This appeal has been preferred against the award passed in M.C.O.P.No.330 of 1996, dated 09.12.1997, on the file of the Motor Accidents Claims Tribunal - Principal District Judge, Sivagangai. The State Transport Corporation is the appellant herein.
The facts of the case in brief are as follows:
2. On 11.07.1996, at about 10.15 p.m., when the deceased was proceeding on Madurai - Mandapam National Highways Road on the extreme left hand side of the road, a bus bearing Registration No.TN-45-0329, belonging to the respondent / State Transport Corporation, was driven by its driver in a rash and negligent manner and dashed against the deceased Ulaganathan, causing instantaneous death to him. At the time of the accident, the deceased Ulaganathan was working as a supervisor in a Spinning Mill by name, Somasundaram Super Spinning Mill and drawing Rs.3,000/- per mensum towards his salary. The claimants have filed the claim petition claiming Rs.4 lakhs towards compensation.
3. The respondent has filed a counter contending that the driver of the bus bearing Registration No.TN-45-0329, was driving the bus in a moderate speed following the traffic rules at the time of the accident and since, the deceased had suddenly crossed the road without observing the traffic rules, dashed against the bus and sustained grievous injuries and died and that the accident had not occurred due to the rash and negligent driving of the driver of the bus bearing Registration No.TN-45-N-0329.
4. Before the learned Tribunal, P.W.1 to P.W.3 were examined and Exs.A.1 to A.7 were marked on the side of the claimants and on the side of the respondent, neither oral nor documentary evidence was let in.
5. After going through the oral and documentary evidence let in on the side of the claimants, the learned Tribunal has come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the bus bearing Registration No.TN-45-N-0329 and has awarded a compensation of Rs.83,334/- with 12% interest from the date of petition till the date of realisation.
6. Aggrieved by the award of compensation in M.C.O.P.No.330 of 1996, dated 09.12.1997, on the file of the Motor Accidents Claims Tribunal - Principal District Judge, Sivagangai, the respondent has preferred this appeal.
7. Now, the point for determination in this appeal is whether the award of compensation passed in M.C.O.P.No.330 of 1996, dated 09.12.1997, on the file of the Motor Accidents Claims Tribunal - Principal District Judge, Sivagangai, is liable to be reduced for the reasons stated in the Memorandum of appeal in C.M.A.No.1076 of 1998?
The Point:
8. The learned Counsel for the appellant would contend that the appellant is challenging only the quantum of compensation. The learned Counsel for the appellant would represent that the age of the deceased was 51 years at the time of the accident and at paragraph 6 of the award, the learned Tribunal has adopted the multiplier 11 and had taken the average monthly income of the deceased as Rs.3,000/- and after calculating the annual loss of income as Rs.36,000/-, had multiplied the same with future service of six years and seven months and arrived at the loss of income as Rs.2,37,000/- and subsequently in the same paragraph, the learned Tribunal has calculated the loss of income for four years as Rs.48,000/- and for another five months as Rs.5,000/- and for another eleven years as Rs.2,90,000/- and then after deducting 1/3rd towards his personal expenses, has come to the conclusion that the loss of income as Rs.1,93,334/-. It is not correct.
9. Per contra, the learned Counsel appearing for the respondent also agrees that the method adopted by the learned Tribunal for assessing the loss of income is incorrect. P.W.3, one of the representatives of the Mill in which the deceased had worked, in his evidence, has deposed that the monthly salary of the deceased was Rs.2,937/-. In support of this, he has also produced Ex.A.7, salary certificate, and he has also deposed to the effect that the date of retirement of the deceased was 14.02.2003. If we take the monthly salary of the deceased as Rs.2,937/- as per Ex.A.7, and after deducting 1/3rd towards personal expenses, the net salary will come to Rs.1,958/- per mensum and the annual salary will be Rs.23,496/- [Rs.1,958 X 12 = Rs.23,496/-] and the relevant multiplier as per Schedule II to Section 163(A) of the Motor Vehicles Act, 1988, is 11. So, if the multiplier 11 is adopted, the total loss of income comes to Rs.2,58,456/- [Rs.23,496/- X 11 = Rs.2,58,456/-]. So, it is clear that the loss of income assessed by the learned Tribunal for the deceased as Rs.2,90,000/- is incorrect. After assessing the loss of income as Rs.2,90,000/-, the learned Tribunal has reduced Rs.96,666/- being the 1/3rd salary towards his personal expenses and then has come to an erroneous figure of Rs.1,93,334/- towards the loss of income by adopting his own method. In the claim petition, the claimants have claimed Rs.500/- towards damages to cloth and another sum of Rs.1,000/- towards loss of articles, namely the wrist watch. There is no evidence let in on the side of the claimants to show that the deceased had wrist watch at the time of the accident and that he had lost the said wrist watch in the accident. On the other hand, his clothes would have been damaged in the accident. So, I award Rs.500/- towards damages to the clothes. The learned Tribunal has awarded Rs.30,000/- towards loss of love and affection. The first claimant is the widow and the second and third claimants are the children of the deceased Ulaganathan. Out of them, the second respondent is an unmarried daughter. So, under the head loss of consortium, I award Rs.10,000/- to the first claimant and another sum of Rs.10,000/- towards loss of love and affection to the claimants. I also award Rs.2,000/- towards funeral expenses. So, the total award of compensation comes to Rs.2,80,956/- [Rs.2,58,456/- + Rs.500/- + Rs.10,000/- + Rs.10,000/- + Rs.2,000/- = Rs.2,80,956/-]. The learned Counsel appearing for the respondent would contend that even without a cross-objection questioning the quantum, the Court can suo-moto enhance the award of compensation under Order 41 Rule 33 C.P.C., In support of this contention, the learned Counsel relied on the dictum in G.M., Karnataka State Road Transport Corporation Vs. J.D.Sigamany reported in 1999 ACJ 977, wherein it has been held as follows:
"At the hearing today, Mr.Pavin, the learned Counsel who represents the Corporation submitted in the first instance that there is a bar of estoppel against the respondents because he pointed out that the order passed by the Tribunal was very much to their knowledge and that they have accepted that order and he submitted that in this background, they cannot be permitted to now raise the contention that the compensation amount should be enhanced. He put forward a familiar argument vis-a-vis the respondents that the order has assumed finality and that under Order 41 of the Civil Procedure Code they would have been entitled to support that order but that they are precluded in law from asking for enhancement in view of the fact that they have waived their right to file an appeal or cross-objections. In support of his submissions, he drew my attention to two Division Bench decisions of this Court, the first of them reported in ILR 1992(2) KAR 1053 and the second one reported in ILR 1992 KAR 1421. In both these cases, the Division Bench of this Court while considering te scope of the appellate Court in civil proceedings relating to money decrees held that it is not open to the Court to enhance the liability by allowing a plea from the opposite party for variation of the decree in the absence of a formal appeal or cross-objections. A more or less similar view has been propounded by the Supreme Court in the decisions in Raghunath Vs. Kedarnath, AIF 1969 SC 1316 and Tummalla Atchaiah Vs. Venka Narasingarao, AIR 1978 SC 725, wherein again, the Supreme Court was dealing with the ambit and scope of Order 41, Rule 22, Civil Procedure Code, 1908. Learned Counsel submitted on the basis of these decisions that the law is well settled insofar as irrespective of what the record may indicate, the Court cannot at the appellate stage enhance the compensation in the absence of a formal appeal or cross-objections having been filed.
As against this position, the respondents' learned advocate has drawn my attention to a decision rendered by a five-Judge Bench of the Supreme court in Panna Lal Vs. State of Bombay, AIR 1963 SC 1516. The court on that occasion was dealing with the provisions of Order 41, rule 33 of Civil Procedure Code and while interpreting this provision of law laid down that if the circumstances so warrant, nothing precludes an appeal court from granting a well deserved relief having regard to the powers vested in it under Order 41, rule 33, Civil Procedure Code. This view has been reiterated in a later decision of the Supreme Court reported in 1976 (1) SCC 383. The learned advocate drew my attention to two more decisions in Oriental Fire & Genl. Ins. Co., Ltd. Vs. Jagadish Babu, 1986 ACJ 890 (Karnataka) and National Insurance Co. Ltd Vs. Labanya Roy, 1985 ACJ 720 (Calcutta), wherein, in slightly different circumstances the same view have been expressed. The submission canvassed by him is a two-fold one, the first being that irrespective of whether an appeal or cross-objections have been filed, if the interest of justice so require then there is nothing to stop a court at the appellate stage from granting a relief and the second submission is that on the facts of the present case that merely because of their circumstances were either ill-advised or were unable to prefer a formal appeal or cross-objections, this circumstance should not deprive them of their rightful entitlement. To my mind, both these submissions embody a situation which calls for this court to decide the basic issue that is being debated in this proceeding, namely, the question as to whether such a course of action as asked for by the respondents is permissible and secondly, if so, in what category of cases. This last aspect of the matter assumes importance because the appellant's learned counsel has, with considerable justification pointed out to me that often times even if a court makes any exception that it may give rise to serious complications when the case is quoted as a precedent and is sought to be wrongly used, even in situations where such a relief is not warranted and that, therefore, it may virtually open the flood gates. Apart from this, on facts he has submitted that in this case no valid or cogent reasons have been set out by the respondents for not having filed an appeal or cross-objections.
I am in general agreement with the basic proposition of law that has been canvassed by the appellant's learned advocate when he points out that it is a well settled principle that a party who suffers an order or a decree and does not appeal against it or assail it would normally not be permitted at the hearing of the appeal to try and take advantage of the situation by asking for enhancement. The issue is not that but really as to whether this situation prescribes an absolute and total bar to the court granting a relief if in the interest of justice such a relief is an absolute must. One has to view the situation from a rather practical point of view the first of them being with regard to the very poor quality of legal assistance that is usually available in and around the M.A.C.T and thereafter, the second aspect of the matter being that the status of the parties and their general condition themselves may be such that they are unable to agitate the matter further and the third aspect of the matter which is relevant having regard to the present case, is the possibility of certain further tragic occurrences such as deaths that may have intervened, all of which may contribute to a situation wherein the court finds that no appeal or cross-objections have been filed. The essence of doing justice requires that compensation when awarded has got to be reasonable and fair and it has also got to be adequate having regard to the totality of the circumstances. The hearing of the appeal involves a total review of the case and the appeal is virtually an extension of the proceedings before the lower Court. The law is well settled with regard to one interesting aspect of the matter, namely, that the courts do come across a few instances where instead of overpitching the case before the trial court, a very modest amount is claimed and the Tribunals in these circumstances have been wrongly limiting the relief to the amount that has been claimed on the ground that even though the party is entitled to something higher, what was asked for is a lower figure. This court had occasion to correct these orders and to lay down that the Tribunal is required to pass an order quantifying the compensation correctly irrespective of what has been claimed on the basis of the principle that it is not the amount that is claimed in that matter, in so far as if the court has the power to award a lesser amount, that is is equally equipped with the power to award a higher amount. It is that principle which applies with equal force to the appeal court and though I do not dispute that a court would normally not permit a party to ask for enhancement unless an appeal or cross-objections have been filed but there could be a very small category of cases in which a court would make an exception, the reason being that the essence of doing justice requires that a court will not refuse a relief only because of a technical or a procedural bar. I need to amplify here that if the technicalities are upheld, the result would be doing injustice in so far as the party will be left with a compensation lesser than what a fair evaluation entitles the party to. Again, I do not on the basis of the law as enunciated by the courts in the decisions set out by me above, subscribe to the view that there exists any bar in the way of this Court exercising such powers. The powers do exist under Order 41, rule 33, Civil Procedure Code and more importantly, such powers can certainly be exercised under section 151, Civil Procedure Code in the interest of justice."
10. The above dictum squarely applies to the present facts of the case, wherein the learned Tribunal without adopting the proper method for assessing the loss of income has arrived at a lesser compensation under the head loss of income and has not even consider the claim made by the claimants under various heads in the claim petition, has reduced the claim of the claimants to a sum of Rs.1,93,334/- towards loss of income, whereas if the correct method is adopted to calculate the loss of income, it comes to Rs.2,58,456/-. As observed in the above said dictum, if circumstances so warrant nothing precludes an appeal Court from granting a well deserved relief having regard to the powers vested in it under Order 41 Rule 33 C.P.C and also under Section 151 C.P.C.
11. I am of the view that this is a fit case in which a compensation is to be enhanced even without a cross-appeal.
12. Hence, I hold on the point that the award passed in M.C.O.P.No.330 of 1996, dated 09.12.1997, on the file of the Motor Accidents Claims Tribunal - Principal District Judge, Sivagangai, is not liable to be reduced for the reasons stated in the Memorandum of appeal in C.M.A.No.1076 of 1998. On the other hand, it is to be enhanced for the reasons stated above. The point is answered accordingly.
13. In the result, the appeal is dismissed. But the award of compensation passed in M.C.O.P.No.330 of 1996, dated 09.12.1997, on the file of the Motor Accidents Claims Tribunal - Principal District Judge, Sivagangai, is enhanced and fixed as Rs.2,80,956/-. The claimants are entitled to 12% interest for the award amount from the date of petition till the date of realisation. Out of the award amount, the first claimant is entitled to Rs.1,50,000/-. The second claimant is entitled to Rs.65,956/- and the third claimant is entitled to Rs.65,000/-. The claimants are entitled to withdraw 50% of the award amount from their respective share at the first instance. The balance of the award amount are to be deposited in any one of the nationalised bank for a period of three years in a fixed deposit. The claimants are entitled to withdraw the accrued interest once in three months from the fixed deposit. The claimants have to pay the court fee for the enhanced award amount within one month. Time for deposit of the enhanced award amount with accrued interest by the appellant is three months. No costs.
rsb To The Motor Accidents Claims Tribunal -
Principal District Judge, Sivagangai.
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