The appellate court must exercise caution under Order XLI Rule 33 of the CPC, particularly when altering compensation without a challenge from the opposing party.

JUDGMENT :

B.V. Nagarathna, J

1. Leave granted.

2. The appellant was injured in a road traffic accident. He has filed this appeal, being aggrieved by the impugned judgment and award dated 28.01.2021 passed by the Allahabad High Court in First Appeal from Order No.3182 of 2017 by which the High Court dismissed the said appeal filed by the him and reduced the compensation amount from Rs.5,42,633/-to Rs.3,26,833/-on the premise that the Motor Accident Claims Tribunal (for the sake of convenience, the ‘Tribunal’) had arbitrarily construed functional disability at the rate of 50% without any evidence to that effect. The High Court deemed it appropriate to assess 20% functional disability inasmuch as it was nowhere mentioned that the disability was permanent in nature and was irreversible.

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

4. Succinctly stated the facts are that the appellant -claimant while riding on his motorcycle bearing Registration No.UP93H-5532 met with an accident at about 6.30 p.m. on 30.10.2002 when a Truck, bearing Registration No.UP32Z-2570, came on the wrong side of the road and collided against the appellant-claimant, as a result of which he sustained grievous injuries. Although the appellant-claimant underwent treatment for about 470 days, he was rendered disabled. He was 32 years of age at the time of accident and was running a canteen and said to be earning Rs.10,000/-per month. Appellant filed a claim petition seeking compensation of Rs.17 lakhs along with interest at the rate of 17% per annum from the date of filing of claim petition till the date of actual payment on account of grievous injuries sustained by him in the accident.

5. It is pertinent to mention that the Tribunal initially awarded compensation of Rs.6,03,000/-along with 7% interest per annum from the date of judgment till actual payment vide its Award dated 30.10.2006 passed in Motor Accident Claim Petition No.299 of 2002. Being aggrieved by the said Award, the respondent – Insurance Company approached the High Court by filing First Appeal from Order No.293 of 2007. By order dated 03.12.2015, the High Court set aside the Award dated 30.10.2006, except the finding recorded by the Tribunal that the accident had actually taken place, allowed the said appeal and remanded the matter to the Tribunal for decision afresh in light of the observations made in the said order.

6. On remand, the Tribunal passed the judgment and order dated 01.07.2017 awarding compensation of Rs.5,42,633/-along with interest at the rate of 7% per annum from the date of filing the petition till the date of actual payment by accepting the permanent disability to the extent of 50% to that particular part of the body and taking into account his income as Rs.54,000/-per annum. The Tribunal also applied multiplier of 15 in calculating the future loss and also awarded compensation on other heads. Not being satisfied with the said Award, the appellant-claimant filed an appeal being First Appeal from Order No.3182 of 2017.

7. By the impugned judgment dated 28.01.2021, the High Court construed functional disability at the rate of 20% rather than 50% as assessed by the Tribunal, assessed the age of claimant to be above 35 years and by applying the multiplier of 15, computed