Appellate Courts Empowered To Grant ‘Just Compensation’ Even Without Cross Appeal: Jammu & Kashmir And Ladakh High Court
The Court held that the appellate powers under Order 41 Rule 33 CPC are wide enough to enhance compensation to claimants to ensure “just” relief, even in the absence of a cross appeal or cross objections.
The High Court of Jammu & Kashmir and Ladakh has held that under Order 41 Rule 33 of the Code of Civil Procedure appellate courts possess wide powers to ensure 'just compensation', even where the claimant has not filed a cross appeal or cross objections .
The High Court was hearing an appeal filed by an insurance company challenging an award of the Motor Accidents Claims Tribunal, which had granted compensation to the family members of a deceased person who died in a tractor accident.
A Bench comprising Justice Sanjay Dhar while adjudicating the matter observed that “…the powers of appellate court are wide and provisions contained in Order 41 Rule 33 of the Code of Civil Procedure empower the appellate court to pass any order, which may include allowing or refusing the appeal but it may also include such other relief to the respondents as the case may require."
Advocate Baldev Singh appeared for the appellant-insurance company, while Advocate Suneel Malhotra represented the respondents.
Background
The deceased, who also happened to be the son of the insured, met with an accident while travelling in a tractor used for loading and unloading, resulting in his death. His family members filed a claim petition seeking compensation, claiming that he was engaged as a labourer.
The insurance company contested the claims, raising several objections. It argued that the deceased was the son of the insured and therefore not a “third party” within the meaning of the Motor Vehicles Act. It further contended that he was travelling as a gratuitous passenger and that the driver of the vehicle, who was not impleaded as a party, had no valid driving licence.
The Tribunal rejected these objections and awarded compensation to the claimants. Aggrieved, the insurer filed an appeal before the High Court.
Court’s Observations
The J&K and Ladakh High Court rejected the contention that the deceased, being the son of the insured, could not be treated as a third party. It was observed that the claim petition had not been filed by the insured but by other family members against the owner-father and the insurer. Under such circumstances, the Court observed, there was no legal bar to treating the deceased as a third party under Section 145 of the Motor Vehicles Act.
“In the present case, the claim petition has been filed by mother and brother of the deceased against the insured who, even though happens to be the father of the deceased, is vicariously liable for the negligence of his employee, the driver of the offending vehicle. The claimants, therefore, are well within their rights to maintain the claim petition against respondent No. 3, the insured as also against the appellant-Insurance Company, the insurer of the offending vehicle”, the Court remarked.
Addressing the objection regarding non-joinder of the driver, the Court held that the driver is not a necessary party in a claim petition and that the Tribunal had made repeated attempts to secure his presence. The absence of the driver, therefore, could not vitiate the award. Dismissing this contention of the appellant as one without merit, the court held that “Driver of the offending vehicle may be a proper party but if the driver is not impleaded as a party to the claim petition, the award passed in the claim petition does not vitiate.”
Furthermore, highlighting that even in the absence of a cross-appeal by the claimants, appellate courts are duty-bound to ensure just compensation, the Court noted that “If we have a look at the provisions contained in Section 168 of Motor Vehicles Act, a Tribunal constituted under the said Act is obliged to award “just” compensation in favour of a claimant. It is the duty of the Tribunal to award “just” compensation and, therefore, this Court in exercise of its appellate powers is also under a duty to award “just” compensation in favour of a claimant even in the absence of cross-appeal/cross-objections by the claimant.”
On the argument that the deceased was a gratuitous passenger, the Court noted that evidence, including the police challan, clearly established that he was working as a labourer at the time of the accident. Thus, the deceased could not be categorised as a gratuitous passenger.
Conclusion
Dismissing the insurer’s appeal, the High Court modified the award of the Tribunal by enhancing the total compensation and directed the insurance company to deposit the enhanced amount with interest. All other terms of the Tribunal’s award were left unaltered.
Cause Title: Bajaj Allianz General Insurance Co. Ltd. v. Noor Begum & Ors.
Appearances
Appellant: Advocate Baldev Singh
Respondents: Advocate Suneel Malhotra