Rajasthan High Court – Jodhpur
Sbi General Insurance Co. Ltd vs Savitri Devi And Ors on 30 May, 2025
[2025:RJ-JD:24496]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 127/2018
SBI General Insurance Company Limited, Registered Office At
Natraj 101, 201, 301 Junction Of Western Express Highway And
Andheri - Kurla Road, Andheri East, Mumbai. Second Address-
Police Issuing Office Sbi General Insurance Company Ltd, Jaipur.
Insurance Company Of Tractor No. Rj-13-Ga-9486
----Appellant
Versus
1. Savitri Devi, W/o Shri Hariram,
2. Balwant Kumar S/o Shri Hariram,
3. Maya Devi D/o Shri Hariram,
4. Vinod Kumar S/o Hari Hariram,
5. Suman Devi D/o Shri Hariram, All Claimants 1 To 5 Are
Resident Of Chuk 13, S.D. Tehsil Suratgarh, District
Sriganganagar.
6. Umed Ali S/o Sharif Kaji, R/o Ward No. 1 Lakhuwali Tehsil
Rawatsar, District Hanumangarh, Rajasthan. Driver Of The
Insured Tractor RJ-13-GA-9486
7. Ismail Khan S/o Amar Sadique, R/o 9, R.P. Ranjeetpura,
Hanumangarh, Rajasthan. Owner Of The Insured Tractor
RJ-13-GA-9486
----Respondents
For Appellant(s) : Mr. Aditya Singhi
For Respondent(s) : None
Mr. Manish Pitaliya, Pro-Bono (as an
Intervener)
Ms. Reema Gupta (amicus curiae)
HON'BLE MR. JUSTICE ARUN MONGA
Order
Reportable
Pronounced on 30/05/20251
1. Aggrieved by the judgment and award dated 16.09.2017
rendered by learned Motor Accident Claims Tribunal,
1 Reserved on 19.05.2025
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Sriganganagar, (‘the Tribunal’) in MACT Case No.32/2014,
whereby it awarded a sum of Rs.9,48,296/- in favour of the
claimants, the appellant/Insurance Company is before this Court
seeking quashing of the same.
2. Brief facts first. On the ill fated afternoon of 08.09.2013, at
around 3:00 PM, Hariram was returning home from Suratgarh, self
driving his own Mahindra Jeep (bearing registration No.
RJ18UA2483). Pemaram (examined as AW/3) was sitting by his
side. While his family waited at home, unaware of the tragedy
about to unfold, little did even Hariram know that what was meant
to be a routine journey would become the last of his life. The road
meant to bring him home would instead lead to his untimely end.
When the jeep was about half a kilometer from Jankidas Bus
Stand towards Jaitsar, a pickup vehicle (RJ-13 GA-9486) being
driven at high speed and negligently by Umed Ali, came from the
opposite direction and collided with Hariram’s jeep. Impact was so
severe that he sustained fatal injuries and died instantaneously on
the spot. What had begun as an ordinary day ended in irreversible
loss, his two sons and two daughters left fatherless and spouse
befreft of her life partner–a void that time or money can never
truly heal.
2.1. Next day, an FIR bearing No. 60/2013, dated 09.09.2013
was lodged at the jurisdictional Police Station. The preliminary
investigation revealed Umed Ali to be at fault. The claimant-
respondents No. 1 to 5 filed petition before the Motor Vehicles
Claim Tribunal praying for compensation of Rs.23,32,000/-. It is
stated in the claim petition that at the time of the accident,
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Hariram was 45 years old and used to earn his livelihood through
agriculture, dairy farming, land and plot property transactions. He
was earning approximately Rs.15,000/- per month.
2.2. Non-applicants, the driver and the owner of the vehicle
(respondents No. 6 and 7 herein), jointly filed a reply denying the
allegations. They stated that the claimants had not submitted any
documents proving Hariram’s age or income. According to them,
the accident was not caused by their vehicle but occurred due to
Hariram’s own negligence. They claimed that Hariram was driving
his jeep rashly and first hit a tree, after which his vehicle collided
with the rear side of their stationary vehicle, resulting in injuries
that led to his death. They admitted that their vehicle was insured
at the time of the accident, but sought dismissal of the claim
petition.
2.3. The Insurance company (appellant herein), in its reply,
denied most of the averments due to lack of knowledge and stated
that liability would be determined on the basis of evidence. It
contended that at the time of the accident, the pickup vehicle
driver did not possess a valid and effective driving license, route
permit or fitness certificate. It also alleged that Hariram, who was
driving his own jeep, did not possess a valid driving license.
Therefore, there was a violation of the terms and conditions of the
insurance policy. Further, it was claimed that the insurance
company was not informed about the accident on account of
collusion between the vehicle owner and the claimants.
3. Learned tribunal framed four issues, translated version (as
provided) thereof is as below :
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“1. Whether the driver of the vehicle in question, pickup number
RJ 13 GA 9486, non-applicant No. 1, on 08.09.2013 at 8:15 PM,
while driving on the public road half a kilometer from Jankidas bus
stand towards Jaitsar, drove the said vehicle with negligence,
recklessness, and high speed, resulting in the accident that caused
injuries leading to the death of Hariram?
— Applicants
2. Whether the said vehicle driver was acting under the employment
of the vehicle owner, non-applicant No. 2, and working for their
interest and benefit?
— Applicants
3. Whether the claimant is entitled to receive the amount claimed in
the petition or any other just amount? If yes, how much amount,
from which non-applicant and in what manner can it be obtained?
— Applicants
3A. Whether the applicants, in light of the objections raised in the
response filed by the non-applicants, are not entitled to receive the
desired compensation amount?
— Non-applicants
4. Relief ?”
4. After analyzing the material available on record, the learned
tribunal decided all the issues in favour of the claimants and
against the non-applicants (appellant and respondents No. 6 and 7
herein) and awarded total compensation of Rs.9,48,296/- to the
claimants, along with interest at the rate of 8% per annum from
the date of filing the claim petition, i.e., 08.11.2013 and held the
respondents No. 6 and 7 and the appellant insurance company
jointly liable. Hence this appeal by the insurance company.
4.1. None appeared for the claimants-respondents No.1 to 5
despite service, though power of attorney on their behalf by an
authorized counsel is on record. In the premise, Ms. Reema Gupta
learned Advocate was appointed amicus curiae to assist the Court.
While the matter was being heard Mr. Manish Pitaliya, who
appears frequently in such like other miscellaneous appeals filed
against MACT awards offered to assist pro bono, as an intervener.
In the larger interest of justice, this Court accepted his
offer/request to assist.
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5. In the aforesaid backdrop, I have heard the contentions of
Mr. Aditya Singhi, learned counsel for the appellant, the
submissions of Ms. Reema Gupta learned amicus curiae and Mr.
Manish Pitaliya, learned Advocate as an intervener.
6. During arguments, a question of law was posed to all the
learned arguing counsel i.e. Whether, in the event of just and fair
compensation being found more than the amount awarded by the
learned Tribunal, can this Court, in the instant appeal, enhance
the amount compensation awarded by the learned Tribunal?
6.1. The response of the learned counsel for appellant was
emphatically in the negative. On this, the submissions by Ms.
Reema Gupta learned amicus curiae and Mr. Manish Pitaliya,
learned Advocate/intervener are that in the event of just and fair
compensation being found more than the amount awarded by the
learned Tribunal, this Court can, in the instant appeal, enhance
the amount compensation awarded by the learned Tribunal. More
of it in the succeeding paragraphs.
6.2. It is deemed necessary first to deal with the merits of the
impugned award to find out whether or not the compensation
awarded by the learned Tribunal is just and fair, before adverting
to question whether this Court, in the instant appeal by the
insurer, can enhance the compensation if the amount awarded by
the learned Tribunal is found grossly inadequate, unjust and
unfair, though the family members of the deceased did not or
could not afford to file any appeal or cross-objections for it’s
enhancement or else the this court has no such powers and the
only course available to it is simply to dismiss the insurer’s appeal.
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CONTENTIONS QUA MERITS OF THE AWARD
(ON BEHALF OF APPELLANT/INSURANCE COMPANY)
7. Arguments on behalf of appellant on merits of the award are
more or less on the same lines as the grounds taken in the
appeal. Learned counsel for the appellant-Insurance Company
argued that the impugned judgment and award dated 16.09.2017
is contrary to the facts, evidence on record and settled law. He
urged that the findings recorded by the learned Tribunal suffer
from gross factual errors and are, therefore, liable to be set aside.
7.1. He contended that the deceased did not die due to the
collision with the insured Pickup ‘Dala’ but because of his own
negligence, as he first hit a tree and thereafter collided with the
stationary vehicle. The learned Tribunal has overlooked this crucial
aspect. It has returned the finding in favour of the claimants
merely on assumptions, without appreciating the site plan. Hence,
the conclusion that the accident occurred due to the negligence of
the pickup driver is unsustainable.
7.2. The age of the deceased was wrongly taken as 49 years and
5 months without proper documentary proof. The driving license
on record indicates the date of birth of the deceased as
02.12.1961 i.e. 52 years at the time of the accident. Therefore,
the application of multiplier 13 instead of 11 is erroneous and the
finding on this question deserves to be modified by holding that
the age of the deceased was 52 years at the time of the accident.
7.3. That the monthly income of the deceased was wrongly
calculated as Rs.4,980/- by taking the daily wage rate of Rs.166/-
and multiplying it by 30 days. As per the Minimum Wages Act,
calculation should be based on 26 working days, which would
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make the monthly income Rs.4,316/-. Furthermore, the deceased
was an unskilled labourer, but the income was assessed for skilled
labour, which is factually incorrect.
7.4. That the Tribunal erred in adding 30% future prospects to
the assessed income despite the fact that the deceased was over
50 years old. Relying on the judgment of the Supreme Court in
National Insurance Co. Ltd. v. Pranay Sethi 2, it was urged
that future prospects are not to be added where the income is not
established or where the deceased is not self-employed or on a
fixed salary.
7.5. That the deduction towards personal expenses has also
been wrongly assessed. Claimant Nos.2 and 4, being major sons
while Maya Devi and Suman Devi were married daughters of the
deceased. Thus, they were not his dependents, and therefore,
there was only one dependent. Thus the deduction of one-third of
income for personal expenses is inappropriate and the dependency
loss has been wrongly calculated.
7.6. He would also submit that under the conventional heads,
the Tribunal has awarded inflated amounts. In light of the
judgment in Pranay Sethi, the compensation under the heads of
loss of estate, consortium, and funeral expenses should be
Rs.15,000/-, Rs.40,000/-, and Rs.15,000/-, respectively. However,
the Tribunal has awarded Rs.2,50,000/- towards love and affection
to each claimant, which is not permissible in law. Similarly,
Rs.25,000/- has been granted for funeral expenses, which exceeds
the permissible limit.
2 (2017) 16 SCC 680
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7.7. With these submissions, the learned counsel for the
appellant argued that the impugned award deserves to be set
aside and alternatively the amount of compensation awarded by
the learned Tribunal ought to be appropriately reduced. I am not
inclined to agree with him. Let us find out how.
DISCUSSION AND OPINION ON MERITS OF AWARD
8. On perusal of the impugned award and relevant record, it
transpires that the learned Tribunal relied upon the eye-witness
account given by AW/3 Pemaram. He stated that at the time of
accident, he was sitting by the side of Hariram who was driving his
jeep and that the death of the deceased Hariram occurred due to
the negligence and rash driving of vehicle Pickup Dala No.RJ-13-
GA-9486 by driver Ummed Ali. He came from the opposite
direction at high speed and hit Hariram’s jeep, causing injuries
that led to his death. He himself (Pemaram) also suffered injuries
and became unconscious due to the accident. The learned Tribunal
observed that the testimony of this witness remained unshaken in
cross-examination.
8.1. The learned Tribunal also referred to and relied upon
the FIR Ex.1, seizure memo of Pickup Dala Ex.6 showing that the
right side mirror of the pickup vehicle was broken, the right side
angle was bent, there were scratch marks, the rear right tyre rim
was bent, the entire right side was damaged, the right angle of
the Dala was bent, the rear tyre mudguard on the right side was
bent, and the rear iron pipe support was broken, and the right
side glass was fully scratched and broken. It also observed that
from the cumulative analysis of the site map, site inspection
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report, seizure memos, and mechanical inspection of Pickup ‘Dala’,
it is clearly evident that the accident occurred due to the
negligence and carelessness of the driver of the offending vehicle
Pickup Dala, who hit the jeep of deceased Hariram.
8.2. Learned Tribunal further held that if the pickup driver had
driven carefully, observing traffic rules, kept control over the
vehicle and applied brakes or sounded the horn or had not
suddenly swerved to the right side to avoid the broken patch of
road, the accident could have been avoided. There is no evidence
that the pickup driver took any such precautions. The
respondents, including the appellant herein, failed to lead any to
show that the deceased Hariram was negligent or careless in
driving or in anyway contributed to the accident. In their reply to
the claim application, the owner and driver of the pick up vehicle
as also the insurer appellant admitted the accident and the
involvement of the said offending vehicle in the accident.
9. To my mind also, in the given situation as aforesaid, the
learned Tribunal rightly held that the driver of the vehicle in
question i.e. the Pickup Dala, non-applicant No.1 (respondent
No.6 herein) drove the said vehicle with negligence, recklessness
and at high speed, resulting in the accident that caused injuries
leading to the death of Hariram. The appellant’s contention that
the deceased Hariram had caused or contributed to the negligence
by his negligence or carelessness is rejected.
9.1. The driving licence of respondent No.6 Ex. 14 valid from
04.07.2011 to 30.07.2014 shows that he was authorized to drive
MCY with gear, Light Motor Vehicle and also Transport Vehicle. This
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being the position, even if the offending vehicle fell in the category
of Transport Vehicle, there is no substance in the bald contention
on behalf of the appellant that the pick up vehicle did not fall
under the category of Light Motor Vehicle or that the driver having
license only to drive a Light Motor Vehicle was not authorized to
drive the offending pick up vehicle.
9.2. The learned Tribunal noted that in the claim petition and the
evidence of deceased’s son Balwant AW/1 and wife Savitri AW/2,
the age of the deceased Hariram at the time of the accident is
mentioned as 45 years. In the postmortem report (Exhibit 3), the
age is also recorded as 45 years. However, in the family ration
card submitted by the claimants (Exhibit 17), Hariram’s age is
mentioned as 37 years and this ration card appears to have been
issued on 15.04.2001, according to which the deceased’s age on
the accident date 08.09.2013 comes to approximately 49 years
and 5 months. Although counsel for non-claimants had argued
that the deceased’s date of birth is recorded as 02.12.1961 in the
driving license, making him about 52 years old at the time of
accident, no other evidence or document was submitted on behalf
of non-applicant No. 3 to prove the date of birth of the deceased
except referring to and solely relying upon the driving license of
the deceased. Pertinently, even in the instant appeal, no document
has been produced to show that the actual date of birth of the
deceased was 02.12.1961.
10. In such circumstances, I am of the view that the learned
Tribunal correctly appraised the oral and documentary evidence
led by the claimants, took a balanced and reasonable view and
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rightly concluded that at the time of accident the age of the
deceased was 49 years and 5 months and on that basis applied
appropriate multiplier of 13 (for age group 46 to 50 years) by
relying upon SarlaVerma vs. Delhi Transport Corporation3.
11. The learned Tribunal noted that claimants had pleaded and
led oral evidence showing that deceased Hariram used to do
agricultural work along with cattle rearing, and also engaged in
transactions of sale/purchase agricultural land and used to earn
Rs.15,000/- per month from all these activities, though no
documentary evidence has been presented to support the monthly
income of Rs.15,000/-. It also noted that the non-applicants had
not produced any rebuttal evidence to show that the deceased
was not earning this much income or any income at the relevant
time. It categorized the deceased as an unskilled laborer and basis
thereof assumed that he earned Rs.166/- per day or Rs.4,980/-
per month.
12. In my opinion there is absolutely no force, whatsoever, in
the contention of the appellant that the assessment of the
monthly income of the deceased at Rs.4,980/- was excessive.
13. To the contrary, the facts and circumstances suggest that
this assessment by the learned Tribunal of the monthly income of
the deceased at Rs.4,980/- is grossly low and unrealistic. Ex.C-4/5
is Registration certificate of Mahendra & Mahendra Jeep No. RJ-18-
UA-2483 (year of manufacture 1998) which was being driven by
Hari Ram deceased at the time of accident. It shows 19.01.2000
as the date of purchase of the new vehicle and bears an
endorsement for transfer of it’s ownership in the name of Hari
3 (2009) 6 SCC 121
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Ram on 31.12.2012. Thus it is borne out that he had purchased
the jeep (though used one) and was using and maintaining it for
personal use. Obviously, the family had a commensurate and fairly
comfortable standard of living. There is nothing on record to show
if any other dependent member of the family of deceased victim-
Hariram was earning at the time of his sudden death. He was the
head and the breadwinner of the family. These facts and
circumstances per se indicate that he had fairly good income for
buying the jeep (though used one) for personal use and
maintaining it, besides meeting the expenses of the family on
commensurate and reasonably comfortable standard of living. In
any case, his income must have been much more than Rs.4,980/-
per month assessed by the learned Tribunal, even if not
Rs.15,000/- as pleaded and supported by oral evidence led by the
claimants showing that deceased Hariram used to do agricultural
work along with cattle rearing, and also engaged in transactions of
sale/purchase agricultural land and used to earn Rs.15,000/- per
month from all these activities. Mere non-availability or non-
production of other documentary evidence to that effect would not
negate the reality of his income. On the date of his death, his age
was 49 years and 5 months. There is nothing on record to suggest
that the deceased had any disability or health problem impairing
his earning capacity. No evidence was led by the appellant and/or
the owner and driver of the offending vehicle to rebut the
claimants’ evidence about the income of the deceased.
13.1. In the given facts and circumstances, taking an overall
view of the matter, to my mind, even on a conservative estimate,
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the monthly income of the deceased at the relevant time was not
less than Rs.12,000/- per month and the same ought to be taken
as the basis for computing the compensation amount.
13.2. The deceased was doing agricultural work along with
cattle rearing and also engaged in transactions of sale/purchase
agricultural land and was thus self-employed. Relying upon
Rajesh v. Rajbir Singh4, the learned Tribunal added 30% of the
assessed income for future prospects and increase of income. The
same is in consonance with the facts of the case and the relevant
applicable formula, warranting no interference on that count.
Pertinently, though a subsequent Constitution Bench in Supreme
Court in Pranay Sethi (supra) held that future prospects of a self-
employed deceased, who was between age of 40 to 50 years, by
reasonable test is 25%. However, the said test, as held by the
Constitution Bench itself, is a degree test and is to be applied
based on the variables as per the evidence adduced by the
parties. In the present case, I see no reason to differ/interfere
with the addition of future prospects of 30%, as determined by
the learned Tribunal, which appears to be fair and reasonable a
per record.
14. Hariram died in the accident on 08.09.2013. At the time of
filing the claim petition on 18.11.2013, both his sons Balwant
Kumar and Vinod Kumar respondents No.2 & 4 (claimants) were
in their mid-twenties and his two daughters Maya Devi and Suman
Devi (respondent-claimants No.3 & 5) were married. It is not
shown if the sons of Hariram had any source of own income for
their sustenance. In such situation, even though their father was
4 (2013) 9 SCC 54
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not legally bound to maintain them, yet, it is unlikely that he
would totally neglect or refuse to support them, at least, till they
could themselves start earning. Irrespective of that, considering
the size and overall composition of the family and the overall
obligations of the deceased as it’s head, I am of the opinion that
the deduction of 50% of the income for his personal expenses
would be reasonable, just and fair.
15. In Magna General Insurance Co. Ltd. Vs. Nanu Ram 5,
the Apex Court awarded compensation separately to each of
family members of the deceased for loss of consortium. Here, the
unfortunate widow and four children of the deceased are the
claimants. I am therefore, of the opinion that each one of them is
separately entitled to the amount of compensation for loss of
consortium.
16. In the light of above discussion, I am of the opinion that the
just and fair compensation payable works out to Rs.14,46,800/-
as calculated below:
Name of the deceased Hari Ram
Date of accident/death 08.09.2013
Age of the deceased on date 49 years 5 month
accident/death
Income of the deceased as on date Rs.12,000/-
accident/death (Per Month)
Add 30% for future Rs.3,600/-
prospects/increase of income as
self-employed person
Notional income for computing Rs.15,600/-
compensation for loss of earnings
(Per Month)
Deduct half of earnings for personal Rs.7,800/-
5 (2018) 18 SCC 130
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expenses of deceased (Per Month)
Loss of dependency (Per Month) Rs. 7,800/-
Applicable multiplier 13
Total compensation for loss of Rs.12,16,800/-
dependency 7,800x12x13
For loss of consortium @ Rs. Rs.2,00,000/-
40,000/- to each of five claimants
Funeral expenses loss of estate Rs.15,000/-
For loss of estate Rs.15,000/-
Total amount of compensation Rs.14,46,800/-
16.1. However, the learned Tribunal calculated and awarded a
total compensation of Rs.9,48,296/-as under:
1. For loss of dependency: Rs.6,73,296/-
2. For loss of love, affection, care @ Rs.2,50,000/-
Rs.50,000/- per applicant
3. For funeral and transportation Rs.25,000/-
4. Total compensation awarded Rs.9,48,296/-
17. Thus, the compensation of Rs.9,48,296/- awarded by the
learned Tribunal is considerably less than the just and fair
compensation of Rs.14,46,800/- calculated as above. The
additional compensation payable to the claimants, over and above
the amount already awarded by the learned Tribunal, will be
Rs.4,98,504/- (14,46,800/- minus 9,48,296/- =4,98,504/-).
SUBMISSIONS ON THE POWERS OF THE APPELLATE
COURT/HIGH COURT TO ENHANCE COMPENSATION IN THE
INSURER’S APPEAL
18. Now reverting to the question whether this Court in appellate
jurisdiction can enhance the amount of compensation when the
appeal has been filed by the insurer for dismissal of the claim
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petition and alternatively for reduction of the amount of
compensation and the respondent-claimants have not filed any
appeal or cross-objections. While learned counsel for the
Insurance Company would oppose any enhancement of
compensation in the absence of cross appeal, however, per contra,
learned amicus curiae would submit that non-filing of cross-appeal
is not a hindrance in the powers vested with the appellate Court.
Let us analyze the position of law vis-a-vis the rival contention.
ARGUMENTS ON BEHALF OF INSURANCE COMPANY/APPELLANT
19. Mr. Aditya Singhi urges that ultimate principle of law evolved
is thus very clear, that in an appeal under the Motor Vehicle Act, if
the compensation determined by the High Court is higher than the
compensation awarded by the Tribunal, the High Court will allow
the appeal, if it is by the claimants and dismiss the appeal, if it is
by the owner/insurer. Similarly, if the compensation determined by
the High Court is lesser than the compensation awarded by the
Tribunal, the High Court will dismiss any appeal by the claimants
for enhancement, but allow any appeal by owner/insurer for
reduction. The High Court cannot obviously increase the amount
of compensation in an appeal by owner/insurer for reducing the
compensation, nor can it reduce the compensation in an appeal by
the claimants seeking enhancement of compensation.
ARGUMENTS BY AMICUS CURIAE
20. Ms, Reema Gupta, Learned amicus curiae would argue that
the Motor Vehicles Act, 1988, is a beneficent legislation and
therefore, it must be liberally interpreted in such a way so as to
enable the Court to assess and award “Just Compensation”.
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20.1. She would urge that the Court, while exercising its
appellate jurisdiction, cannot remain a passive spectator or feel
constrained from addressing manifest injustice merely because the
claimant, in the petition before the Tribunal, sought compensation
lower than what is just and fair, or because–having been awarded
a lesser amount–was unable to file an appeal or cross-objections
for enhancement, or, as in the present case, was not in a position
to contest the insurer’s appeal. The true object and purpose of
Order XLI Rule 33 of the Code of Civil Procedure is to empower
the Court to do complete justice and rise above procedural
limitations in appropriate cases. This duty becomes even more
imperative where the victims or claimants in motor accident cases
are granted compensation below what is legally and equitably due
to them.
21. Mr. Manish Pitaliya, would also support the stand taken by
learned Amicus Curiae as noted above.
DISCUSSION AND ANALYSIS
22. Law cannot bring back human life once lost nor can it, how
so ever robust the statutory provisions, fully erase the trauma or
reverse the debilitating impact of a grievous injury/disability
suffered by a victim in a motor accident. The value of human life
is beyond estimation, and the agony of a permanent disability the
pain, trauma, and indignity endured by the victim is
immeasurable. Neither the suffering of the victim nor the
devastation wrought upon their loved ones can be adequately
redressed in monetary terms.
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22.1. In the tragic event of sudden accidental death, the
emotional devastation, moral void, and deprivation inflicted upon
the victim’s family members or legal heirs cannot thus be
measured or compensated in terms of money. No amount of
financial assistance can truly replace the irreplaceable. However,
in an earnest attempt to provide some semblance of relief, to
alleviate the hardship, and to address, in part, the financial and
emotional vacuum caused by such irreparable loss, the Motor
Vehicles Act, 1988 incorporates specific provisions for the award of
monetary compensation. Intent of these statutory provisions is to
serve as a legal acknowledgment of the enduring loss suffered,
both by the victim and their bereaved family.
22.2. At this stage, reference may be had to Supreme Court
judgment rendered in Syed Mehboob v. New India Assurance
Co. Ltd.6 wherein it was held that the Act ibid is a beneficent
legislation intended to place the claimant, as far as possible in
financial terms, in the same position that he was before the
accident and compensate him/his legal representatives for the
loss. Thus, it should be interpreted liberally so as to achieve the
maximum benefit.
23. Keeping in mind the above position, now let us have a look
at the relevant provisions of Sections 166, 168 and 173 of the Act
as also Order 41 Rule 33 of the Code of Civil Procedure. For ready
reference, the same are reproduced below:
“166. Application for compensation.–
6 (2011) 11 SCC 625
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[2025:RJ-JD:24496] (19 of 28) [CMA-127/2018](1) An application for compensation arising out of an accident of
the nature specified in sub-section (1) of section 165 may be made–
(a) by the person who has sustained the injury; or
(b) by the owner of the property; or
(c) where death has resulted from the accident, by all or any of the
legal representatives of the deceased; or
(d) by any agent duly authorised by the person injured or all or any of
the legal representatives of the deceased, as the case may be:
Provided that where all the legal representatives of the
deceased have not joined in any such application for compensation,
the application shall be made on behalf of or for the benefit of all the
legal representatives of the deceased and the legal representatives who
have not so joined, shall be impleaded as respondents to the
application.
(2) Every application under sub-section (1) shall be made, at the
option of the claimant, either to the Claims Tribunal having
jurisdiction over the area in which the accident occurred or to the
Claims Tribunal within the local limits of whose jurisdiction the
claimant resides or carries on business or within the local limits of
whose jurisdiction the defendant resides, and shall be in such form and
contain such particulars as may be prescribed: Provided that where no
claim for compensation under section 140 is made in such application,
the application shall contain a separate statement to that effect
immediately before the signature of the applicant.
Sub-section (3) omitted by s. 53, ibid. (w.e.f. 14-11-1994).
(4) The Claims Tribunal shall treat any report of accidents
forwarded to it under sub-section (6) of section 158 as an application
for compensation under this Act.
168. Award of the Claims Tribunal.-
(1) On receipt of an application for compensation made under
section 166, the Claims Tribunal shall, after giving notice of the
application to the insurer and after giving the parties (including the
insurer) an opportunity of being heard, hold an inquiry into the claim
or, as the case may be, each of the claims and, subject to the provisions
of section 162 may make an award determining the amount of
compensation which appears to it to be just and specifying the person
or persons to whom compensation shall be paid and in making the
award the Claims Tribunal shall specify the amount which shall be
paid by the insurer or owner or driver of the vehicle involved in the
accident or by all or any of them, as the case may be:
Provided that where such application makes a claim for
compensation under section 140 in respect of the death or permanent
disablement of any person, such claim and any other claim (whether
made in such application or otherwise) for compensation in respect of
such death or permanent disablement shall be disposed of in
accordance with the provisions of Chapter X.
(2) The Claims Tribunal shall arrange to deliver copies of the
award to the parties concerned expeditiously and in any case within a
period of fifteen days from the date of the award.
(3) When an award is made under this section, the person who is
required to pay any amount in terms of such award shall, within thirty
days of the date of announcing the award by the Claims Tribunal,
deposit the entire amount awarded in such manner as the Claims
Tribunal may direct.
173. Appeals.–
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[2025:RJ-JD:24496] (20 of 28) [CMA-127/2018]
(1) Subject to the provisions of sub-section (2), any person
aggrieved by an award of a Claims Tribunal may, within ninety days
from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay
any amount in terms of such award shall be entertained by the High
Court unless he has deposited with it twenty-five thousand rupees or
fifty per cent. of the amount so awarded, whichever is less, in the
manner directed by the High Court:
Provided further that the High Court may entertain the appeal
after the expiry of the said period of ninety days, if it is satisfied that
the appellant was prevented by sufficient cause from preferring the
appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the
amount in dispute in the appeal is less than ten thousand rupees.
Code of Civil Proecedure:
“Order 41 Rule 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 1 [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
make such order.”
24. It would be seen that Section 166 of the Act does not even
require the claimant to mention in the application the specific
amount of compensation claimed. Further, Section 168 mandates
the Tribunal to make an award determining the amount of
compensation which appears to it to be just. Thus, it seems that
where the claimant does not even mention in the application the
specific amount of compensation claimed, still as per mandate of
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[2025:RJ-JD:24496] (21 of 28) [CMA-127/2018]
the Act, the Tribunal is required to make an award determining the
amount of compensation which appears to it to be just.
25. In present case, prayer in the claim application was for
compensation of Rs.23,32,000/-. The just and fair compensation
payable is Rs.14,46,800/- as determined above, which is less than
the amount prayed for in the claim application. Thus, no question
actually arises herein for adjudication as whether or not the
Tribunal or this Court in appeal can also award higher
compensation than the amount prayed for in the claim application.
That academic question is left open to be decided in appropriate
proceedings.
26. In Sharanamma and Ors. Vs. M.D. Divisional Contr.
Nekrtc7, the Apex Court held that Section 173 of the Act reflects
that there is no curtailment or limitation on the powers of
Appellate Court to consider the entire case on facts and law.
27. Adverting now to Rule 33 of Order 41, CPC. It provides that
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.
28. In Surekha & Ors v. Santosh & Ors.8, the High Court had
agreed with the stand of the appellants that just compensation
7 (2013) 11 SCC 517
8 (2021) 16 SCC 467
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[2025:RJ-JD:24496] (22 of 28) [CMA-127/2018]
amount ought to be Rs.49,85,376/-, which was higher than that
awarded by the Tribunal. However, it had declined to grant the
enhancement merely on the ground that the appellants had failed
to file cross-appeal. A three-Judge Bench of the Apex Court held
that by now it is well settled that in the matter of insurance claim,
compensation in reference to motor accident, the court should not
take hypertechnical approach and ensure that just compensation
is awarded to the affected person or the claimants. Resultantly,
even though the appellants had not filed cross-appeal for
enhancement of compensation, the Apex Court in exercise of it’s
Civil Appellate jurisdiction modified the order passed by the High
Court by enhancing and determining that the compensation
amount payable in the case to be Rs.49,85,376/-.
29. The same sentiments are echoed in the judgment of
Supreme Court titled Jitendra Khimshankar Trivedi v. Kasam
Daud Kumbhar9, wherein it was observed that “As against the
award passed by the Tribunal even though the claimants have not preferred
any appeal and even though the claimants have then prayed for compensation
of Rs.2,96,480/- for doing complete justice to the parties, exercising
jurisdiction under Article 142 of the Constitution of India, we deem it
appropriate to award enhanced compensation of Rs.6,47,000/- to the
claimants.”
30. Au contraire, learned counsel for the appellant-insurance
company has relied upon the judgment rendered in Ranjana
Prakash Vs. Divisional Manager10 holding therein that in an
appeal under the Motor Vehicles Act, challenging the quantum of
9 (2015) 4 SCC 237
10 (2011) 14 SCC 639
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[2025:RJ-JD:24496] (23 of 28) [CMA-127/2018]
compensation irrespective of who files the appeal, the appropriate
course for the High Court is to examine the facts and by applying
the relevant principles, determine the just compensation; and that
if the compensation determined by it is higher than the
compensation awarded by the Tribunal, the High Court will allow
the appeal if it is by the claimants; and dismiss the appeal if it is
by owner/insurer; and that similarly if the compensation
determined by the High Court is lesser than the compensation
awarded by the Tribunal, the High Court will dismiss the appeal by
the claimants for enhancement, but allow the appeal by
owner/insurer for it’s reduction; and that the High Court cannot
obviously increase the compensation in an appeal by
owner/insurer for reducing the compensation, nor can it reduce
the compensation in an appeal by the claimants seeking
enhancement of compensation.
30.1. Learned counsel for the appellant would also fairly point
out that the question whether High Court can enhance the
compensation awarded, in its appellate jurisdiction, in the light of
Ranjana Prakash (supra), is also pending in SLP No.14319/2020
before a Larger Bench of Supreme Court.
30.2. For ready reference, paras 7 and 8 of the judgment ibid
are reproduced hereunder:
“7. This principle also flows from Order 41 Rule 33 of the Code of
Civil Procedure which enables an appellate court to pass any order
which ought to have been passed by the trial court and to make such
further or other order as the case may require, even if the respondent
had not filed any appeal or cross-objections. This power is entrusted to
the appellate court to enable it to do complete justice between the
parties. Order 41 Rule 33 of the Code can however be pressed into
service to make the award more effective or maintain the award on
other grounds or to make the other parties to litigation to share the
benefits or the liability, but cannot be invoked to get a larger or higher(Downloaded on 27/06/2025 at 09:29:02 PM)
[2025:RJ-JD:24496] (24 of 28) [CMA-127/2018]relief. For example, where the claimants seek compensation against
the owner and the insurer of the vehicle and the Tribunal makes the
award only against the owner, on an appeal by the owner challenging
the quantum, the appellate court can make the insurer jointly and
severally liable to pay the compensation, along with the owner, even
though the claimants had not challenged the non-grant of relief
against the insurer. Be that as it may.
8. Where an appeal is filed challenging the quantum of
compensation, irrespective of who files the appeal, the appropriate
course for the High Court is to examine the facts and by applying the
relevant principles, determine the just compensation. If the
compensation determined by it is higher than the compensation
awarded by the Tribunal, the High Court will allow the appeal, if it is
by the claimants and dismiss the appeal, if it is by the owner/insurer.
Similarly, if the compensation determined by the High Court is lesser
than the compensation awarded by the Tribunal, the High Court will
dismiss any appeal by the claimants for enhancement, but allow any
appeal by the owner/insurer for reduction. The High Court cannot
obviously increase the compensation in an appeal by the owner/insurer
for reducing the compensation, nor can it reduce the compensation in
an appeal by the claimants seeking enhancement of compensation.”
30.3. It would be seen that in para 7 ibid, the Hon’ble
Supreme Court clearly observed/held that Order 41 Rule 33 CPC
enables an appellate court to pass any order which ought to have
been passed by the trial court and to make such further order as
the case may require, even if the respondent had not filed any
appeal or cross-objections and this power is entrusted to the
appellate court to enable it to do complete justice between the
parties. However, in the very next sentence in the same para, it is
also observed that Order 41 Rule 33 of the Code can be pressed
into service to make the award more effective or maintain the
award on other grounds or to make the other parties to the
litigation to share the benefits or the liability, but cannot be
invoked to get a larger or higher relief. Further, in para 8 ibid, it is,
inter alia, held that the High Court cannot increase the
compensation in an appeal by the owner/insurer for reducing the
compensation, nor can it reduce the compensation in an appeal by
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[2025:RJ-JD:24496] (25 of 28) [CMA-127/2018]
the claimants seeking enhancement of compensation. With all due
deference, it may respectfully be noted here that there is no
further discussion, reasoning or analysis recorded in the judgment
ibid for holding that the High Court cannot increase the
compensation in an appeal by the owner/insurer for reducing the
compensation, nor can it reduce the compensation in an appeal by
the claimants seeking enhancement of compensation, even though
Order 41 Rule 33 is self speaking and its plenary language enables
an appellate court to pass any order which ought to have been
passed by the trial court and to make such further order as the
case may require though the respondent had not filed any appeal
or cross-objections. Thus, the position as stated in the judgment
ibid seems somewhat ambiguous.
31. Irrespective and dehors the discussion in preceding
paragraphs, I am in any case of the opinion that the judgment in
Ranjana Prakash (supra) does not help the appellant in the face of
the view taken in the judgment rendered by a larger bench of the
Apex Court in Surekha (supra), which hits the nail on the head.
Therein it is held that by now it is well settled that in the claim for
compensation in reference to motor accident, the court should not
take hyper-technical approach and should ensure that just
compensation is awarded to the affected person or the claimants.
While holding so, the three judge bench of the Apex Court, in
exercise of it’s Civil Appellate jurisdiction modified the order
passed by the High Court and by determining that the enhanced
compensation amount payable in the case was to be Rs.
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[2025:RJ-JD:24496] (26 of 28) [CMA-127/2018]
49,85,376/- even though the appellants had not filed cross-appeal
for enhancement of compensation.
31.1. At the cost of repetition, it is re-iterated that Rule 33 of
Order 41 CPC provides that 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 in favour of all or any of the respondents or parties,
although such respondents or parties may not have filed any
appeal or objection. As held in Syed Mehboob (supra), the Act ibid
is a beneficent legislation intended to place the claimant, as far as
possible in financial terms, in the same position that he was before
the accident and compensate him/his legal representatives for the
loss. Thus, it should be interpreted liberally so as to achieve the
maximum benefit.
32. It is evident from the above discussion that the substantive
law is for award of just compensation to the persons adversely
affected by the accident.
33. Trite it may sound but procedure is only a handmaid of
justice and rules of procedure cannot thwart or defeat the
substantive law.
34. To sum up, answer to the question of law as framed in para 6
is clearly in the affirmative. The language used in Order 41 Rule
33, CPC is quite unambiguous, inasmuch as, what has to be done
in case of exercise of the appellate jurisdiction of the Courts seized
of the matter is the power to pass any decree and make any order,
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[2025:RJ-JD:24496] (27 of 28) [CMA-127/2018]
which ought to have been passed by the original court i.e. trial
court. Thus there are no fetters imposed on it i.e. whether or not
there is any cross appeal and/or any cross-objection. Even if in
the relevant procedural provisions there is anything ambiguous or
inconsistent with the substantive statutory provisions, it seems
that those procedural provisions cannot obstruct, thwart or defeat
the substantive law which in cases of this nature mandates the
award of just compensation in discharge of real justice.
35. As a result of above discussion, I am of the considered
opinion that in an appropriate case, the High Court in exercise of
it’s appellate jurisdiction can enhance the amount of compensation
when the appeal has been filed by the insurer for dismissal of the
claim petition and/or for reduction of the amount of compensation
and the respondent-claimants have not filed any appeal or cross-
objections for enhancement of compensation.
36. In the given facts and circumstances of the present case, it
is a fit case where this Court in exercise of it’s appellate
jurisdiction should enhance the amount of compensation and
award the just compensation of Rs.14,46,800/-as
calculated/determined above, by modifying the award of the
learned Tribunal. It is ordered accordingly.
37. The amount of enhanced compensation, with interest as
awarded by the learned Tribunal, after adjustment of payment
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[2025:RJ-JD:24496] (28 of 28) [CMA-127/2018]
if any already made, be apportioned amongst respondents No. 1
to 5 as follows:
1. Savitri Devi, W/o Shri Hariram 80%
2. Balwant Kumar S/o Shri Hariram 5%
3. Maya Devi D/o Shri Hariram 5%
4. Vinod Kumar S/o Hari Hariram 5%
5. Suman Devi D/o Shri Hariram 5%
38. Before parting, the Court records its appreciation for
Ms.Reema Gupta, the appointed learned amicus curiae and for Mr.
Manish Pitaliya, Advocate who assisted the Court pro bono, for
devoting their valuable time and energy and providing useful
inputs and able assistance for deciding the case.
39. Disposed of with observations, as above.
40. Pending application(s), if any, shall also stand disposed of.
41. Copy of this order be conveyed free of cost to respondents
No.1 to 5/claimants by Registry of this Court to enable them to
take further steps in accordance with law.
(ARUN MONGA),J
365-Jitender/SP
Whether Fit for Reporting:- Yes / No
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