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TMI Blog1996 (11) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... p.m., the KSRTC Bus --MEF 3510, came from the opposite direction in a great speed and dashed against the scooter belonging to respondent No. 4, in the claim petition, that is the claimant in MVC Case No. 473/1989. As an impact of the dashing of the bus with the scooter, claimant-petitioner, who was pillion rider and respondent No. 4, who was the rider, i.e. driver of the scooter sustained serious and grievous injuries and they had to be shifted to the hospital. The case of the claimant, in the two claim petitions had been that the accident had taken place solely due to the rash and negligent d riving of the bus by respondent No. 1, that is the driver of the KSRTC bus. The claimant further averred that the claimant was, at the time of accident, was healthy, fit and carrying on the business of vegetable vending and his monthly income was about Rs. 2,000/-. The claimant in the claim petition averred that as a result of the accident, he suffered compound fracture of right leg below knee and grievous injuries on other parts of the body. The claimant further alleged that from the date of accident, i.e. 11.12.1988, till the date of filing of the petition, the claimant was under the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at accident did take place solely because of the negligent and rash driving of the KSRTC bus by its driver. It also stated that at the time of accident, respondent 4 was not holding a valid driving licence. In the alternative, it was also asserted that the claim for compensation made, has been quashed in an exorbitant manner- 5. On the basis of the pleadings of the parties, the Tribunal framed the following issues: 1. Whether the petitioner proves that he sustained personal injuries in an accident that occurred on 11.12.1988 due to the rash and negligent driving of the bus driver - respondent 1 ? or Whether the respondents 1 and 2 prove that the accident occurred due to the rash and negligent driving of Bajaj M-50 bearing Reg. No. 2626, driven by respondent 4? 2. What is the quantum of compensation to which the petitioner is entitled and from which of the respondents? Similar issues were also framed in MVC No. 473 of 1989. That the present appeal arises from MVC 1416/88, there is no need to go into that matter any further of MVC 473 of 1989. 6. After having considered the material on record and the evidence of the parties, the Tribunal recorded the following fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the family. She submitted that grant of total sum of Rs. 16,000/- only as global compensation for suffering of loss of amenities, earnings, medical expenses. This, in lumpsum, is too insufficient and inadequate. She submitted that the patient had to remain in hospital for a month and he had incurred expenditure to the tune of Rs. 4,000/-. This should have been awarded under separate head and the general damages should have been awarded under different heads. Learned Counsel for the appellant contended that no appeal or cross-objection has been filed by any of the respondents. So, finding to the effect as to the cause of accident was rash and negligent driving of bus by its driver has become final and binding on the parties. 8. On behalf of the respondents, on effort was made to shift the liability on each other. No doubt, the Counsels for the respondents admitted that the claimant suffered fatal injuries as alleged and that he had been admitted in the hospital, but both the sides denied their liability for accident. Mr. H.G. Ramesh, learned Counsel for respondent-5, contended that the finding recorded by the Tribunal that accident did take place not only because of negligence an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents tantamounts to challenging the decree of the Tribunal which has determined the liability of two sets of respondents in this case to pay and the extent of right of the claimant to realise the money from either of the two opposite parties and as such it is not open to challenge. In the alternative, Counsel for the respondents 2 and 3, that is the KSRTC submitted that the accident indicates that really, the accident did not have taken place on account of rash and negligent driving of the motor cycle by the motor-cycle rider and compensation should be made payable in entirety by respondents 4 and 5 and not by the KSRTC. As regards the amount of compensation, the Counsel on behalf of respondent I .o. 5 - Insurance Company submitted that compensation that has been awarded is just, proper and sufficient. The learned Counsel contended that the injury was not due to fracture, but even earlier to that, the claimant was suffering from polio in both the legs and as such, the disability which has been determined to 40% is erroneous. At the most, the disability might have been arisen out of the accident, if at all, would be if lesser in percentage, and the learned Counsel for respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent Nos. 1 to 3, submitted that Order 41, Rule 22 of the Code should be read harmoniously with the other provisions of the Code and he submitted that it is not open to the 5th respondent to challenge a finding which has the effect of rendering directly or indirectly the reversal or modification of the decree, unless the 4th and 5th respondents have filed the cross objection or appeal and as such, scope of the first part of Rule 22 of Order 41, CPC which provides that the respondent may state a finding which has been recorded against him should have been in his favour, only relates to the finding against such a person, which do not have the effect of reversal or modification of the decree passed by Court below. He submitted, to support the decree means, to support the decree as passed by the lower Court or the Tribunal. 12. I have applied my mind to the contentions made by the learned Counsels for both the parties. In this case, there is no question of any contributory negligence of the injured. He suffered injuries, because of negligence of respondent Nos. 1 and 4 or if at all the arguments of respondent No. 5, is to be considered, it may be said that because of negligence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oath that he cannot bend his right leg. This statement of PW 1 finds support from the medical report or injury certificate of the Doctor. PW 2 - Dr. R.K. Sharma, has proved the certificate also and stated that the fracture in right knee was detected when X-ray was taken. Doctor has deposed that on examination, he found that the petitioner was limping when walking. Gravitation was also felt in the movement of the knee and he has deposed that according to his opinion, petitioner was suffering from permanent physical disability of 40% in the right femur. The Doctor denied the suggestion to the effect that the petitioner had not at all suffered any disability or that he could do his normal duties. The doctor has mentioned the shortening of the leg in the case of the claimant has been due to fracture. 13. Considering the material evidence on record, I agree with the opinion expressed by the Tribunal that the evidence on record including Ex. P4, clearly established that the claimant suffered fracture on the right knee joint injury which was caused on account of his accident and the movement of his right limb was also affected there was shortening of the leg to certain extent and in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... polio, but the claimant has suffered more disability on account of the occurrence or by incident or motor accident that had taken place. In case, I take that disability at a reduced figure from 40% to 15% or 20% and calculate towards general damages on the basis of the daily earnings of the person by monthly income and yearly income multiplied by the multiplier of 10, if there would have been total damage of full disability, the damages could have been awarded to the tune of almost Rs. 2,50,000/- and in that case, if disability is taken to be 15%, the amount would have come to a sum of Rs. 45,000/-. This may be taken to be and I think it would be proper in such a case to award and to hold that claimant will be entitled to compensation to the tune of Rs. 45,000/- under the head 'general damages' which may include damages for pain and suffering, for loss or diminishing of the earning capacity and the enjoyment of life. In respect of medical expenditure as special damages, the claimant may be held to be entitled to a sum of Rs. 5,000 /- as claimed. The claimant has been a vendor of the vegetables. According to the statement, he had been earning Rs. 80/- per day and he had pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to amended Rule 22(1) of Order 41 reads as under: Explanation : A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree insofar as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent. 16. A perusal of Order 22(1), Order 41 per se reveals that, although respondent may not have filed an appeal from a part of the decree, but was conferred a right to support the decree passed by the Court below even on the grounds decided against him by the Court below, but in case where he wants to do something more than supporting the decree, that is he wanted to challenge the decree or part of the decree, he could do that either by filing the appeal or the cross-objections, but he simply wanted to support that decree passed by the Court below, then it was open to him to support that decree. In other words it means that, to say, on the grounds which had been decided against him, if those findings would ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable even when the finding on limitation would have been there, the entire suit should have been dismissed and no decree should have been passed. The question I put to myself is: Whether it will be a case supporting the decree, it appears to me to be not a case supporting the decree as passed by Trial Court, i.e. not a case of supporting the decree as standing, that is decreeing the suit in part and dismissing the suit in part, that decree should be supported, but when a respondent without filing the cross-objection or cross-appeal against that part of decree, whereby suit has been decreed, in course of plaintiff's appeal against that part of decree, whereby Trial Court had dismissed the claim part, urges that no part of suit should have been decreed as suit was barred by limitation and Appellate Court accepts his contention on the impression of recording a finding, and the Court holds that suit in entirety liable to be dismissed and so, plaintiff's appeal cannot be allowed. Then because of the contention raised by respondent under Rule 22 of Order 41 of the Code, what may follow may not result in supporting sustaining of the decree, but in creating two conflicting decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intains. In Black's Law Dictionary (5th Edition), the meaning of expression 'support' has been given at Page-1291, support, v. furnishing funds or means for maintenance; to maintain; to enable to continue; to uphold with aid or countenance, that which furnishes a livelihood; a source or means of living; subsistence, sustenance or living. In a broad sense, the term includes all such means of living as would enable one to live in the decree of comfort suitable and becoming to his station of life. In Words and Phrases (Permanent Edition), Page 40A at Page 392, dealing with 'support', it has been observed: Support according to Webster's means to sustain to supply funds or means of continuing. At Page 391 of the same Dictionary, it has been mentioned, the word support implies sustaining from beneath as is indicated by its definition to bear or being under and its derivation. 18. A challenge to a finding on the basis of which the decree has been passed against a person imposing liability on him and conferring right on the claimant to realise or to enforce his right cannot be said to be an act of supporting the decree passed, because if very basis or the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that decree is based. It means, where decree is not based, on the finding which has been recorded by Trial Court, i.e. lower Court, the respondent in the appeal without filing the cross-appeal or cross-objection can urge and show that the finding recorded against him was wrong and it should have been in his favour and if it is recorded in his favour, the result will be same, i.e. decree passed by Court below cannot be reversed on the basis of appellant's contentions and challenged in appeal and that the final conclusion and decree would remain the same, as passed by the Court below. That under Order 41, Rule 33 of the Code, Appellate Court has been given power to pass any decree of make any order which ought to have been passed or made and to pass or make such further order or decree as the case may require. This rule further clarifies that this power which has been conferred by Rule 33 is exercisable by the Court of Appeal notwithstanding the fact that the appeal is, as to the part only of the decree, and the power may be exercised in favour of all or any of the respondents or parties irrespective of the fact that such respondents or parties may not have filed any appeal or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the Court to adjust the rights of the parties. Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed; the power conferred by Order 41, Rule 33 may properly be invoked. The rule, however, does not confer an unrestricted right to re-open decrees which have become final merely because the Appellate Court does not agree with the opinion of the Court appealed from. Their Lordships further observed in paragraphs 12 and 13 that: The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properties, in the appeal, the respondent is should not be allowed to show that the orders of sanction were invalid notwithstanding the fact that they were not set aside in a suit instituted by the 2nd respondent. If the Court were to refuse to pass a decree allowing the appellants to recover the money on the rest of the minor's interest in the properties, the basis of that refusal would be on a ground destructive of the decree passed by the High Court. In other words, the High Court granted the decree on the basis that the orders of sanction for mortgaging the properties were valid. If we are to refuse to pass a decree for recovery of the mortgage money from the entire interest of the minor in these properties, on the ground that the orders sanctioning the mortgages were invalid, that would be contradictory to the finding of the High Court on the basis of which it passed the decree. Order 41, Rule 33 of the Civil Procedure Code clothes the Appellate Court with the power to pass any decree or order which the Trial Court ought to have passed or made and to pass or make such further or other decree or order as the justice of the case may require. A reading of these observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention which if accepted, would have resulted in the total dismissal of the suit. But, the only limitation is that partial decree passed against respondent becomes final and cannot be avoided and on this basis, it is observed that it is always open to him to contend that plaintiff is not entitled to increase in decree by showing the Court, that the plaintiff's suit should have been dismissed in toto and then, referred to the case of CPJ Temple (supra). The quotations in paragraph 20, has been referred in that decision of the learned Single Judge, but the learned Single Judge's attention has not been invited to the consequence of the finding which if it is arrived, that plaintiff's suit would not have been maintainable and was liable to be dismissed. How could that two contradictory decrees be maintained by saying that decree passed against him shall remain maintained, while the suit in entirety will be dismissed upholding that plea the suit to be not maintainable. 21. In the Chandraprnbhuji's case (supra), their Lordships observed that Court may exercise in such cases, the power under Order 41, Rule 33, as and when there is any possibility of two contradicto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at by the Court below. If this finding is set aside, then consequence would be to set aside that part of the decree and will be tantamount to allowing the defendant -- Insurance Company, that is respondent No. 5, to challenge the decree or part of the decree which is against him. It appears to be that it is an indirect way of attacking the decree which has been passed against the respondents without filing the cross objections. Such attempts cannot be permitted or be encouraged particularly, when the co-respondent is taken by surprise. When I so opine, find support from the decision of the Division Bench of the Bombay High Court in the case of Smt. Padmadevi Shankar Rao Jadhav v. Kabalsing Garmilsing Sardarji AIR 1985 Bom 357, at this juncture I quote in extenso the following observations of Their Lordships of the Bombay High Court which are contained in Paragraph 7: So far as the question as to whether the opponents can challenge the finding qua negligence of the opponent No. 1 - Kabalsing is concerned, in our view, it is not open to opponents to challenge the said finding in the absence of filing of an independent appeal or a cross-objection. It is not disputed that in an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be open to the opponents to challenge the finding in that behalf. We are fortified in this view by the latest decision of the Supreme Court in Choudhary Sahu (dead) by LRs. v. State of Bihar, (supra). Precisely a similar question fell for the consideration of the Supreme Court in the context of the provisions of Order 41, Rule 22 and Order 41, Rule 33 of the Code of Civil Procedure. After making a reference to its earlier decisions in [1965] 3 SCR 550 and [1969] 3 SCR 944 , this is what the Supreme Court has observed in paras 12,13 and 14 of the judgment.: 12. The object of this rule is to avoid contradictory and inconsistent decisions on the same questions in the same suit. As the power under this rule is in derogation of the general principle that a party cannot avoid a decree against him without filing an appeal or cross-objection, it must be exercised with care and caution. The rule does not confer an unrestricted right to reopen decrees which have become final merely because the Appellate Court does not agree with the opinion of the Court appealed from. 13. Ordinarily, the power conferred by this rule will be confined to those cases where as a result of interference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... var Manilal Shah v. Syndicate Bank (supra), dealing with the provisions of Order 41, Rule 22, has been pleased to observe in paragraph 68 as under: It is contended by learned Counsel for the plaintiff that the learned trial Judge has ordered simple interest from the date of the suit at the rate of 15% on the principal sum due under the SODH account 8/82 and at 18.5% on the PCL loan from the date of the suit till the date of the decree. It is submitted by the learned Counsel for the plaintiff that even in respect of the cur rent and future interest upto the date of repayment, compounding of interest ought to have been allowed. Learned Counsel has placed reliance on a decision of the Supreme Court in Vishwanatha Reddy v. Konappa Rudrappa Nadgouda [1969] 3 SCR 33 We do not consider it necessary to go into the correctness of this contention because even if the contention of Mr. Aswatharam, learned Counsel for the plaintiff, is accepted as correct, the relief cannot be granted because it results in enhancing the decretal liability and increasing the decretal amount for which there is no cross-objection or appeal preferred by the plaintiff-Bank. However, reliance is placed on the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree or merely supporting it. If we find that the person seeking to support the decree could in fact do so only by attacking it, then he cannot be heard to support the decree and he must do so either by filing an appeal or filing that by x ray of cross-objection. This incidentally raises the question as to who can file the appeal ? All that Section 96 and Section 100 of the Code prescribe is that an appeal shall lie from every decree. These sections do not prescribe as to at whose instance such an appeal shall lie. It is, however, fundamental in view of the very nature of tailings that an appeal should lie only at the instance of a person who may be aggrieved by the judgment sought to be appealed against. A party who would benefit from change in the judgment, therefore, would have an appeal able interest. 25. What is of importance to note is that the person filing an appeal must have a legal grievance against a decision which had wrongfully deprived him of some thing or affects his title to something. In Corpus Juris Secundum Vol. IV this phrase has been defined thus: Broadly speaking a party or person is aggrieved by a decision only when it operates directly and injuriously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the present case, respondent No. 5 has not made any challenge to the fact or finding that accident had taken place due to the negligence of respondents 1 and 4. The challenge is that there was no negligence of respondent No. 4, or that negligence may be said to be lesser than 50%. The challenge is really to the finding that negligence has been 50% and decree is based on that finding. The consequence of accepting his contention and his contention if upheld, then it would tantamount to saying that decree that had been granted against him by making him liable to 50% of the amount of damages is illegal and it should be set aside or modified, then such a contention or challenge to the finding cannot itself be said to be a challenge to finding, instead it may amount to a challenge to the decree and the decree granted against him. It may result in either modification or such challenge to decree, may result even if in dislodging of the decree with respect to respondent No. 5. But that cannot be permitted without the finding and decree based on that finding being challenged by filing the appeal or cross-objection. Fortunately, it has not been contended that there has been no negligence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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