Full Judgment Text
CA 5926/2021
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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No 5926 of 2021
(Arising out of SLP (C) No 6030 of 2021)
Satya Prakash Dwivedi Appellant
Versus
Munna alias Chandrabhan Yadav Respondent
and Others
J U D G M E N T
B V Nagarathna, J
1 Leave granted.
2 The appellant was injured in a road traffic accident. He has filed this
appeal, being aggrieved by the impugned judgment and award dated
28.01.2021 passed by the Allahabad High Court in First Appeal from
Order No.3182 of 2017 by which the High Court dismissed the said
appeal filed by the him and reduced the compensation amount from
Rs.5,42,633/- to Rs.3,26,833/- on the premise that the Motor Accident
Claims Tribunal (for the sake of convenience, the ‘Tribunal’) had
arbitrarily construed functional disability at the rate of 50% without any
evidence to that effect. The High Court deemed it appropriate to assess
Signature Not Verified
Digitally signed by
Chetan Kumar
Date: 2021.09.28
18:09:11 IST
Reason:
CA 5926/2021
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20% functional disability inasmuch as it was nowhere mentioned that
the disability was permanent in nature and was irreversible.
3 The short question that arises in this appeal is, whether, the High Court,
in exercise of its appellate jurisdiction could have reduced the
compensation awarded by the Tribunal in the first appeal filed by the
injured claimant seeking enhancement of compensation. In other words,
whether the High Court was justified in exercising its power under Order
XLI Rule 33 of the Code of Civil Procedure 1908 (for short, the ‘CPC’).
4 Succinctly stated the facts are that the appellant -claimant while riding
on his motorcycle bearing Registration No.UP93H-5532 met with an
accident at about 6.30 p.m. on 30.10.2002 when a Truck, bearing
Registration No.UP32Z-2570, came on the wrong side of the road and
collided against the appellant-claimant, as a result of which he
sustained grievous injuries. Although the appellant-claimant underwent
treatment for about 470 days, he was rendered disabled. He was 32
years of age at the time of accident and was running a canteen and said
to be earning Rs.10,000/- per month. Appellant filed a claim petition
seeking compensation of Rs.17 lakhs along with interest at the rate of
17% per annum from the date of filing of claim petition till the date of
actual payment on account of grievous injuries sustained by him in the
accident.
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5 It is pertinent to mention that the Tribunal initially awarded
compensation of Rs.6,03,000/- along with 7% interest per annum from
the date of judgment till actual payment vide its Award dated
30.10.2006 passed in Motor Accident Claim Petition No.299 of 2002.
Being aggrieved by the said Award, the respondent – Insurance
Company approached the High Court by filing First Appeal from Order
No.293 of 2007. By order dated 03.12.2015, the High Court set aside
the Award dated 30.10.2006, except the finding recorded by the
Tribunal that the accident had actually taken place, allowed the said
appeal and remanded the matter to the Tribunal for decision afresh in
light of the observations made in the said order.
6 On remand, the Tribunal passed the judgment and order dated
01.07.2017 awarding compensation of Rs.5,42,633/- along with interest
at the rate of 7% per annum from the date of filing the petition till the
date of actual payment by accepting the permanent disability to the
extent of 50% to that particular part of the body and taking into account
his income as Rs.54,000/- per annum. The Tribunal also applied
multiplier of 15 in calculating the future loss and also awarded
compensation on other heads. Not being satisfied with the said Award,
the appellant-claimant filed an appeal being First Appeal from Order
No.3182 of 2017.
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7 By the impugned judgment dated 28.01.2021, the High Court construed
functional disability at the rate of 20% rather than 50% as assessed by
the Tribunal, assessed the age of claimant to be above 35 years and by
applying the multiplier of 15, computed the total compensation under
the Head of loss of income at Rs.1,51,200/-. The High Court also
awarded compensation under the other heads i.e. Rs.53,633/- under the
Head of medical treatment; Rs.25,000/- under the head of mental and
physical pain; Rs.36,000/- under the Head of loss of income; Rs.18,000/-
under the head of nutritious diet; and Rs.5,000/- under the head of
conveyance. The High Court noted that the Tribunal had not awarded
any compensation under the head of attendant charges and future
treatment, it awarded compensation for a sum of Rs.18,000/- and
Rs.20,000/- respectively under those heads, even though the High Court
reduced the overall compensation from Rs.5,42,633/- to Rs.3,26,833
resulting in a total reduction of compensation to Rs.2,15,800/-. This was
on account of construing functional disability at the rate of 20% rather
than 50% as assessed by the Tribunal. The age of the claimant was also
assessed as being above 35 years and taken the same in the bracket of
36 to 40 years. Multiplier of 15 was applied rather than 17 as applied by
the Tribunal. Hence this appeal by special leave.
8 We have heard learned counsel appearing for the parties and perused
the record.
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9 Sri Vipin Kumar, learned counsel appearing for the appellant-claimant,
contended that the High Court was not right in reducing the quantum of
compensation awarded to the appellant, in an appeal filed by him
seeking enhancement of the same. The main grievance of the appellant
is that the High Court ought not to have exercised power under Order
XLI Rule 33 of the CPC to reduce the compensation awarded by the
Tribunal in an appeal filed by the appellant-claimant. It was submitted
that while on the one hand, the High Court reduced the quantum of
compensation by reducing the percentage of functional disability from
50% to 20%, at the same time the High Court granted compensation
under the heads of ‘attendant charges’ and ‘future medical treatment
charges’ in a sum of Rs.18,000/- and Rs.20,000/- respectively. It was
urged that the High Court should not have exercised its power under
Order XLI Rule 33 of the CPC, particularly, in the absence of any appeal
or cross objection filed by the respondent-Insurance Company. That the
power under Order XLI Rule 33 of the CPC has to be exercised in
exceptional cases when its non-exercise would lead to difficulty in the
adjustment of rights of various parties. Therefore, learned counsel for
the appellant sought for setting aside the impugned judgment and
award passed by the High Court and for restoration of the judgment and
award of the Tribunal, in case this Court is not inclined to award a higher
compensation.
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10 Sri S.L. Gupta, learned counsel appearing for the respondent-Insurance
Company supported the impugned judgment and award passed by the
High Court and contended that there is no merit in this appeal.
11 We have considered the contentions of the respective parties in light of
the facts and relevant provisions of law.
12 Order XLI Rule 33 of the 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 35A, in pursuance of any objection on which the
Court from whose decree the appeal is preferred has omitted or
refused to made such order.”
13 Upon a plain reading of Order XLI Rule 33 of the CPC, it reveals that the
Appellate Court has the power to pass any decree or order which ought
to have been passed, and to pass such other decree or order as the
case may require. Notwithstanding that the appeal is against a part of
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the decree, this power may be exercised by the court in favour of all or
any of the respondents although such respondent may not have filed
any appeal or objection. However, the said power must be exercised
with caution or circumspection, particularly, in the absence there being
any cross objection or appeal filed by the respondents. Such a power
has to be exercised in exceptional cases when its non-exercise will lead
to difficulties in the adjustment of rights of the parties.
14 The aforesaid Rule does not confer unrestricted rights to interfere with
decrees which are not assailed merely because the appellate court does
not agree with the opinion of the court appealed from. It is the duty of
the appellate court to decide the appeal in accordance with law. The
appellate court must apply its judicial mind to the evidence as a whole
while deciding a case and a judgment on merits should not be lightly
interfered with or reversed purely on technical grounds unless it has
resulted in failure of justice.
15 In the instant case although the High Court has placed reliance on the
judgment of this Court in Raj Kumar vs. Ajay Kumar – (2011) 1 SCC 343,
in our view it could not have reduced the percentage of functional
disability from 50% to 20% when there was no challenge to the said
finding arrived at by the Tribunal by an appeal or cross objection filed by
the Insurance Company and in the absence of recording justifiable
reasons for doing so. As already stated, the injured appellant-claimant
had filed the appeal seeking enhancement in the quantum of
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compensation by contending that he had suffered 70% disability to the
particular parts of his body but the Tribunal had overlooked the same
and had assessed disability only at the rate of 50%. Instead of
considering that contention on merits, the High Court ignored the same
and instead gave weightage to the contentions of the respondent-
Insurance Company which was to the effect that the computation of
functional disability at the rate of 50% was on the higher side and the
same had to be toned down and therefore, the power under Order XLI
Rule 33 of CPC could be exercised to do complete justice to the parties.
We find that the High Court was not right in its approach in the matter
for the reason that the respondent – Insurance Company had not filed
any appeal seeking reduction in the compensation amount awarded by
the Tribunal and consequently, in the appeal filed by the injured
appellant-claimant, the contention of the Insurance Company ought not
have been allowed by ignoring the plea of the appellant-claimant
seeking enhancement in the compensation. The appellant-claimant
could not have been worse off than what had been granted to him by
the Tribunal, in an appeal filed by him seeking enhancement of
compensation.
16 It is noted that Dr Pushkar Anand, Orthopaedic Surgeon at District
Hospital Hameerpur and Member of the Medical Board, had opined that
the appellant sustained partial stiffness in both his knees, toes and
wrists, as a result of the injuries sustained by him in the accident. There
was disability of moving his feet and hence, the same was assessed at
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70% and not disability of the whole body. The Tribunal, however, opined
that the disability was only 50% as even the Doctor had admitted that
the appellant’s work would not be so badly affected as had been
claimed by him. The High Court, however, has reduced the percentage
of disability to 20% only by opining that there was no shortening of the
lower limbs and that stiffness of the joints in the feet could have been
due to injuries or disease viz., ‘Ankylosis’. But in fact, the appellant had
sustained fractures on both his lower limbs and hands.
17 We are of the view that the High Court was not justified in exercising its
power under Order XLI Rule 33 of the CPC in the instant case and
reducing the compensation from Rs.5,42,633/- as awarded by the
Tribunal to Rs.3,26,833/- i.e. a total reduction of Rs.2,15,800/- in the
compensation amount. At the same time, the High Court awarded an
additional compensation under the heads of ‘attendant’ and ‘future
treatment’ charges.
18 In view of the above, we find it just and proper to restore the
compensation i.e. Rs.5,42,633/- awarded by the Tribunal vide its
judgment and Award dated 01.07.2017, by setting aside the impugned
judgment and award passed by the High Court. We consequently direct
the respondent-Insurance Company to pay the said compensation
amount along with interest thereon at the rate of 7% per annum from
the date of filing the claim petition till the date of actual payment to the
appellant-claimant within a period of three months.
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19 Ordered accordingly.
20 The appeal is allowed in the aforesaid terms. No costs.
21 Pending interlocutory applications, if any, stand disposed.
….....…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
..…....…........……………….…........J.
[B V Nagarathna]
New Delhi;
September 17, 2021
CKB
CA 5926/2021
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ITEM NO.41 Court 4 (Video Conferencing) SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No.6030/2021
(Arising out of impugned final judgment and order dated 28-01-2021
in FAFO No.3182/2017 passed by the High Court of Judicature at
Allahabad)
SATYA PRAKASH DWIVEDI Petitioner(s)
VERSUS
MUNNA ALIAS CHANDRABHAN YADAV & ORS. Respondent(s)
(With appln.(s) for I.R. and IA No.52365/2021-EXEMPTION FROM FILING
C/C OF THE IMPUGNED JUDGMENT and IA No.52366/2021-EXEMPTION FROM
FILING O.T.)
Date : 17-09-2021 This petition was called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MRS. JUSTICE B.V. NAGARATHNA
For Petitioner(s) Mr. Vipin Kumar, Adv.
Mr. Deepak Goel, AOR
Mr. K.K. Srivastava, Adv.
For Respondent(s) Mr. S.L. Gupta, Adv.
Ms. Gunjan Sharma, Adv.
Mr. Asutosh Sharma, Adv.
Mr. Neeraj Srivastava, Adv.
Mr. Varinder Kumar Sharma, AOR
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UPON hearing the counsel the Court made the following
O R D E R
1 Leave granted.
2 The appeal is allowed in terms of the signed reportable judgment.
3 Pending applications, if any, stand disposed of.
(CHETAN KUMAR) (SAROJ KUMARI GAUR)
A.R.-cum-P.S. Court Master
(Signed reportable judgment is placed on the file)