The issues to be determined
by the Tribunal to arrive at the loss of dependency are:(i)
additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living
5 (2009) 6 SCC 121
expenses of the deceased; and (iii) the multiplier to be ap-
plied with reference to the age of the deceased. If these de-
terminants are standardised, there will be uniformity and
consistency in the decisions. There will be lesser need for
detailed evidence. It will also be easier for the insurance
companies to settle accident claims without delay."
24. To assess the age of the deceased, on perusal of post-mortem report
(Exhibit P-4), the age of the deceased mentioned 24 years whereas in the
claim petition field by the claimants, the age of the deceased mentioned 25
years. The accident occurred on 10.06.2014, therefore, the age of the
deceased at the time of accident was 24-25 years and he was unmarried.
Based on the said documents and pleadings in the application, this Court is
of the considered opinion that the age of the deceased is in between 24-25
years. Since the deceased was a labour and he was between the age group
of 21-25 years by the date of accident, applying the multiplier "18" as per
the judgment of Sarla Verma's case (supra) wherein loss of dependency
was thus, reassessed at para 42 of the decision, which reads as under:-
"42. We therefore hold that the multiplier to be used should
be as mentioned in Column (4) of the table above
(prepared by applying Susamma Thomas [(1994) 2 SCC
176 : 1994 SCC (Cri) 335] , Trilok Chandra [(1996) 4 SCC
362] and Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri)
1657] ), which starts with an operative multiplier of 18
(for the age groups of 15 to 20 and 21 to 25 years),
reduced by one unit for every five years, that is M-17 for 26
to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40
years, M-14 for 41 to 45 years, and M-13 for 46 to 50
years, then reduced by two units for every five years, that
is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for
61 to 65 years and M-5 for 66 to 70 years."
25. In the instant case, evidently, the deceased was survived by parents
and unmarried sister, who are the claimants and he was unmarried by the
date of death. Therefore, the number of his dependent family members are
three. Accordingly, as per Sarla Verma's Case (supra), 50% of the income
of the deceased should be deducted towards his personal and living
expenses. On this aspect, the observations of Hon'ble Apex Court in Sarla
Verma Case (supra) at Para 30, 31 and 32 are as under:-
"30. Though in some cases the deduction to be made
towards personal and living expenses is calculated on the
basis of units indicated in Trilok Chandra [(1996) 4 SCC
362], the general practice is to apply standardised
deductions. Having considered several subsequent
decisions of this Court, we are of the view that where the
deceased was married, the deduction towards personal
and living expenses of the deceased, should be one-third
(1/3rd) where the number of dependent family members is
2 to 3, one-fourth (1/4th) where the number of dependent
family members is 4 to 6, and one-fifth (1/5th) where the
number of dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants
are the parents, the deduction follows a different
principle. In regard to bachelors, normally, 50% is
deducted as personal and living expenses, because it is
assumed that a bachelor would tend to spend more on
himself. Even otherwise, there is also the possibility of his
getting married in a short time, in which event the
contribution to the parent(s) and siblings is likely to be
cut drastically. Further, subject to evidence to the
contrary, the father is likely to have his own income and
will not be considered as a dependant and the mother
alone will be considered as a dependant. In the absence
of evidence to the contrary, brothers and sisters will not
be considered as dependants, because they will either be
independent and earning, or married, or be dependent on
the father.
32. Thus even if the deceased is survived by parents and
siblings, only the mother would be considered to be a
dependant, and 50% would be treated as the personal
and living expenses of the bachelor and 50% as the
contribution to the family. However, where the family of
the bachelor is large and dependent on the income of the
deceased, as in a case where he has a widowed mother
and large number of younger non-earning sisters or
brothers, his personal and living expenses may be
restricted to one-third and contribution to the family will
be taken as two-third."
26. In the instant case, the deceased was unmarried by the date of
accident and the applicants/claimants are the parents and unmarried sister
of the deceased. As per the decision in Sarla Verma's case (supra), 50% of
the income of the deceased as to be deducted toward his personal and
living expenses. On an overall view of the principles laid down in the
above judgment, this Court is of the considered opinion that the monthly
income of the deceased is taken as Rs.9,500/-, the annual income would be
worked out to Rs.1,14,000/- (9,500/- x 12 = Rs.1,14,000/-), 50% of the
said amount would be arrived at Rs.57,000/- (1,14,000/- x 50% = 57,000/-,
after deducting the same towards his personal and living expenses, the
annual income of the deceased would be arrived at Rs.57,000/-
(Rs.1,14,000/- - 57,000/- = Rs.57,000/-).
27. As the deceased was found to be "24-25 years" old at the time of the
accident, the appropriate multiplier applicable would be "18", in view of
the principles laid down in Sarla Verma's Case (supra). Having applied the
said principle and multiplier, the loss of dependency would be worked out
to Rs.10,26,000/- (Rs.57,000/- x 18 = Rs.10,26,000/-). This Court finds
that the Tribunal has committed an error while awarding compensation
under loss of dependency. A reading of Tribunal's award makes it clear that
the learned Tribunal's approach does not accord at all with correct judicial
opinion, therefore, the claimants are entitled to sum of Rs.10,26,000/-
under the head of "loss of dependency" which would be substantive.
28. In the instant case the claimants are entitled to the compensation
under the conventional heads viz., loss of estate, loss of consortium and
funeral expenses, in light of the principles laid down in National
Insurance Company vs. Pranay Sethi6.
Funeral Expenses:-
29. Under this conventional head, the Tribunal awarded a sum of
Rs.15,000/- (as per the decision of Constitution Bench in Pranay Sethi's
case).
Loss of estate:-
30. Under this conventional head, the learned Tribunal awarded an
amount of Rs.15,000/- (as per the decision of Constitution Bench in
Pranay Sethi's case).
Loss of Consortium:-
31. Under this conventional head, the learned Tribunal has not awarded
the amount to the claimants. The father and mother of the deceased
(appellants/claimants) are entitled to be award towards loss of consortium
under the head 'filial consortium' as held by the Hon'ble Apex Court in
Magma General Insurance Company Ltd., Vs. Nanu Ram @ Chuhru
Ram and other7, for the loss of parental aid, protection, affection, society,
discipline, guidance and training instead of compensation under the head
of "loss of love and affection", therefore, the parents of the deceased
entitled "filial consortium" at the rate of Rs.40,000/- each as held in the
matter of Pranay Sethi's case (supra).
32. In Sarla Verma's case (supra) the Hon'ble Apex Court, while
elaborating the concept of 'just compensation' observed as under:
"Just compensation is adequate compensation which is fair
and equitable, on the facts and circumstances of the case, to
make good the loss suffered as a result of the wrong, as far as
6. 2017 ACJ 2700 SC
7. (2018) 18 SCC 130
money can do so, by applying the well settled principles
relating to award of compensation. It is not intended to be a
bonanza, largesse or source of profit."
33. On an overall re-appreciation of the pleadings, material on record
and the law laid down by the Hon'ble Supreme Court in the afore-cited
decisions, I am of the definite opinion that the claimants are entitled to
enhancement of compensation as modified and recalculated above and
given in the table below for easy reference.
S.No Head of Compensation Amount Enhanced Amount
. awarded by
the Tribunal
1 Loss of Dependency 7,56,000/- Rs.10,26,000/-
(Rs.9500 x 12 =
Rs.1,14,000 - 50% =
Rs.57,000 x 18)
2 Loss of Estate 15,000/- 15,000/-
3 Funeral Expenses 15,000/- 15,000/-
4 Loss of Consortium ---- 80,000/-
Rs.40,000 each to Claimants 1 and
2 (father and mother of the
deceased)
Total 7,86,000/- 11,36,000/-
34. In the present case, though the claimants did not file any cross-
objections/appeal, it is well-settled that Order XLI Rule 33 CPC empowers
the Appellate Court to grant relief to a person, who is neither appealed nor
filed any cross-objections. The object of this provision is to do complete
justice between the parties. In National Insurance Company Limited Vs.
Komal and others8, it is crystal clear that under Order XLI Rule 33 CPC,
the Appellate Court has the power to enhance the compensation even in the
absence of any Cross Objections. Para No.12 of the decision reads as
follows:
8. 2012 SCC OnLine Del 2442 / 2014 ACJ 1540
"12. Section 168 of the Motor Vehicles Act, 1988 empowers the
Court to award such compensation as appears to be just which
has been interpreted to mean just in accordance with law and it
can be more than the amount claimed by the claimants. The
provisions of the Motor Vehicles Act, 1988 are clearly a
beneficial legislation and hence should be interpreted in a way
to enable the Court to assess just compensation. The scope of
Order XLI Rule 33 of the Code of Civil Procedure and the
power of the High Court to enhance the award amount in
accident cases in the absence of cross- objections has been
discussed by the Supreme Court in Nagappa v. Gurudayal
Singh, AIR 2003 SC 674 where the Apex Court has held that the
Court is required to determine just compensation and there is
no other limitation or restriction for awarding such
compensation and in appropriate cases wherefrom the evidence
brought on record if the Tribunal/Court considers that the
claimant is entitled to get more compensation than claimed, the
Tribunal may pass such award and would empower the Court to
enhance the compensation at the appellate stage even without
the injured filing an appeal or cross-objections."
35. Under the above provisions of the Motor Vehicles Act, 1988, there is
no restriction that the compensation could be awarded only upto the
amount claimed by the claimants. In an appropriate case, where from the
evidence brought on record, if the Tribunal/Court considers, the claimant is
entitled to get more compensation than the claimed. Following the
guidelines in the decisions (supra), this Court is of the view that the
claimants are entitled to enhance the compensation at the appellate stage
even without the filing an appeal or cross-objections.
36. Therefore, in view of the foregoing discussion, this Court is of the
opinion that the award passed by the learned Tribunal warrants
interference to enhance the compensation from Rs.7,86,000/- to
Rs.11,36,000/-.
37. For the reasons as aforesaid, the appeal preferred by the appellant/
M/s.United India Insurance Company Limited is hereby dismissed and the
compensation amount is enhanced from Rs.7,86,000/- to Rs.11,36,000/-
(Rupees Eleven Lakh Thirty Six Thousand only) with costs along with
interest @7 % per annum from the date of filing of the claim petition till
realization, against the respondents 1 to 3/non-applicants jointly and
severally.
(ii) The respondent no.3 is directed to deposit the compensation
amount within two months from the date of this judgment, failing which
execution can be taken out against him.
(iii) The claimants are directed to pay the requisite Court-fee in
respect of the enhanced amount awarded over and above the compensation
awarded by the Tribunal (as per the judgment of Hon'ble Apex Court in
Ramla vs. National Insurance Company Ltd9).
(iv) On such deposit, the claimants are permitted to withdraw the
amount with accrued interest and costs, by filing a proper application
before the Tribunal.
(v) The impugned award of the learned Tribunal stands modified
to the aforesaid extent and in the terms and directions as above.
(vi) The record be sent back to the learned Tribunal within three
weeks from this day.
(vii) As a sequel, interlocutory applications pending for
consideration, if any, shall stand closed.
DUPPALA VENKATA RAMANA, J
vibha
VIBHA PACHORI
2024.02.09
15:18:26 +05'30'
9. 2019 ACJ 559 SC
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
ON THE 09th OF FEBRUARY, 2024
BETWEEN:-
The United Insurance Company Limited, Through
Deputy/Divisional Manager, T.P. Hub, having its
Divisional Office at Rajkiran Bhawan, Wright Town,
Jabalpur (Madhya Pradesh)
.....Appellant
(By Mrs. Asghari Khan - Advocate)
AND
1. Anil Kumar Gour S/o Late Shri Ramavtar Gour, Aged
about 45 years R/o Ward No.9, Shikshak Colony, Seoni
Malwa, District Hoshangabad (Madhya Pradesh)
2. Smt. Ritu Gour W/o Anil Kumar Gour, Aged about 44
yhears R/o Ward No.9, Shikshak Colony, Seoni Malwa,
District Hoshangabad (Madhya Pradesh)
3. Ku. Pragya Gour D/o Anil Kumar Gour Aged about 22
years R/o Ward No.9, Shikshak Colony, Seoni Malwa,
District Hoshangabad (Madhya Pradesh)
4. Dharmendra Shrivastava S/o Shri Jhalla Singh
Shrivastava, R/o Ward No.9, Obedullaganj, District
Raisen (Madhya Pradesh)
5. Ganesh Madan R/o Old Vidhan Sabha Yadavpur
Bhopal (Madhya Pradesh)
.....Respondents
(By Shri Nitin Gupta and Shri R.P. Singh - Advocates for Respondents no.1
to 3
------------------------------------------------------------------------------------------
Reserved On : 23.01.2024
Pronounced On : 09.02.2024
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SUBMITTED FOR APPROVAL :
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment ? Yes/No
2. Whether the copies of judgment may be marked to Law
Reporters/Journals ? Yes/No
3. Whether His Lordship wish to see the fair copy of the
Judgment ? Yes/No
DUPPALA VENKATA RAMANA, J.
vibha
VIBHA PACHORI
2024.02.09
15:17:46 +05'30'
