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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & SMT. SADHANA S. JADHAV, JJ.
National Insurance Co. Ltd.
Vs.
Ms. Vaishali Harish Devare & Ors.
First Appeal No.1068 of 2012
Decided on : 31st August, 2012
Appeal from original decree, can be heard by Single Judge provided two conditions specified in sub-clause (a) are satisfied. - On plain reading of sub-clause (a) of Rule 2 of Appellate Side Rules, it is apparent that the appeal from original decree can be heard by the Single Judge provided following two conditions are satisfied :
(a) Value of the subject-matter in dispute in the Court or before the Tribunal of the first instance does not exceed a sum of Rs. 50,00,000/- and;
(b) Wherein the value of the subject-matter still in dispute on Appeal is Rs. 50,00,000/- or less.
Unless both the conditions are satisfied, the appeals from the original decree in suits or from adjudication in other proceedings from which appeals lie to the High Court cannot be heard and disposed of by the Single Judge. Even if one of the two conditions is not satisfied by virtue of Rule 1 of Chapter I, the appeal will have to be placed before a Division Bench.
Motor Vehicles Act, 1988 - Sections 166 and 168 - Just compensation.
Amounts which were paid to deceased by way of perks to be taken into consideration for computation of monthly income of deceased. - Thus, the well-settled position of law is that the amounts which were paid to the deceased by way of perks should be taken into consideration for computation of monthly income provided the perks were for the benefit of the family of the deceased. However, the allowances which were meant only for his personal benefit cannot be taken into consideration. The income-tax will have to be deducted from the income while arriving at the income for determining multiplicand.
Due to absence of any evidence adduced by the first respondent to show that the Uniform Making Allowance, Uniform Washing Allowance, Transport Allowance, Conveyance, Medical Expenses were for the benefit of the family, the same cannot taken into consideration for computing the loss of dependency. As far as the Academic Research Allowance is concerned, the same is payable as a perk apart from the basic salary. As suggested by the very name, it was not payable to the deceased by way of reimbursement of expenditure incurred by him. Hence, the benefit thereof was available not only to the deceased but also to his family members. Therefore, the said amount will have to be taken into consideration and will have to be added to the basic salary of Rs. 31,950/-. Thus, the gross salary comes to Rs. 34,950/- which can be rounded off to Rs. 35,000/-.
Motor Vehicles Act, 1988 - Sections 166 and 168 - Just compensation.
Future prospects of increase in earnings of deceased to be taken into consideration for purpose of calculating income for determining multiplicand. - Hence, future prospects of increase in the earnings of the deceased will have to be taken into consideration for the purpose of calculating the income for determining multiplicand. There is evidence on record to show that there were such prospects. In the present case, the deceased was in the employment of the same company from July 1998. In the evidence of Chartered Accountant, he has stated that the income of the deceased for the assessment year 2000-2001 was Rs. 1,53,000/- and the income for the assessment year 2001-2002 was Rs. 3,17,500/-. He stated that the gross salary for the period from 1st April, 2001 to 24th August, 2001 was Rs. 2,03,750/-. Court has already found that there is hardly any cross- examination on the point of figures borne out from the documents on record. Thus, the documents show that at least for last three years there was steady rise in the income of the deceased.
Motor Vehicles Act, 1988 - Sections 166 and 173 - CPC, 1908, Order XLI, Rule 33 - Appeal against quantum of compensation.
Court, while deciding appeal, required to adjudicate whether compensation granted by Tribunal is a just compensation and such adjudication can be made even without taking recourse to Rule 33 of Order XLI of Code. - It cannot be disputed that appeal being under Section 173 of M.V. Act, the provisions of the CPC will have application to the appeal. An Appellate Court under the said Code while deciding an appeal against original decree has wide powers. The Appellate Court can exercise all the powers of the Court of first instance and can do everything which the Court of first instance could have done.
It is well-settled that this being appeal against the Award made on the claim petition under Section 166 of the said Act, it is a continuation of the original claim petition. The claim petition filed under Section 166 of M.V. Act is not in the nature of a suit. Under Section 168 of the said Act, the Tribunal is duty bound to hold an inquiry to determine the amount of compensation which appears to be just. Thus, the concept of just compensation has been incorporated in Section 168 of the said Act. It is well-settled that the Tribunal constituted under the said Act is not bound by the strict rules of the evidence.
As stated earlier, the claim petition under Section 166 is not a suit. While deciding the claim petition, the Tribunal is under an obligation to determine just compensation payable to the Claimants. This appeal being the continuation of the claim petition, even the Court is under an obligation to determine the just compensation payable to the claimants.
Even if there is no cross-appeal or cross-objection preferred by the claimants, the exercise of determining the just compensation will have to be carried out. After carrying out the said exercise if it is found that the claimants are entitled to more amount than what is granted under the impugned judgment and Award, in absence of appeal or cross-objection, the Court may not enhance the compensation amount payable. Therefore, while deciding this appeal, an adjudication is required to be made whether the compensation granted by the Tribunal is a just compensation Such adjudication can be made even without taking recourse to Rule 33 of Order XLI of CPC.
Motor Vehicles Act, 1988 - Section 173 - Appeal against quantum of compensation.
In an appeal against quantum of compensation granted by Tribunal only, other assertions as regards negligence on part of driver of offending vehicle etc. not to be taken into consideration. - The claim petition under Section 166 of the said Act has been preferred claiming compensation on account of death of one Harish in a motor accident. The first respondent is the widow of the deceased, the second respondent is the minor son of the deceased and the third respondent is the mother of the deceased. The death occurred in the accident involving a motor vehicle which on the date of the accident was validly insured with the appellant insurance company. It is not necessary to make a reference to the other assertions in the claim petition as regards the negligence on the part of the driver of the offending vehicle in as much as in this appeal, the only dispute is as regards the quantum of compensation granted by the Tribunal.
1. The parties were put to notice on the earlier date that the appeal will be heard finally at the stage of admission. Accordingly, the appeal was taken up for final hearing. The learned counsel for the first to third respondents on instructions states that the said respondents do not desire to prefer either cross appeal or cross objection for challenging the impugned Judgment and Award. We accept the said statement.
2. Before we proceed to deal with the facts of the case and the submissions canvassed by the learned counsel for the contesting parties, we may note that initially this appeal was placed before the learned Single Judge. The learned Single Judge by order dated 2nd August 2012 came to the conclusion that the appeal pertains to the jurisdiction of the Division Bench. When we called upon the registry to submit an explanation as to why the appeal was placed before the learned Single Judge, the Registrar (Judicial) has placed on record order dated 6th December 2010 passed by a Division Bench of this Court in First Appeal no.1675 of 2010. It is pointed out to us that on the basis of the said order, the appeal was placed before the learned Single Judge.
3. The appeal arises out of an Award made by the learned Member of the Motor Accident Claims Tribunal, Mumbai. The first to third respondents are the claimants in the claim petition under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act). The original claim for compensation was in the sum of Rs.3,20,00,000/-. By the impugned Judgment and Award, the compensation has been fixed at Rs.50,75,000/- with interest thereon at the rate of 8.5% p.a from the date of claim application till realization of the amount.
4. The challenge in this appeal preferred by the appellant-insurer is confined to the compensation amount to the extent of Rs.14,91,000/-. In short, the impugned award to the extent of the rest of the amount of the compensation over and above the sum of Rs.14,91,000/- awarded including the interest part has been accepted by the appellant insurer. The fourth respondent insured did not contest the claim application. As the original claim was in the sum of Rs.3,20,00,000/-, for the purpose of jurisdiction, the appeal has been correctly valued at Rs.3,20,00000/- and for the purpose of court fees, the same has been rightly valued at Rs.14,9l,000/-.
5. As far as jurisdiction of the learned Single Judge to entertain the First Appeals is concerned, a reference will have to be made to Chapter I of the Bombay High Court Appellate Side Rules, 1960 (hereinafter referred to Appellate Side Rules). Rule 1 of Chapter I lays down that the Civil and Criminal jurisdiction of this Court on the Appellate Side shall, except in cases where it is otherwise provided for by the Rules, be exercised by Division Court consisting of two or more Judges. Thus, the basic rule is that unless a specific exception is carved out, all civil and criminal matters will have to be heard by a Division Bench. The Rule 2 of Chapter I carves out the exception by incorporating the list of matters which can be heard by the Single Judge. Sub clause (a) of Clause (I) of Rule 2 read thus :
"(a) Appeals (I) from original decree in suits or from adjudication in other proceeds from which appeals lie to the High Court as from original decrees, whether under the Civil Procedure Code or under any local or special Act, wherein the value of the subject matter in dispute in the Court or before the Tribunal of the first instance does not exceed [50 lakhs) rupees and wherein the value of the subject matter still in dispute on appeal is 50 lakhs rupees or less provided, however, that the expression 'the value of the subject matter still in dispute on appeal' appearing in this sub - clause shall be construed to mean, where there is an appeal as well as a cross appeal or cross appeals or cross objections, the total of the values of the subject matters in dispute in the appeal as well as the cross-
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