SATYA PRAKASH DWIVEDI versus MUNNA ALIAS CHANDRABHAN YADAV AND OTHERS on 17 September 2021

[2021] 9 S.C.R. 259

SATYA PRAKASH DWIVEDI

v.

MUNNA ALIAS CHANDRABHAN YADAV AND OTHERS

(Civil Appeal No. 5926 of 2021)

SEPTEMBER 17, 2021

[DR DHANANJAYA Y CHANDRACHUD ANDB V NAGARATHNA, JJ.]

Code of Civil Procedure, 1908 – Or.XLI r.33 – Power of Courtof Appeal – Appellant-claimant met with an accident and sustainedgrievous injuries – Appellant filed claim petition – Tribunal passedthe judgment and order awarding compensation of Rs.5,42,633/-along with interest by accepting the permanent disability to the extentof 50% to that particular part of the body – However, the HighCourt construed functional disability at the rate of 20% rather than50% as assessed by the Tribunal and reduced the overallcompensation from Rs.5,42,633/- to Rs.3,26,833/- – On appeal, held:Or.XLI r.33 does not confer unrestricted rights to interfere withdecrees which are not assailed merely because the appellate courtdoes not agree with the opinion of the court appealed from – TheAppellate Court must apply its judicial mind – A judgment on meritsshould not be lightly interfered with or reversed purely on technicalgrounds unless it has resulted in failure of justice – The High Courtcould not have reduced the percentage of functional disability from50% to 20% when there was no challenge to the said finding arrivedat by the Tribunal by an appeal or cross objection filed by theInsurance company and in the absence of recording justifiablereasons for doing so – The High Court was not right in its approachin the matter for another reason that the Insurance company hadnot filed any appeal seeking a reduction in the compensation amountawarded by the Tribunal – Thus, the High Court was not justified inexercising its power u/Or. XLI r.33 of the CPC in the instant caseand reducing the compensation from Rs.5,42,633/- as awarded bythe Tribunal to Rs.3,26,833/- i.e. a total reduction of Rs.2,15,800/-in the compensation amount – Thus, the impugned judgment of theHigh Court is set aside and the compensation amount of Rs.5,42,633/- awarded by the Tribunal is restored.

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260SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD: 1. Upon a plain reading of Order XLI Rule 33 ofthe CPC, it reveals that the Appellate Court has the power topass any decree or order which ought to have been passed, andto pass such other decree or order as the case may require.BNotwithstanding that the appeal is against a part of the decree,this power may be exercised by the court in favour of all or any ofthe respondents although such respondent may not have filedany appeal or objection. However, the said power must beexercised with caution or circumspection, particularly, in theabsence there being any cross objection or appeal filed by theCrespondents. Such a power has to be exercised in exceptionalcases when its non-exercise will lead to difficulties in theadjustment of rights of the parties. [Para 13][265-C-E]

2. The Order XLI Rule 33 does not confer unrestrictedrights to interfere with decrees which are not assailed merelyDbecause the appellate court does not agree with the opinion ofthe court appealed from. It is the duty of the appellate court todecide the appeal in accordance with law. The appellate courtmust apply its judicial mind to the evidence as a whole whiledeciding a case and a judgment on merits should not be lightlyEinterfered with or reversed purely on technical grounds unless ithas resulted in failure of justice. [Para 14][265-E-G]

3. In the instant case, although the High Court has placedreliance on the judgment of this Court in Raj Kumar vs. AjayKumar – (2011) 1 SCC 343, in view of this Court it could notFhave reduced the percentage of functional disability from 50% to20% when there was no challenge to the said finding arrived atby the Tribunal by an appeal or cross objection filed by theInsurance Company and in the absence of recording justifiablereasons for doing so. The injured appellant-claimant had filedthe appeal seeking enhancement in the quantum of compensationGby contending that he had suffered 70% disability to the particularparts of his body but the Tribunal had overlooked the same andhad assessed disability only at the rate of 50%. Instead ofconsidering that contention on merits, the High Court ignored H

the same and instead gave weightage to the contentions of therespondent-Insurance Company which was to the effect that thecomputation of functional disability at the rate of 50% was on thehigher side and the same had to be toned down and therefore,the power under Order XLI Rule 33 of CPC could be exercisedto do complete justice to the parties. This Court finds that theHigh Court was not right in its approach in the matter for thereason that the respondent – Insurance Company had not filedany appeal seeking reduction in the compensation amount awardedby the Tribunal and consequently, in the appeal filed by the injuredappellant-claimant, the contention of the Insurance Companyought not have been allowed by ignoring the plea of the appellant-claimant seeking enhancement in the compensation. Theappellant-claimant could not have been worse off than what hadbeen granted to him by the Tribunal, in an appeal filed by himseeking enhancement of compensation. [Para 15][265-G-H; 266-A-D]

4. This Court is of the view that the High Court was notjustified in exercising its power under Order XLI Rule 33 of theCPC in the instant case and reducing the compensation fromRs.5,42,633/- as awarded by the Tribunal to Rs.3,26,833/- i.e. atotal reduction of Rs.2,15,800/- in the compensation amount.Thus, this Court finds it just and proper to restore thecompensation i.e. Rs.5,42,633/- awarded by the Tribunal vide itsjudgment and Award dated 01.07.2017, by setting aside theimpugned judgment and award passed by the High Court. [Paras17 and 18][266-G-H; 267-A-B]

Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 : [2010]13 SCR 179 – referred to.

Case Law Reference

[2010] 13 SCR 179referred toPara 15

CIVIL APPELLATE JURISDICTION: Civil Appeal No.5926 of2021.

From the Judgment and Order dated 28.01.2021 of the High Courtof Judicature for Allahabad in First Appeal From Order No.3182 of 2017.

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[2021] 9 S.C.R.

AVipin Kumar, Deepak Goel, K. K. Srivastava, Advs. for theAppellant.

S. L. Gupta, Ms. Gunjan Sharma, Asutosh Sharma, NeerajSrivastava, Varinder Kumar Sharma, Advs. for the Respondents.

The Judgment of the Court was delivered byB

B V NAGARATHNA, J.

1. Leave granted.

2. The appellant was injured in a road traffic accident. He hasfiled this appeal, being aggrieved by the impugned judgment and awardCdated 28.01.2021 passed by the Allahabad High Court in First Appealfrom Order No.3182 of 2017 by which the High Court dismissed thesaid appeal filed by the him and reduced the compensation amount fromRs.5,42,633/- to Rs.3,26,833/- on the premise that the Motor AccidentClaims Tribunal (for the sake of convenience, the ‘Tribunal’) hadDarbitrarily construed functional disability at the rate of 50% without anyevidence to that effect. The High Court deemed it appropriate to assess20% functional disability inasmuch as it was nowhere mentioned thatthe disability was permanent in nature and was irreversible.

3. The short question that arises in this appeal is, whether, theHigh Court, in exercise of its appellate jurisdiction could have reducedEthe compensation awarded by the Tribunal in the first appeal filed by theinjured claimant seeking enhancement of compensation. In other words,whether the High Court was justified in exercising its power under OrderXLI Rule 33 of the Code of Civil Procedure 1908 (for short, the ‘CPC’).

4. Succinctly stated the facts are that the appellant -claimant whileFriding on his motorcycle bearing Registration No.UP93H-5532 met withan accident at about 6.30 p.m. on 30.10.2002 when a Truck, bearingRegistration No.UP32Z-2570, came on the wrong side of the road andcollided against the appellant-claimant, as a result of which he sustainedgrievous injuries. Although the appellant-claimant underwent treatmentGfor about 470 days, he was rendered disabled. He was 32 years of ageat the time of accident and was running a canteen and said to be earningRs.10,000/- per month. Appellant filed a claim petition seekingcompensation of Rs.17 lakhs along with interest at the rate of 17% perannum from the date of filing of claim petition till the date of actualpayment on account of grievous injuries sustained by him in the accident.H

5. It is pertinent to mention that the Tribunal initially awardedcompensation of Rs.6,03,000/- along with 7% interest per annum fromthe date of judgment till actual payment vide its Award dated 30.10.2006passed in Motor Accident Claim Petition No.299 of 2002. Being aggrievedby the said Award, the respondent – Insurance Company approachedthe High Court by filing First Appeal from Order No.293 of 2007. Byorder dated 03.12.2015, the High Court set aside the Award dated30.10.2006, except the finding recorded by the Tribunal that the accidenthad actually taken place, allowed the said appeal and remanded thematter to the Tribunal for decision afresh in light of the observationsmade in the said order.

6. On remand, the Tribunal passed the judgment and order dated01.07.2017 awarding compensation of Rs.5,42,633/- along with interestat the rate of 7% per annum from the date of filing the petition till thedate of actual payment by accepting the permanent disability to the extentof 50% to that particular part of the body and taking into account hisincome as Rs.54,000/- per annum. The Tribunal also applied multiplierof 15 in calculating the future loss and also awarded compensation onother heads. Not being satisfied with the said Award, the appellant-claimant filed an appeal being First Appeal from Order No.3182 of 2017.

7. By the impugned judgment dated 28.01.2021, the High Courtconstrued functional disability at the rate of 20% rather than 50% asassessed by the Tribunal, assessed the age of claimant to be above 35years and by applying the multiplier of 15, computed the totalcompensation under the Head of loss of income at Rs.1,51,200/-. TheHigh Court also awarded compensation under the other heads i.e.Rs.53,633/- under the Head of medical treatment; Rs.25,000/- under thehead of mental and physical pain; Rs.36,000/- under the Head of loss ofincome; Rs.18,000/- under the head of nutritious diet; and Rs.5,000/-under the head of conveyance. The High Court noted that the Tribunalhad not awarded any compensation under the head of attendant chargesand future treatment, it awarded compensation for a sum of Rs.18,000/- and Rs.20,000/- respectively under those heads, even though the HighCourt reduced the overall compensation from Rs.5,42,633/- to Rs.3,26,833resulting in a total reduction of compensation to Rs.2,15,800/-. This wason account of construing functional disability at the rate of 20% ratherthan 50% as assessed by the Tribunal. The age of the claimant was alsoassessed as being above 35 years and taken the same in the bracket of A

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A36 to 40 years. Multiplier of 15 was applied rather than 17 as applied bythe Tribunal. Hence this appeal by special leave.

8. We have heard learned counsel appearing for the parties andperused the record.

9. Sri Vipin Kumar, learned counsel appearing for the appellant-Bclaimant, contended that the High Court was not right in reducing thequantum of compensation awarded to the appellant, in an appeal filed byhim seeking enhancement of the same. The main grievance of theappellant is that the High Court ought not to have exercised power underOrder XLI Rule 33 of the CPC to reduce the compensation awarded byCthe Tribunal in an appeal filed by the appellant-claimant. It was submittedthat while on the one hand, the High Court reduced the quantum ofcompensation by reducing the percentage of functional disability from50% to 20%, at the same time the High Court granted compensationunder the heads of ‘attendant charges’ and ‘future medical treatmentcharges’ in a sum of Rs.18,000/- and Rs.20,000/- respectively. It wasDurged that the High Court should not have exercised its power underOrder XLI Rule 33 of the CPC, particularly, in the absence of any appealor cross objection filed by the respondent-Insurance Company. That thepower under Order XLI Rule 33 of the CPC has to be exercised inexceptional cases when its non-exercise would lead to difficulty in theEadjustment of rights of various parties. Therefore, learned counsel forthe appellant sought for setting aside the impugned judgment and awardpassed by the High Court and for restoration of the judgment and awardof the Tribunal, in case this Court is not inclined to award a highercompensation.

F10. Sri S.L. Gupta, learned counsel appearing for the respondent-Insurance Company supported the impugned judgment and award passedby the High Court and contended that there is no merit in this appeal.

11. We have considered the contentions of the respective partiesin light of the facts and relevant provisions of law.

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12. Order XLI Rule 33 of the CPC reads as under:

“33. Power of Court of Appeal.- The Appellate Court shall havepower to pass any decree and make any order which ought tohave been passed or made and to pass or make such further orother decree or order as the case may require, and this power H

SATYA PRAKASH DWIVEDI v. MUNNA ALIAS CHANDRABHANYADAV AND OTHERS [B V NAGARATHNA, J.]

may be exercised by the Court notwithstanding that the appeal isas to part only of the decree and may be exercised in favour of allor any of the respondents or parties, although such respondentsor parties may not have filed any appeal or objection and may,where there have been decrees in cross-suits or where two ormore decrees are passed in one suit, be exercised in respect of allor any of the decrees, although an appeal may not have been filedagainst such decrees:

Provided that the Appellate Court shall not make any order undersection 35A, in pursuance of any objection on which the Courtfrom whose decree the appeal is preferred has omitted or refusedto made such order.”

13. Upon a plain reading of Order XLI Rule 33 of the CPC, itreveals that the Appellate Court has the power to pass any decree ororder which ought to have been passed, and to pass such other decreeor order as the case may require. Notwithstanding that the appeal isagainst a part of the decree, this power may be exercised by the court infavour of all or any of the respondents although such respondent maynot have filed any appeal or objection. However, the said power must beexercised with caution or circumspection, particularly, in the absencethere being any cross objection or appeal filed by the respondents. Sucha power has to be exercised in exceptional cases when its non-exercisewill lead to difficulties in the adjustment of rights of the parties.

14. The aforesaid Rule does not confer unrestricted rights tointerfere with decrees which are not assailed merely because theappellate court does not agree with the opinion of the court appealedfrom. It is the duty of the appellate court to decide the appeal inaccordance with law. The appellate court must apply its judicial mind tothe evidence as a whole while deciding a case and a judgment on meritsshould not be lightly interfered with or reversed purely on technicalgrounds unless it has resulted in failure of justice.

15. In the instant case although the High Court has placed relianceon the judgment of this Court in Raj Kumar vs. Ajay Kumar – (2011) 1SCC 343, in our view it could not have reduced the percentage of functionaldisability from 50% to 20% when there was no challenge to the saidfinding arrived at by the Tribunal by an appeal or cross objection filed bythe Insurance Company and in the absence of recording justifiable reasons AB

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Afor doing so. As already stated, the injured appellant-claimant had filedthe appeal seeking enhancement in the quantum of compensation bycontending that he had suffered 70% disability to the particular parts ofhis body but the Tribunal had overlooked the same and had assesseddisability only at the rate of 50%. Instead of considering that contentionon merits, the High Court ignored the same and instead gave weightageBto the contentions of the respondent-Insurance Company which was tothe 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 docomplete justice to the parties. We find that the High Court was not rightCin its approach in the matter for the reason that the respondent – InsuranceCompany had not filed any appeal seeking reduction in the compensationamount awarded by the Tribunal and consequently, in the appeal filed bythe injured appellant-claimant, the contention of the Insurance Companyought not have been allowed by ignoring the plea of the appellant-claimantseeking enhancement in the compensation. The appellant-claimant couldDnot have been worse off than what had been granted to him by theTribunal, in an appeal filed by him seeking enhancement of compensation.

16. It is noted that Dr Pushkar Anand, Orthopaedic Surgeon atDistrict Hospital Hameerpur and Member of the Medical Board, hadopined that the appellant sustained partial stiffness in both his knees,Etoes 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 assessedat 70% and not disability of the whole body. The Tribunal, however,opined that the disability was only 50% as even the Doctor had admittedthat the appellant’s work would not be so badly affected as had been Fclaimed by him. The High Court, however, has reduced the percentageof disability to 20% only by opining that there was no shortening of thelower limbs and that stiffness of the joints in the feet could have beendue to injuries or disease viz., ‘Ankylosis’. But in fact, the appellant hadsustained fractures on both his lower limbs and hands.G17. We are of the view that the High Court was not justified inexercising its power under Order XLI Rule 33 of the CPC in the instantcase and reducing the compensation from Rs.5,42,633/- as awarded bythe Tribunal to Rs.3,26,833/- i.e. a total reduction of Rs.2,15,800/- in thecompensation amount. At the same time, the High Court awarded anadditional compensation under the heads of ‘attendant’ and ‘futureHtreatment’ charges.

SATYA PRAKASH DWIVEDI v. MUNNA ALIAS CHANDRABHANYADAV AND OTHERS [B V NAGARATHNA, J.]

18. In view of the above, we find it just and proper to restore theAcompensation i.e. Rs.5,42,633/- awarded by the Tribunal vide its judgmentand Award dated 01.07.2017, by setting aside the impugned judgmentand award passed by the High Court. We consequently direct therespondent-Insurance Company to pay the said compensation amountalong with interest thereon at the rate of 7% per annum from the date ofBfiling 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.

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21. Pending interlocutory applications, if any, stand disposed.

Ankit Gyan

Appeal allowed.

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