# New India Assurance Co. Ltd v. Anil Kumar & Ors

- **Citation:** (2023) 7 ILRA 84
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-14
- **Case number:** First Appeal From Order No. 613 of 2019
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-india-assurance-co-ltd-v-anil-kumar-ors-50642
- **Pages:** 17

## Headnote

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
7 All. New India Assurance Co. Ltd. Vs. Anil Kumar & Ors.
85
compensation-deceased died in accident
she was a homemaker and her income is
Rs. 5,000/- per month from the Tea Stall -
25% towards the future prospects which
would be Rs. 1,250/- per month would
make the income @ Rs. 6,250/- per
month-From this, if 1/3rd is deducted
towards
the
personal
expenses
and
rounding it off to Rs. 2, 100/- per month,
then the net income would be [Rs. 6,2502,100] Rs. 4,150/- per month. Adopting a
multiplier of 15 as per decision of the
Apex Court in Sarla Verma (supra), the
compensation
amount
would
be
Rs.
7,47,000/- to which the amount towards
consortium and loss of estate and funeral
expenses, if added at Rs. 70,000/-, would
finally rest the award at 8,17,000/-
Tribunal erred in not making deductions
for the personal expenses despite the
same the Tribunal awarded a sum of Rs.
70,000/-
towards
the
head
for
consortium, loss of estate and funeral
expenses and finally granted a total sum
of Rs. 7,45,000/- to the claimants. (Para 1
to 47)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,554 of 57,545. This is a partial read: ask again with offset=39554 for what follows._

84 INDIAN LAW REPORTS ALLAHABAD SERIES

14. On depositing the amount in the
Registry of Tribunal, Registry is directed to
first deduct the amount of deficit court fees,
if any. Considering the ratio laid down by
the Hon'ble Apex Court in the case of A.V.
Padma (supra), the order of investment is
not passed because applicants /claimants
are neither illiterate or rustic villagers.

15. In view of the ratio laid down by
Hon'ble Gujarat High Court, in the case of
Smt. Hansaguri P. Ladhani v/s The
Oriental
Insurance
Company
Ltd.,
reported in 2007(2) GLH 291, total
amount of interest, accrued on the principal
amount
of
compensation
is
to
be
apportioned on financial year to financial
year basis and if the interest payable to
claimant for any financial year exceeds
Rs.50,000/-,
insurance
company/owner
is/are entitled to deduct appropriate amount
under the head of 'Tax Deducted at Source'
as provided u/s 194A (3) (ix) of the Income
Tax Act, 1961 and if the amount of interest
does not exceeds Rs.50,000/- in any
financial year, registry of this Tribunal is
directed to allow the claimant to withdraw
the
amount
without
producing
the
certificate from the concerned Income- Tax
Authority. The aforesaid view has been
reiterated by this High Court in Review
Application No.1 of 2020 in First Appeal
From Order No.23 of 2001 (Smt. Sudesna
and others Vs. Hari Singh and another)
while disbursing the amount.

16.

Fresh
Award
be
drawn
accordingly in the above petition by the
tribunal as per the modification made
herein. The Tribunals in the State shall
follow the direction of this Court as herein
aforementioned as far as disbursement is
concerned, it should look into the condition
of the litigant and the pendency of the
matter and judgment of A.V. Padma
(supra). The same is to be applied looking
to the facts of each case.

17. The Tribunal shall follow the
guidelines issued by the Apex Court in
Bajaj
Allianz
General
Insurance
Company Private Ltd. v. Union of India
and others vide order dated 27.1.2022, as
the purpose of keeping compensation is to
safeguard the interest of the claimants. As
10 years have elapsed, the amount be
deposited in the Saving Account of
claimants in Nationalized Bank without
F.D.R.

18. Record be sent back to the
tribunal.

19. This Court is thankful to Sri
Madhav Jain, learned counsel for the
appellants and Sri A.K.Shukl learned
counsel for respondents for getting this old
appeal disposed of.
----------
(2023) 7 ILRA 84
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

First Appeal From Order No. 613 of 2019

New India Assurance Co. Ltd. ...Appellant
Versus
Anil Kumar & Ors. ...Respondents

Counsel for the Appellant:
Anchal Mishra

Counsel for the Respondents:
Ravindra Pratap Singh

A. Civil Law - Motor Vehicles Act,1988-
Sections
173-
enhancement
of
7 All. New India Assurance Co. Ltd. Vs. Anil Kumar & Ors.
85
compensation-deceased died in accident
she was a homemaker and her income is
Rs. 5,000/- per month from the Tea Stall -
25% towards the future prospects which
would be Rs. 1,250/- per month would
make the income @ Rs. 6,250/- per
month-From this, if 1/3rd is deducted
towards
the
personal
expenses
and
rounding it off to Rs. 2, 100/- per month,
then the net income would be [Rs. 6,2502,100] Rs. 4,150/- per month. Adopting a
multiplier of 15 as per decision of the
Apex Court in Sarla Verma (supra), the
compensation
amount
would
be
Rs.
7,47,000/- to which the amount towards
consortium and loss of estate and funeral
expenses, if added at Rs. 70,000/-, would
finally rest the award at 8,17,000/-
Tribunal erred in not making deductions
for the personal expenses despite the
same the Tribunal awarded a sum of Rs.
70,000/-
towards
the
head
for
consortium, loss of estate and funeral
expenses and finally granted a total sum
of Rs. 7,45,000/- to the claimants. (Para 1
to 47)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Sarla Verma (Smt.) & ors. Vs DTC (2009) 6
SCC 121

2. `Magma General Ins. Co. Ltd. Vs Nanu Ram
@ Chuhru Ram & ors. (2018) 18 SCC 130

3. Rajendra Singh & ors. Vs National Ins. Co.
Ltd. & ors. (2020) 7 SCC 256

4. Kirti & anr. Vs Oriental Ins. Co. Ltd. (2021) 2
SCC 166

5. Ranjana Prakash & ors. Vs Div. Manager &
Anr. (2011) 14 SCC 639

6. Saurabh Jain Vs A.B.P. Design (2021) SCC
Online 552

7. New India Assr. Co. Ltd. Vs Smt. Neelam
Jaiswal & ors. (2020) SCC Online All 85

8. New India Assr. Co. Ltd. Vs Risha Devi & ors.
(2017) 3 ADJ 685
(Delivered by Hon'ble Jaspreet Singh, J.)

1. The Insurance Company has come
up in Appeal under Section 173 of the
Motor Vehicles Act, 1988 assailing the
award dated 07.08.2019 passed in Claim
Petition No. 81 of 2018 by Motor Accident
Claims Tribunal/Additional District Judge,
Court No. VI, District Barabanki solely
assailing the quantum.

2. Sri Anchal Mishra, learned counsel
for the appellant has submitted that upon
the death of Smt. Sunita on 01.11.2016, a
Claim Petition bearing No. 81 of 2016
came to be filed. The averments of the
claim petition indicated that Smt. Sunita
being the pillion rider was traveling along
with her husband Anil Kumar on his
motorcycle bearing No. UP 32HF 8507.
While the said couple had reached near
Makarpur Petrol Pump, P.S. Loni Katra,
District Barabanki, the offending truck
bearing No. UP 83 H 9611 being driven
rashly and negligently hit the motorcycle,
as a result, Smt. Sunita received grievous
injuries and she died on the spot.

3. It was further pleaded that Smt.
Sunita was a proficient housewife and was
also running a Tea Stall and was able to
earn Rs. 6,000/- per month from the said
Tea Stall and she contributed towards the
household work and that was valued at Rs.
3,000/- per month and consequently the
loss was indicated as Rs. 9,000/- per
month. The deceased was survived by her
husband Anil Kumar, son Pramod Kumar
and a daughter Ms. Priya.

4. The claim petition came to be
contested and upon exchange of the
86 INDIAN LAW REPORTS ALLAHABAD SERIES
pleadings, the Tribunal framed six issues.
After considering the evidence both oral
and documentary, the Tribunal returned a
finding that the accident which caused the
death of Smt. Sunita was on account of rash
and negligent driving of a truck bearing
No. UP 83 H 9611. It also held that the
truck was duly insured with the New India
Assurance Company Ltd. and its driver had
a valid and subsisting driving license,
however,
while
computing
the
compensation, the Tribunal adopted a
notional income of Rs. 3,000/-per month
upon which 25% was added for future
prospects and considering that the age of
the deceased as 40 years, a multiplier of 15
was adopted and thereafter a sum of Rs.
70,000/- towards loss of consortium, loss of
estate, funeral expenses was added and thus
a total sum of Rs. 7,45,000/- has been
awarded in favour of the claimantsrespondents along with 7% interest by
means of the award dated 07.08.2019
which is under challenge.

5. The learned counsel for the
Insurance Company has submitted that the
Tribunal has erred on two counts:-

(i)
No
deductions
towards
personal expenses has been made which is
apparent from the manner in which the
issue no. (vi) has been decided.

(ii) The Tribunal has also erred in
adopting an incorrect multiplier of 15
rather a multiplier of 14 ought to have been
adopted.

6. It is further elaborated that since no
proof was furnished for proving any
income of the deceased, hence, even the
notional income which has been taken is on
the higher side and consequently the award
is inflated and necessarily needs to be
modified.

7. Sri Ravindra Pratap Singh, learned
counsel appearing for the claimantsrespondent nos. 1, 2 and 3 has opposed the
aforesaid submissions and has urged that
the primary requirement in a claim petition
under Section 166 of the Motor Vehicles
Act casts a duty on the Tribunal to ascertain
a just and fair compensation.

8. It is urged that specific evidence
was led on behalf of the claimants to
indicate that the deceased was running a
Tea Stall from where she earned Rs. 6,000/-
per month. It is further pointed out that she
was also a proficient housewife who
contributed to the household and this was
specifically pleaded in the claim petition
including in the evidence and despite the
same, the Tribunal has merely taken a
notional income of Rs. 3,000/-per month
without any basis and has completely
ignored the fact that the deceased was
running a Tea Stall and the income
generated therefrom.

9. It is further submitted that the age
of the deceased has been taken to be 40
years which was specifically stated in the
claim petition as well as corroborated from
the postmortem report and there was no
contradictory material against the same and
thus at the age of 40 years as per the dictum
of the Apex Court in Sarla Verma and
Others v. Delhi Transport Corporation
and Others, (2009) 6 SCC 121, the
appropriate multiplier to be adopted is 15
which has been noted by the Claims
Tribunal and therefore it cannot be said that
the Tribunal has erred in adopting an
incorrect multiplier.

10. It is further submitted that this fact
apart since Smt. Sunita had died in the
accident and she was survived by her
husband and two children, accordingly,
7 All. New India Assurance Co. Ltd. Vs. Anil Kumar & Ors.
87
consortium should have been awarded in
terms of the decision of the Apex Court in
Magma General Insurance Company
Ltd. Vs. Nanu Ram, 2018 SCC Online
SC 1546 i.e. to say that the husband would
be entitled to spouse consortium and the
two children were entitled to parental
consortium and this aspect has been
ignored by the Tribunal.

11. It is also pointed out that in the
aforesaid circumstance if the appropriate
income of the deceased was taken, coupled
with the fact that appropriate consortium is
awarded then amount as granted by the
Tribunal will be just and appropriate and
then even if an adjustment for personal
expenses is made then there would not be
much of a difference in the quantum to
persuade the Appellate Court to intervene
where substantial justice has been done and
a fair and adequate compensation has been
awarded. Hence, the award may not be
disturbed only on account of mathematical
calculations or for technical reasons.

12. In reply, the learned counsel for
the Insurance Company has pointed out
that it is the appeal of the Insurance
Company which is assailing the quantum of
award on the aforesaid counts. The
claimants-respondents have not filed any
appeal nor any cross objections and thus
they are precluded from making any
submission for enhancement of the award
on the ground that the Tribunal has not
taken the appropriate income of the
deceased and the consortium has also not
been granted appropriately. Moreover, the
respondent do not dispute that the Tribunal
ought to have made adjustments towards
personal expenses, which has not been
done, consequently, the appeal deserves to
be allowed.

13. The Court has considered the rival
submissions and also perused the material
on record.

14. In light of the rival submissions,
the issues which arise for the consideration
of this Court in the present appeal is:-

(i) Whether in absence of any
cross appeal under Order 41 Rule 22 C.P.C.
filed by the claimants, this Court can
consider
the
submissions
regarding
enhancement of the award at the behest of
the claimants, whereas it is the Insurance
Company who has challenged the award on
the ground of quantum being high?.

(ii) Whether the quantum as
determined by the Tribunal is just and fair
compensation?

15. In order to answer the aforesaid
two issues, it will be necessary to notice
certain statutory provisions as contained in
the Motor Vehicles Act, 1988.

16. Section 165 of the Motor Vehicles
Act, 1988 provides for constitution of a
Claims Tribunal and Section 166 of the
Motor Vehicles Act, 1988 relates to how an
application for compensation is to be made.

17. Section 169 of the Motor Vehicles
Act, 1988 of the aforesaid Act provides for
the procedure and powers of the Claims
Tribunal and it specifically provides that in
holding an inquiry under Section 168, the
Claims Tribunal may subject to any rules
that may be made in this behalf follow such
summary procedure as it thinks fit and it
shall have all the powers of Civil Court for
the purpose of taking evidence on oath and
for enforcing the attendance of witness and
for compelling the discovery of production
of documents.
88 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Section 168 of the Motor Vehicles
Act, 1988 specifically provides that on
receipt of an application for compensation
made under Section 166 of the Act, the
Claims Tribunal after giving notice to the
insurer and the parties concerned and after
affording any opportunity of being heard,
hold an inquiry into the claim and may
make an award determining the amount of
compensation which appears to be just and
specify the person or persons to whom the
compensation shall be payable and shall
also specify the amount which shall be paid
by the owner or the insurer or the driver of
the vehicle involved in the accident or by
all, as the case may be.

19. An appeal against the award is
provided under Section 173 of the Motor
Vehicles Act, 1988 to the High Court. In
the State of U.P., the Government has
formulated
the
Uttar
Pradesh
Motor
Vehicles Rules, 1998 and matters relating
to the claims have been covered in Chapter
9 from Rules 204 to 222.

20. It will also be seen that the
primary duty of the Claims Tribunal is to
hold an inquiry in order to ascertain and
arrive at a just and fair compensation. In
order to arrive at such a finding, the inquiry
is held and it is open for the parties to lead
their evidence to help the Tribunal to arrive
at
a
just
compensation.
Once,
a
compensation has been determined by the
Tribunal, it is open for either of the parties
either to accept or to challenge the award
by filing an appeal.

21. The award passed by the Tribunal
can be assailed by an aggrieved party on
various counts including the quantum. If an
appeal has been filed by any party, (other
than the claimant) on any ground then if the
claimants are dissatisfied with the amount
as awarded, they always have a right of
seeking enhancement of the award by
either filing a separate appeal or by filing
cross objections under Order 41 Rule 22
C.P.C.

22. The complexion would change
where a party (other than the claimant)
assails the award solely on the ground of
quantum of compensation before the
Appellate Court and the claimant who has a
right of filing a cross objection but he does
not file any cross-objection or cross appeal.
In such a situation whether the Appellate
Court is only required to assess and
examine the appeal within the limited
parameters as urged by the appellants
assailing the award on quantum or is it
open for the Appellate Court, if during
hearing of the appeal, It finds that the
compensation has not been appropriately
granted by the Tribunal then whether it can
grant such higher compensation than the
one which has been granted by the Tribunal
and which is already assailed and under
challenge before it in appeal.

23. In order to find an answer to the
said question, it will be appropriate to take
a glance at few decisions on the subject. A
Division Bench of this Court in New India
Assurance Company Ltd. Vs. Risha Devi
and others; 2017 (3) ADJ 685 considered
the issue in context with provisions of
Order 41 Rule 33 C.P.C. and the relevant
portion of the said decision reads as
under:-

".18.The
other
argument
advanced by learned counsel for the
appellant that amount of compensation
cannot be increased in an appeal filed by
the Insurance Company in the absence of
cross-appeal by the claimant, is also
without any force.
7 All. New India Assurance Co. Ltd. Vs. Anil Kumar & Ors.
89

19.Order XLI Rule 33 of the Code
of Civil Procedure prescribing the power of
court of appeal clearly provides that the
Appellate Court shall have power to pass
any decree and make any order which
ought to have been passed or made as the
case may require, and this power may be
exercised in favour of all or any of the
respondents or parties though they may not
file any appeal or objection. Order XLI
Rule 33 of the Code reads as under:

"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 [any 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.

20.The provisions of Order XLI
Rule 33 C.P.C. was explained by the
Hon'ble Apex Court in the case ofMahant
Dhangirv.Madan Mohan,1987 Supp SCC
528:AIR 1988 SC 54in following words:

"The sweep of the power under
Rule 33 is wide enough to determine any
question not only between the appellant
and
respondent,
but
also
between
respondent
and
co-respondents.
The
appellate Court could pass any decree or
order which ought to have been passed in
the circumstances of the case. The
appellate court could also pass such other
decree or order as the case may require.
The words "as the case may require" used
in Rule 33 Order 41 have been put in wide
terms to enable the appellate Court to pass
any order or decree to meet the ends of
justice. What then should be the constraint?
We do not find many. We are not giving any
liberal interpretation. The rule itself is
liberal enough. The only constraint that we
could see, may be these : That the parties
before the lower Court should be there
before the appellate Court. The question
raised must properly arise out of the
judgment of the lower Court. If these two
requirements are there, the appellate Court
could consider any objection against any
part of the judgment or decree of the lower
Court. It may be urged by any party to the
appeal. It is true that the power of the
appellate
Court
under
Rule
33
is
discretionary. But it is a proper exercise of
judicial
discretion
to
determine
all
questions urged in order to render complete
justice between the parties. The Court
should not refuse to exercise that discretion
on mere technicalities."

21.The same view has again been
reiterated in a later decision by the Hon'ble
Apex Court in the case ofDelhi Electric
Supply Undertakingv.Basanti Devi,(1999) 8
SCC 229:AIR 2000 SC 43.

22.We are of the considered view
that the conditions as laid down in
provisions of Order XLI Rule 33 are
satisfied in the present case. In Delhi
Electric Supply Undertaking (Supra) the
Hon'ble Apex Court has observed that
when circumstances exist which necessitate
the exercise of discretion conferred by Rule
33, the court cannot be found wanting
when it comes to exercise its powers.
90 INDIAN LAW REPORTS ALLAHABAD SERIES

23.Thus the argument in this
regard made by the learned counsel for the
appellant has no legs to stand and is not
liable to be sustained."

24. A similar issue was raised before
this Court in New India Assurance
Company Ltd. Vs. Smt. Neelam Jaiswal
and others; 2020 SCC Online (All.) 85
wherein the issue was whether in an appeal
preferred by the Insurance Company on a
ground other than the quantum and in
absence of any cross appeal by the
claimants whether the court would be
justified in enhancing the amount in terms
of powers conferred under Order 41 Rule
22 C.P.C. and Order 41 Rule 33 C.P.C. This
was considered in detail by the Court with
the aid of the decisions of the Apex Court
and finally it was held as under:-

"28.There is another angle to
look at the aforesaid situation. In the
decision relied upon by the learned counsel
for the respondents in the case ofResha
Devi(supra) it would be seen that the
appeal had been preferred by the Insurance
Company. The submission of the learned
counsel for the Insurance Company is
noted in paragraph-4 of the judgment of the
Division Bench and from the perusal
whereof, it would indicate that the question
before Hon'ble the Division Bench as
raised by the Insurance Company was on
quantum; inasmuch as it had been
contended that the multiplier as adopted by
the tribunal was on the higher side and the
compensation accordingly was excessive.

29.It
is
in
the
aforesaid
circumstance,
where
the
question
of
quantum was before the Division Bench
and in such circumstance considering the
fact that the Division Bench found that the
award was on the lower side had applied
the power under Order 41 Rule 33 CPC
and has enhanced the award by adding
non-pecuniary damages. Thus, it would be
seen that the facts before the Division
Bench were completely different; inasmuch
as the issue of quantum was before the
High Court specifically raised by the
Insurance Company and as an appeal is a
continuation of the proceedings and the
tribunal is required to hold an inquiry to
ascertain the compensation which is just
and
fair,
hence
in
the
aforesaid
circumstances where the Division Bench
came to be conclusion that the Insurance
Company was contending that the award
was excessive, but it found that it was on
the lower side, hence in order to do
substantial justice despite the claimants did
not file a cross appeal the Division Bench
exercised its power under Order 41 Rule 33
CPC and enhance the same."

25. This Court would be failing in its
duty if it did not notice a recent decision of
the Apex Court in context with the powers
conferred on the Appellate Court under
Order 41 Rule 22 C.P.C. and Order 41 Rule
33 C.P.C. in Saurabh Jain Vs. A.B.P.
Design; 2021 SCC Online 552 wherein the
issue was whether the superior Court could
consider an adverse finding even where a
cross objection has not been filed and it
was held as under:-

"27. On a perusal of the above
authorities, it is evident that the principle
stipulated in Order XLI Rule 22 of CPC
can be applied to petitions under Article
136 of the Constitution because of this
Court's wide powers to do justice under
Article 142 of the Constitution. Since the
principle in Order XLI Rule 22 of the CPC
furthers the cause of justice by providing
the party other than the ''aggrieved party'
to raise any adverse findings against them,
this Court can draw colour from Order XLI
7 All. New India Assurance Co. Ltd. Vs. Anil Kumar & Ors.
91
Rule 22 CPC and permit objections to
findings.

28. From the above it has been
established that it not necessary that a
challenge to the adverse findings of the
lower court needs to be made in the form of
a memorandum of cross-objection. In the
present case, we note that the appellant had
raised an objection to the jurisdiction of the
Trial Court for entertaining the suit on the
ground that an injunction and declaratory
relief could not have been given. Although
the Trial Court passed a decree in favour of
the appellant, it had decided against the
appellant on the question of jurisdiction.
This finding was not challenged by the
appellant before the High Court in the form
of a memorandum of cross-objection. The
judgment of the High Court makes no
mention that a plea of lack of jurisdiction
was taken by either the appellant or the
MDA. Before this Court, the appellant has
not filed the counter-affidavit it had filed
before the High Court. Thus, the conclusion
that emanates from the record before us is
that the ground of jurisdiction was only
raised by the appellant before the Trial
Court and not before the High Court. In
effect then, this Court would have to
adjudicate on a plea, which did not form a
part of the decision of the High Court in
challenge before us.

29. With regard to new grounds
being raised before this Court in a special
leave petition under Article 136, we note
that under Order 21 Rule 3(c) of the
Supreme Court Rules 2013, SLPs are to be
confined to the pleadings before the court
whose order is challenged. However, with
the leave of the Court, additional grounds
can be urged at the time of the hearing.

*******--------*******------
****---------***

32.
In
Most
Rev.
P.M.A.
Metropolitan v. Moran Mar Marthoma 17
as well, a three Judge bench of this Court
entertained
an
objection
as
to
maintainability of the suit under Section 9
of the CPC, despite the plea not having
been raised before the courts below. The
Court observed that the plea of a bar or
lack of jurisdiction can be entertained at
any stage, since an order or decree passed
without jurisdiction is nonest in law.

*******--------*******------
****---------***

.....34. Based on the position of
law, we find it just to allow the appellant to
raise the ground of jurisdiction before us.
Allowing the ground to be raised would not
require
the
submission of additional
evidence since it is a pure question of law
and strikes at the heart of the matter. We
shall now turn to the merits of this
argument. "

26. From a gainful reading of the
propositions as has been noticed in the
decisions
considered
hereinabove,
apparently, what can be culled out is the
fact
that
once
the
issue
of
compensation/quantum has been raised by
any party before the Appellate Court, then
the Appellate Court becomes duty bound to
ascertain as to whether the compensation
has been adequately and justly awarded or
not. The entire ethos behind consideration
of a claim petition under the Motor
Vehicles Act is grant of just and fair
compensation. This is to be seen in the
context that in the given facts and
circumstance, the compensation should not
be meager but at the same time it should
not also be a bonanza for the claimants.
Within these two outer perimeter, it is the
duty of the Tribunal and so also for the
Appellate Court to adjudge the issue of
quantum
with
a
correct
lens
and
perspective so that the claimants are
92 INDIAN LAW REPORTS ALLAHABAD SERIES
awarded just and fair compensation which
is pragmatic and close to reality.

27. In the spotlight of the above
considered decisions, this Court is of the
clear opinion that where an appeal is
preferred by any party, other than the
claimants,
assailing
the
quantum
on
whatever ground, in such a case, even
though, the claimant may not have filed a
cross objection or a separate appeal for
enhancement, yet, it is the duty of the
Appellate
Court
to
see
that
the
compensation as awarded by the Tribunal is
just and fair. While determining the same,
even if, the Appellate Court comes to the
conclusion that the amount granted by the
Tribunal is less, it has all the jurisdiction to
grant fair and just compensation by
enhancing the award even in absence of
any cross objection for the reason that the
appellant who is before the Court has
already raised the issue of quantum and
considering the arguments/contentions of
the appellant, the Appellate Court is to
arrive at its own independent finding
regarding quantum which may then even
grant a higher sum than granted by the
Tribunal. In such situation, it is not open
for the appellant to state that the amount
cannot be enhanced as no challenge has
been made to the award. What needs to be
seen is the fact that it is the quantum of
award which is under challenge and that
has to be decided and in a befitting case,
the Appellate Court can invoke the powers
in its repository to pass such orders to grant
just and fair compensation.

28. Thus, the Appellate Court would
be justified in adopting such a course.
However, it would be a different situation
altogether where the award is assailed on
any other ground, other than quantum, then
while the claimants have not filed any cross
objection then during the course of
argument the issue regarding enhancement
of compensation if made at the behest of
the claimants, the Appellate Court may
decline to consider it unless a clear case is
made out by the claimant, who had failed to
file any appeal or cross appeal, by bringing
in their case within the parameters of Order
41 Rule 33 C.P.C. as discussed above with
the aid of the decision in Saurabh Jain
(Supra), Risha Devi (supra) and Neelam
Jaiswal (supra).

29. This issue can be seen from
another lens, inasmuch as, where the
Insurance
Company
files
an
appeal
assailing the grant of compensation, the
claimant without filing a cross appeal or
cross objection also possesses the right to
defend the amount which has already been
granted by the Tribunal. In case if in the
given facts and circumstances, the claimant
is able to justify that the compensation
granted by the Tribunal is just and
appropriate, it is not necessary for the
claimant to file a cross appeal or cross
objections. This aspect has also been
considered by the Apex Court in Ranjana
Prakash
and
others
Vs.
Divisional
Manager and Another; (2011) 14 SCC 639
wherein in paragraphs no. 6 to 8, it was
held as under:-

"6. We are of the view that the
High Court committed an error in ignoring
the contention of the claimants. It is true
that the claimants had not challenged the
award of the Tribunal on the ground that
the Tribunal had failed to take note of the
future prospects and add 30% to the annual
income of the deceased. But the claimants
were not aggrieved by Rs 23,134 being
taken as the monthly income. There was
therefore no need for them to challenge the
award of the Tribunal. But where in an
7 All. New India Assurance Co. Ltd. Vs. Anil Kumar & Ors.
93
appeal filed by the owner/insurer, if the
High Court proposes to reduce the
compensation awarded by the Tribunal, the
claimants can certainly defend the quantum
of compensation awarded by the Tribunal,
by pointing out other errors or omissions in
the award, which if taken note of, would
show that there was no need to reduce the
amount
awarded
as
compensation.
Therefore,
in
an
appeal
by
the
owner/insurer, the appellant can certainly
put forth a contention that if 30% is to be
deducted from the income for whatsoever
reason, 30% should also be added towards
future prospects, so that the compensation
awarded is not reduced. The fact that the
claimants did not independently challenge
the award will not therefore come in the
way of their defending the compensation
awarded, on other grounds. It would only
mean
that
in
an
appeal
by
the
owner/insurer, the claimants will not be
entitled to seek enhancement of the
compensation by urging any new ground, in
the absence of any cross-appeal or crossobjections.

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 crossobjections. 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 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. Having seen the light through the
legal prism, this Court is inclined to
examine the quantum of the award as to
whether the amount granted by the Tribunal
is just and fair and in case if it is found that
the amount is lower then the Court would
be justified in enhancing the same and in
case if the contention of the appellant
appears to be correct then the Court also
has the power to reduce the compensation
94 INDIAN LAW REPORTS ALLAHABAD SERIES
and in case if the compensation is just and
appropriate, the Court can also refuse to
interfere. Thus, the first issue is answered
in the affirmative.

31. In the aforesaid backdrop, if the
facts of the instant case are seen in contrast
to the submissions made by learned counsel
for the parties, it would be found that the
sole ground for assailing quantum by the
Insurance Company is that there has been
no deductions towards personal expenses
and that the multiplier is on the higher side
and instead of 14 the Tribunal has erred in
adopting a multiplier of 15.

32.

On
the
other
hand,
the
submissions of learned counsel for the
claimants is that the deceased was engaged
in running a Tea Stall and was earning a
sum of Rs. 6,000/- per month from the said
venture and was also contributing to the
household as a proficient homemaker. The
Tribunal
found
that
there
was
no
documentary
evidence
regarding
the
running of the Tea Stall by the deceased
and noticing that the claimant-witness had
stated that the Tea Stall was being run by
the husband of the deceased namely Anil
Kumar, consequently, it adopted merely a
notional income of Rs. 3,000/- per month.

33. At the outset, as a principle it is
true and correct that a Tribunal while
determining the compensation is also
required to make a deduction towards
personal expenses. Now, having said that, it
will be worthwhile to examine as to
whether the Court has rightly appreciated
the material evidence available on record to
arrive at the figure of Rs. 3,000/- per month
as notional income.

34. From the perusal of the claim
petition, it would indicate that it has clearly
been pleaded that the deceased was running
a Tea Stall and was earning around Rs.
6,000/- per month from the said venture.
Rs. 3,000/- has been taken as her
contribution being a proficient home maker
and thus the amount claimed in the petition
is on the basis of Rs. 9,000/- per month.

35. On behalf of the claimants,
Pramod Kumar son of the deceased was
examined and in his examination-in-chief,
he clearly stated and reiterated that his
mother was a proficient homemaker and
used to run a tea stall from where she was
earning Rs. 6,000/- per month and was also
the bread earner for the family. In his crossexamination, a specific question was put to
him wherein he reiterated and positively
affirmed his statement that his mother was
running the Tea Stall and earned Rs.
6,000/- from the same.

36. This would indicate the factum of
the running of the Tea Stall by the deceased
and earning of a sum of Rs. 6,000/- per
month from the same stood sufficiently
proved as no contrary evidence was led.
However, the Tribunal fell in error in
recording in the award that it has been
admitted by the claimant-witness that the
father i.e. Anil Kumar is running the
aforesaid Tea Stall and therefore it came to
the conclusion that the deceased was not
running the Tea Stall and adopted a
notional income of Rs. 3,000/- per month to
compute the compensation.

37. At this stage, it will also be
relevant to notice the statement given in the
cross-examination by the claimant-witness
Pramod Kumar to the effect that his mother
was running a Tea Stall and she was
earning Rs. 6,000/- per month and that his
father is alive and now the Tea Stall is
being run by his father. The relevant
7 All. New India Assurance Co. Ltd. Vs. Anil Kumar & Ors.
95
portion
of
the
statement
for
better
appreciation is being re-produced for ready
reference:-

"मेरी मातािी कुशल र्ृहणी थी और चाय की दुकान
चलाती थी। मैं पढाई करता ह ं। मेरे अलावा मेरी एक बहन डप्रयायश
सैनी िो अडववाडहत है पढाा़ई कर रही है। मेरे डपतािी अभी िीडवत
हैं। अब चाय की दुकान डपतािी चलाते हैं। सारा िचाग घर का इसी
चाय की दुकान से चलता था। इस समय भी चल रहा है।"

38. This above quoted statement
would indicate that the accident had
occurred in the year 2016 where Smt.
Sunita expired but the statement was given
in the year 2019. In this perspective, the
evidence of the claimant-witness reflcts
that the mother of the claimant-witness was
a good home maker and was running a Tea
Stall. The father of the witness was alive.
He stated, now (emphasis supplied) my
father runs the Tea Stall. This statement
indicates that prior to the accident the
deceased was running the Tea Stall and
after her death it was the father Anil Kumar
who was running the Tea Stall. There is
nothing on record to discredit the testimony
or contradict the fact that Sunita was
running the Tea Stall and she was able to
earn Rs. 6,000/- per month from it.

39. Now, in so far as the contribution
of a homemaker is concerned, this aspect of
the matter has been very well elucidated by
the Apex Court in Kirti and Another Vs.
Oriental Insurance Company Ltd. 2021
(2) SCC 166. In the supplementing but
concurring
opinion
authored
by
His
Lordship N.V. Ramana, and the relevant
portion thereof reads as under:-

17.
There
are
two
distinct
categories of situations wherein the court
usually determines notional income of a
victim. The first category of cases relates to
those wherein the victim was employed, but
the claimants are not able to prove her
actual income, before the court. In such a
situation, the court "guesses" the income
of the victim on the basis of the evidence on
record, like the quality of life being led by
the victim and her family, the general
earning of an individual employed in that
field, the qualifications of the victim, and
other considerations.

18.The second category of cases
relates to those situations wherein the
Court is called upon to determine the
income of a non-earning victim, such as a
child, a student or a homemaker. Needless
to say, compensation in such cases is
extremely difficult to quantify.

*******--------*******------
****---------***

.....20.One
category
of
nonearning victims that courts are often called
upon to calculate the compensation for are
homemakers.