SUDARSAN PUHAN versus JAYANTA KU. MOHANTY & ANR. ETC. on 20 September 2018

[2018] 12 S.C.R. 1101

SUDARSAN PUHAN

v.

JAYANTA KU. MOHANTY & ANR. ETC.

(Civil Appeal Nos. 3798-3799 of 2016)

SEPTEMBER 20, 2018

[ABHAY MANOHAR SAPRE AND S. ABDUL NAZEER, JJ.]

Motor Vehicles Act, 1988 – s.173 – Appeal under – Appellant-claimant while going on a motorcycle met with an accident andsuffered severe injuries – He filed claim petition u/s.166 of MV Actbefore the Tribunal against the respondents (owner of the motorcycleand the Insurance company) – Tribunal awarded a total sum ofRs.24,62,065/- compensation to the claimant, holding therespondents liable for payment – Both claimant and the Insurancecompany filed appeal before the High Court – High Court allowedthe appeal filed by the Insurance company in part and reduced thecompensation from Rs.24,62,065/- to Rs.20,00,000/- – Aggrieved,only claimant filed appeal – Held: An appeal before the High Courtu/s.173 of MV Act is essentially in the nature of first appeal likes.96 of CPC and, therefore, the High Court is equally under legalobligation to decide all issues arising in the case both on facts andlaw after appreciating the entire evidence – In instant case, it wasthe duty of the High Court to decide the appeals keeping in viewthe requirements of Or.XX, r.4(2) r/w Or.XLI, r.31 of CPC whichrequires that judgment/order shall contain a concise statement ofthe case, points for determination, decisions thereon and thereasons – However, the High Court neither set out the facts of thecase of the parties in detail, nor dealt with any of the submissionsurged by them, nor took note of the grounds raised by the claimantand nor made any attempt to appreciate the evidence in the light ofthe settled legal principles applicable to the issues arising in thepresent case – Thus, matter remanded to the High Court to examinethe question as to whether any case for further enhancement in thequantum of compensation awarded by the Tribunal made out or notand, if so, on what grounds – Furthermore, as the InsuranceCompany chose not to file any appeal against the impugned orderof the High Court, therefore, claimant alone will have right to

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Aprosecute his appeal on merits after remand of the case to the HighCourt – Code of Civil Procedure, 1908 –s.96, Or.XX, r.4(2) r/wOr.XLI, r.31.

Partly allowing the appeals, the Court

HELD: 1. The order of the High Court would show that theBHigh Court neither set out the facts of the case of the parties indetail, nor dealt with any of the submissions urged except tomention them, nor took note of the grounds raised by the claimantand nor made any attempt to appreciate the evidence in the lightof the settled legal principles applicable to the issues arising inCthe case and proceeded to allow the appeal filed by the InsuranceCompany and reduced the compensation from Rs.24,62,065/- toRs.20,00,000/-. [Para 34][1111-D-E]

2. The High Court only observed “Considering thesubmissions of the learned counsel for the parties” and “I feelthatDcompensation should have been awarded as Rs.20,00,000/- andnot Rs.24,62,065/-”. No reasons were given by the High Courtas to why the amount of compensation should be reduced fromRs.24,62,065/- to Rs.20,00,000/- and why it cannot be enhanced.Since the appellant-claimant had also filed appeal for enhancementof the compensation, the entire controversy was again open forEdecision before the High Court at the instance of the claimantand Insurance Company. It was, therefore, necessary for theHigh Court to assign the reasons for not granting enhancementof compensation and/or its reduction. [Para 35] [1111-F-G]

3. The Insurance Company did not choose to file any specialFleave to appeal in this Court against the impugned order of theHigh Court. The effect of non-filing of appeal is that the InsuranceCompany has in principle accepted the High Court’s order.[Para 36] [1111-H; 1112-A]

4. In this view of the matter, the appellant-claimant aloneGwill have a right to prosecute his appeal on merits before theHigh Court after remand of the case by this Court wherein theHigh Court will examine the question as to whether any case forfurther enhancement in the quantum of compensation awardedby the Tribunal is made out or not and, if so, on what grounds.[Para 38] [1112-D]H

B. V Nagesh & Anr.v.H.V. Sreenivasa Murthy(2010)13 SCC 530 : [2010] 11 SCR 784 ;Santosh Hazari v.Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC179: [2001] 1 SCR 948 ;H.K.N. Swamiv.Irshad Basith(2005) 10 SCC 243 – relied on.

Madhukar & Ors.v.Sangram & Ors. (2001) 4 SCC756 : [2001] 3 SCR 138; Jagannathv.Arulappa &Anr. (2005) 12 SCC 303 ;State Bank of India & Anr.v.Emmsons International Ltd. & Anr.(2011) 12 SCC174 : [2011] 10 SCR 436 ;Uttar Pradesh State RoadTransport Corporationv.Mamta & Ors.(2016) 4 SCC172 ;National Insurance Company Ltd.v.Naresh Kumar& Ors.(2000) 10 SCC 198 ;State of Punjab & Anr.v.Navdeep Kuur & Ors.(2004) 13 SCC 680– referred to.

Kurian Chackov.Varkey Ouseph AIR 1969 Kerala316 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3798-3799 of 2016.

From the Judgment and Order dated 09.11.2015 of the High Courtof Orissa at Cuttack in M.A.C.A. Nos. 690 and 839 of 2014.

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AAlakh Alok Srivastava, Kedar Nath Tripathy, Advs. for theAppellant.

Ambhoj Kumar Sinha, Adv. for the Respondents.

The Judgment of the Court was delivered by BABHAY MANOHAR SAPRE, J. 1. These appeals are filedby the appellant-claimant against the final judgment and order dated09.11.2015 passed by the High Court of Orissa at Cuttack in M.A.C.A.No.690 of 2014 and M.A.C.A. No.839 of 2014 whereby the High Courtallowed the appeal filed by the Insurance Company and reduced thecompensation awarded by the Motor Accident Claims Tribunal (in shortC‘the Tribunal”) from Rs.24,62,065/- to Rs.20,00,000/- and in consequencedismissed the M.A.C.A. No.690 of 2014 filed by the appellant-claimantin terms of the main order passed in M.A.C.A. No.839 of 2014.

2. In order to appreciate the issue involved in these appeals, fewfacts need mention infra.D

3. The appellant herein was the claimant before the Tribunalwhereas respondent-owner of the vehicle (motorcycle) was the non-applicant No.1 and the Insurance Company was non-applicant No.2 inthe appellant’s claim petition.

4. On 31.10.2012, the appellant-claimant with one Dipak KumarEPradhan was going on a motorcycle bearing No.OR-07 S 3133 fromBaisinga to Baripada on National Highway 18 in the State of Orissa.The abovesaid Motorcycle met with an accident with a Mini Truck (407)wherein the appellant-claimant suffered severe injuries. The motorcyclewas owned by Jayanta Kumar Mohanty (respondent No.1 in CA 3798/F2016 & respondent No.2 in CA No.3799/2016) and was insured withthe National Insurance Company Ltd. (respondent No.2 in CA 3798/2016 & respondent No.1 in CA 3799/2016).

5. According to the appellant-claimant, he was in the age group of25-27 years at the time of accident and suffered the disease ofG“paraplegia” (injury in spinal cord) as a result of the abovesaid accident.

6. The appellant-claimant, therefore, filed a claim petition beforethe Tribunal, Mayurbhanj Baripada (Orissa) under Section 166 of theMotor Vehicles Act, 1988 (hereinafter referred to as ‘the MV Act”)against the respondents (owner of the motorcycle and the InsuranceHcompany) and claimed reasonable compensation for the injuries sustained by him and other statutory compensation payable under the MV Act forcausing such injuries. The respondents contested the claim petition.

7. By award dated 17.05.2014, the Tribunal allowed the appellant’sclaim petition in part and holding the respondents(non-applicants) liablefor payment of the compensation to the appellant-claimant jointly andseverely awarded a total sum of Rs.24,62,065/- with interest payable atthe rate of 7% per annum under various heads.

8. The appellant-claimant and the Insurance Company both feltaggrieved by the award, filed appeals in the High Court of Orissa atCuttack.

9. So far as M.A.C.A.No.690/2014 is concerned, it was filed bythe appellant-claimant for enhancement of the amount awarded by theTribunal whereas so far as M.A.C.A.No.839/2014 is concerned, it wasfiled by the Insurance Company against the award challenging thereinthe quantum of compensation to be on a higher side.

10. By impugned order, the High Court allowed the appeal filedby the Insurance Company (M.A.C.A.No.839/2014) in part andaccordingly reduced the compensation from Rs.24,62,065/- toRs.20,00,000/-. As a result of the main order passed in favour of theInsurance Company in their appeal, the appeal filed by the appellant-claimant (M.A.C.A. No.690/2014) seeking enhancement in the quantumof compensation was dismissed as having rendered infructuous.

11. The appellant-claimant felt aggrieved by the order of the HighCourt filed two appeals by way of special leave in this Court. One isfiled against an order by which the claimant’s appeal for enhancementin the quantum of compensation was dismissed as having renderedinfructuous and the other is filed against an order by which the InsuranceCompany’s appeal was partly allowed by reducing the quantum ofcompensation from Rs.24,62,065/- to Rs.20,00,000/-.

12. It may be mentioned that so far as the Insurance Company isconcerned, they have not filed any appeal against the order of the HighCourt. In other words, the Insurance Company seems satisfied with thequantum of compensation amount of Rs.20,00,000/-awarded by the HighCourt by the impugned order.

13. The short question, which arises for consideration in thesetwo appeals, is whether the High Court was justified in allowing the A

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AInsurance Company’s appeal (M.A.C.A. No.839/2014) and was,therefore, justified in reducing the quantum of compensation amountfrom Rs.24,62,065/- to Rs.20,00,000/- and, in consequence, was justifiedin dismissing the claimant’s appeal for enhancement of the quantum ofcompensation as having rendered infructuous.B14. Learned counsel for the appellant-claimant while assailing thelegality and correctness of the impugned order contended that the HighCourt without adverting to any factual and legal issue arising in the casesimply allowed the Insurance Company’s appeal and reduced thecompensation from Rs.24, 62,065/- to Rs.20,00,000/- awarded by theTribunal and, in consequence, dismissed the appellant-claimant’s appealCin a cryptic manner.

15. According to learned counsel, the High Court neither set outthe facts, nor dealt with any issue, nor appreciated the ocular anddocumentary evidence much less in its proper perspective, nor examinedthe legal principles applicable to the issues arising in the case and norDrendered its findings on any contentious issues decided by the Tribunalexcept to observe “Considering the submissions of the learnedcounsel for the parties” and “I feel, the interest of justice would bebest served if the awarded compensation amount of Rs.24,62,065/-is modified and reduced to Rs.20,00,000/-”.

16. Learned counsel for the appellant submitted that it was notthe consideration of the case of either parties at all and yet the InsuranceCompany succeeded in their appeal and appellant-claimant lost whichcaused prejudice to him due to reduction in quantum of compensation.

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17. Learned counsel further contended that it was the duty of theHigh Court exercising its first appellate powers under Section 173 of theFM.V. Act to have dealt with all the submissions urged by the parties andafter appreciating the entire evidence should have come to its ownconclusion one way or the other keeping in view the legal principlesgoverning the issues as to whether any case was made out forenhancement or reduction in quantum of compensation, as the case mayGbe. It was urged that since it was not done by the High Court, ajurisdictional error is committed which renders the impugned order legallyunsustainable.

18. Lastly, the learned counsel urged that if his arguments areaccepted, the remand of the case to the High Court to decide the appealHfiled by the appellant-claimant alone on merits is inevitable.

19. Learned counsel for the respondents (Insurance Company),however, supported the impugned orders and urged that they do not callfor any interference.

20. Having heard the learned counsel for the parties and on perusalof the record of the case, we find force in the submissions of the learnedcounsel for the appellant-claimant.

21. The powers of the first Appellate Court while deciding thefirst appeal are indeed well defined by various judicial pronouncementsof this Court and are, therefore, no more res integra.

22. As far back in 1969, the learned Judge – V.R. Krishna Iyer, J(as His Lordship then was the judge of Kerala High Court) while decidingthe first appeal under Section 96 of the Code of Civil Procedure, 1908(hereinafter referred to as “the Code”) Kurian Chacko vs. VarkeyOuseph, AIR 1969 Kerala 316, reminded the first appellate court of itsduty to decide the first appeal. In his distinctive style of writing withsubtle power of expression, the learned judge held as under:

“1. The plaintiff, unsuccessful in two Courts, has come uphere aggrieved by the dismissal of his suit which was onefor declaration of title and recovery of possession. Thedefendant disputed the plaintiff’s title to the property asalso his possession and claimed both in himself. The learnedMunsif, who tried the suit, recorded findings against theplaintiff both on title and possession. But, in appeal, thelearned Subordinate Judge disposed of the whole matterglibly and briefly, in a few sentences.

2. An appellate court is the final Court of fact ordinarily andtherefore a litigant is entitled to a full and fair andindependent consideration of the evidence at the appellatestage. Anything less than this is unjust to him and I haveno doubt that in the present case the learned SubordinateJudge has fallen far short of what is expected of him as anappellate Court. Although there is furious contest betweenthe counsel for the appellant and for the respondent, theyappear to agree with me in this observation…..”

(Emphasis supplied)

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A23. This Court also in various cases reiterated the aforesaidprinciple and laid down the powers of the Appellate Court under Section96 of the Code while deciding the first appeal.

24. We consider it apposite to refer to some of the decisions.

25. In Santosh Hazari vs. Purushottam Tiwari (Deceased) byBL.Rs. (2001) 3 SCC 179, this Court held (at pages 188-189) as under:

“.……..the appellate court has jurisdiction to reverse oraffirm the findings of the trial court. First appeal is avaluable right of the parties and unless restricted by law,the whole case is therein open for rehearing both onCquestions of fact and law. The judgment of the appellatecourt must, therefore, reflect its conscious application ofmind and record findings supported by reasons, on all theissues arising along with the contentions put forth, andpressed by the parties for decision of the appellateDcourt……while reversing a finding of fact the appellatecourt must come into close quarters with the reasoningassigned by the trial court and then assign its own reasonsfor arriving at a different finding. This would satisfy the courthearing a further appeal that the first appellate court haddischarged the duty expected of it…………”

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26. The above view was followed by a three-Judge Bench decisionof this Court in Madhukar & Ors. v. Sangram & Ors.,(2001) 4 SCC756, wherein it was reiterated that sitting as a court of first appeal, it isthe duty of the High Court to deal with all the issues and the evidenceled by the parties before recording its findings.F

27. In H.K.N. Swami v. Irshad Basith,(2005) 10 SCC 243,this Court (at p. 244) stated as under: (SCC para 3)

“3. The first appeal has to be decided on facts as well as onlaw. In the first appeal parties have the right to be heardboth on questions of law as also on facts and the firstGappellate court is required to address itself to all issuesand decide the case by giving reasons. Unfortunately, theHigh Court, in the present case has not recorded any findingeither on facts or on law. Sitting as the first appellate courtit was the duty of the High Court to deal with all the issues H

SUDARSAN PUHAN v. JAYANTA KU. MOHANTY & ANR.[ABHAY MANOHAR SAPRE, J.]

and the evidence led by the parties before recording thefinding regarding title.”

28. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC303, while considering the scope of Section 96 of the Code, this Court(at pp. 303-04) observed as follows: (SCC para 2)

“2. A court of first appeal can reappreciate the entireevidence and come to a different conclusion……...”

29. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy,(2010) 13 SCC 530, this Court taking note of all the earlier judgments ofthis court reiterated the aforementioned principle with these words:

“3. How the regular first appeal is to be disposed of by theappellate court/High Court has been considered by thisCourt in various decisions. Order 41 CPC deals with appealsfrom original decrees. Among the various rules, Rule 31mandates that the judgment of the appellate court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied,the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirmthe findings of the trial court. The first appeal is a valuableright of the parties and unless restricted by law, the wholecase is therein open for rehearing both on questions of factand law. The judgment of the appellate court must, therefore,reflect its conscious application of mind and record findingssupported by reasons, on all the issues arising along withthe contentions put forth, and pressed by the parties fordecision of the appellate court. Sitting as a court of firstappeal, it was the duty of the High Court to deal with all theissues and the evidence led by the parties before recordingits findings. The first appeal is a valuable right and the partieshave a right to be heard both on questions of law and onfacts and the judgment in the first appeal must address itselfto all the issues of law and fact and decide it by giving A

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Areasons in support of the findings. (Vide Santosh Hazari v.Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758,para 5.)

5. In view of the above salutary principles, on going throughBthe impugned judgment, we feel that the High Court hasfailed to discharge the obligation placed on it as a firstappellate court. In our view, the judgment under appeal iscryptic and none of the relevant aspects have even beennoticed. The appeal has been decided in an unsatisfactorymanner. Our careful perusal of the judgment in the regularCfirst appeal shows that it falls short of considerations whichare expected from the court of first appeal. Accordingly,without going into the merits of the claim of both parties,we set aside the impugned judgment and decree of the HighCourt and remand the regular first appeal to the High Court Dfor its fresh disposal in accordance with law.”

30. The aforementioned cases were relied upon by this Courtwhile reiterating the same principle in State Bank of India & Anr. vs.Emmsons International Ltd. & Anr., (2011) 12 SCC 174 and UttarPradesh State Road Transport Corporation vs. Mamta & Ors. (2016)E4 SCC 172.

31. An appeal under Section 173 of the M.V. Act is essentially inthe nature of first appeal alike Section 96 of the Code and, therefore, theHigh Court is equally under legal obligation to decide all issues arising inthe case both on facts and law after appreciating the entire evidence.F[See National Insurance Company Ltd. vs. Naresh Kumar & Ors.((2000) 10 SCC 198 and State of Punjab & Anr. vs. Navdeep Kuur &Ors. (2004) 13 SCC 680].

32. As observed supra, as a first Appellate Court, it was the dutyof the High Court to have decided the appeals keeping in view theGrequirements of Order XX Rule 4 (2) read with Order XLI Rule 31 ofthe Code which requires that judgment/order shall contain a concisestatement of the case, points for determination, decisions thereon andthe reasons.

33. Coming now to the facts of the case at hand, we consider itappropriate to reproduce the order of the High Court infra:H

“Considering the submissions made by the learned counselfor the parties and keeping in view the quantum ofcompensation amount awarded and the basis on which thesame has been arrived at I feel, the interest of justice wouldbe best served if the awarded compensation amount ofRs.24,62,065/- is modified and reduced to Rs.20,00,000/-which is payable to the claimant along with the awardedinterest. The impugned award is modified to the said extent.

The appellant-Insurance Company is directed to depositthe modified compensation amount of Rs.20,00,000/- alongwith awarded interest with the learned Tribunal within sixweeks hence. On deposit of the amount, the same shall bedisbursed to the claimant proportionately, as per thedirection of the learned Tribunal given in the impugnedaward. “

34. Mere perusal of the afore-quoted order of the High Courtwould show that the High Court neither set out the facts of the case ofthe parties in detail, nor dealt with any of the submissions urged exceptto mention them, nor took note of the grounds raised by the claimant andnor made any attempt to appreciate the evidence in the light of the settledlegal principles applicable to the issues arising in the case and proceededto allow the appeal filed by the Insurance Company and reduced thecompensation from Rs.24,62,065/- to Rs.20,00,000/-.

35. The High Court only observed “Considering the submissionsof the learned counsel for the parties” and “I feelthat compensationshould have been awarded as Rs.20,00,000/- and notRs.24,62,065/-”. No reasons were given by the High Court as to whythe amount of compensation should be reduced from Rs.24,62,065/- toRs.20,00,000/- and why it cannot be enhanced. Since the appellant-claimant had also filed appeal for enhancement of the compensation, theentire controversy was again open for decision before the High Court atthe instance of the claimant and Insurance Company. It was, therefore,necessary for the High Court to assign the reasons for not grantingenhancement of compensation and/or its reduction. In the absence ofany reasons, we are unable to uphold the impugned orders of the HighCourt.

36. As mentioned above, the Insurance Company did not chooseto file any special leave to appeal in this Court against the impugned A

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Aorder of the High Court. The effect of non-filing of appeal is that theInsurance Company has in principle accepted the High Court’s order.

37. This Court having allowed the claimant’s appeal and settingaside the impugned order, it results in dismissal of the appeal filed by theInsurance Company (M.A.C.A. No.839 of 2014) and allowing of theBappeal (M.A.C.A.No.690/2014) filed by the claimant. Had the InsuranceCompany filed special leave to appeal against the impugned order in thisCourt seeking further reduction in the compensation awarded by theHigh Court like what the Insurance Company did when they had filedappeal before the High Court questioning inter alia the quantum ofcompensation being on higher side, the Insurance Company too wouldChave been entitled to prosecute their appeal on merits after remand beforethe High Court in terms of this order. It was, however, not done by theInsurance Company.

38. In this view of the matter, the appellant-claimant alone willhave a right to prosecute his appeal (M.A.C.A. No.690 of 2014) onDmerits before the High Court after remand of the case by this Courtwherein the High Court will examine the question as to whether anycase for further enhancement in the quantum of compensation awardedby the Tribunal is made out or not and, if so, on what grounds.

39. In view of the foregoing discussion, we remand only theEappellant-claimant’s appeal (M.A.C.A. No.690 of 2014) to the HighCourt for deciding the question as to whether any case is made out forfurther enhancement from Rs.24,62,065/- awarded by the Tribunal and,if so, on what grounds. Needless to say, the Insurance Company willhave a right to oppose the appellant-claimant’s appeal on the merits.

F40. However, we make it clear that we have not applied our mindto the merits of the issues involved in the case having formed an opinionto remand the case to the High Court and hence the High Court woulddecide M.A.C.A. No.690/2014 strictly in accordance with law on meritsuninfluenced by any of our observations. We request the High Court toGdecide the appeal preferably within six months.

41. The appeals thus succeed and are accordingly allowed in part.The impugned orders are set aside. No costs.

Ankit GyanH

Appeals partly allowed.