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Judgment
Honourable Mr. Justice G. Rajasuria
This second appeal is focussed by the third defendant animadverting upon the judgment and decree dated 30.11.2009 made in A.S.No. 37 of 2006 on the file of the learned District Judge, Kanyakumari at Nagercoil, in confirming the judgment and decree dated 22.12.2005 made in O.S.No. 252 of 2003 on the file of the learned II Additional Sub Judge, Nagercoil.
The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
Shorn and bereft of unnecessary details, the germane facts could pithily and precisely be set out thus:
The plaintiffs being the husband and the daughter of the deceased lady by name Thangabai, claimed compensation in a sum of Rs.4,00,000/- (Rupees Four Lakhs only) in connection with the untimely death of her in an accident, whereby stone from the illegally run quarry on being blasted flew and hit her and caused her death.
The defendants 1 and 2 who happened to be the contractors, filed their written statement resisting the suit.
The third defendant, who was running the said quarry, filed the written statement as against the claim of the plaintiffs.
The defendants 4 and 5, being Government Officials also filed their written statement opposing the claim as against them.
Whereupon the trial Court framed the relevant issues.
During trial, P.W.1 to P.W.3 were examined and Exs.A.1 to A.25 were marked on the side of the plaintiffs. D.W.1 to D.W.4 were examined and Exs.B.1 to B.12 were marked on the side of the defendants.
Ultimately, the trial Court decreed the suit directing the third defendant to pay a sum of Rs.4,00,000/- (Rupees Four Lakhs only) on his behalf and on behalf of the defendants 1 and 2 with interest at 12% per annum from the date of filing of the suit till the date of realisation with costs.
Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court, the third defendant preferred the appeal for nothing but to be dismissed.
Challenging and impugning the judgments and decrees of both the Courts below, the third defendant preferred this second appeal on various grounds and also suggesting the following substantial questions of law:
(1) Whether the liability can be fastened against this appellant when he is not in anyway connected with the sad incident?
(2) Whether the Appellant is liable to pay the Compensations when 3rd Respondent is said to have exploded the rock with explosive materials and when there is no vicarious liability between Appellant and 3rd Respondent?
(3) Whether the courts below had erred in not coming to the conclusion that the alleged sad incident is due to ''Act of God''?
(4) Whether the Courts below can award interest from the date of the death of the deceased when the suit is filed exactly 11 months?
(5) Whether the Courts below is correct in awarding in 12% interest on the damages ordered?"
My learned Predecessor while admitting the second appeal framed the following substantial question of law:
Whether the Courts below are right in holding that the appellant is liable to pay compensation?
The dictum laid down by the Honourable Apex Court in the following decisions could fruitfully be referred to:
(i) Hero Vinoth (minor) Vs. Seshammal, .
(ii) Kashmir Singh Vs. Harnam Singh and Another, .
(iii) State Bank of India and others v. S.N.Goya reported in 2009 1 L.W. 1.
A plain reading of those precedents would reveal and demonstrate that u/s 100 of the Code of Civil Procedure, a Second Appeal cannot be entertained, unless any substantial question of law is involved.
With that in mind, I heard both sides; whereupon, I thought that there is absolutely no ground to entertain the second appeal on the actual merit of the matter, so to say, as to whether the deceased lady died because of the alleged accident or whether she died in the course of employment or whether the third defendant is responsible, because the findings of both the Courts below are based on appreciation of evidence and I could see no perversity or illegality in the judgments rendered by both the Courts below on the substantive merit of the matter. However, in the process of hearing both sides, I felt that a substantial question of law should be framed as glaringly there is a mistake in the judgments and decrees of both the Courts below in view of they having awarded the interest at the rate of 12% p.a., even from the date of decree. Hence, in that connection, the substantial question of law is reframed thusly:
Whether the Courts below were justified in awarding interest at the rate of 12% p.a., from the date of decree till date of realisation in addition to having awarded the interest at 12% p.a., from the date of suit till date of decree?
Tersely and briefly, the arguments as advanced by the learned Counsel for the third defendant would run thus:
As per Section 34 of the Code of Civil Procedure, the post decree interest cannot exceed 6% p.a., and time and again, the Honourable Apex Court held that it is mandatory in nature and there is no question of the Court exercising its discretion in awarding interest more than 6% p.a., in a case of this nature.
However, the learned Counsel for the plaintiffs would submit that this is a pathetic case which warrants sympathy from the Court. He would echo the cri de coeur of the plaintiffs to the effect that the plaintiffs who are the husband/widower and the minor daughter of the deceased, are put to untold misery and sadness; in fact, an appropriate and apposite, legal and correct calculation of compensation would exceed Rs.4,00,000/- (Rupees Four Lakhs only); wittingly or unwittingly, the plaintiffs simply prayed for awarding a sum of Rs.4,00,000/-(Rupees Four Lakhs only) in the plaint. At the most, their prayer for more than a sum of Rs.4,00,000/- (Rupees Four Lakhs only) could be taken as a Ballpark figure or one based on back of the envelope calculator and not strictly emerged out of a strict legal calculation of compensation. This is a singularly singular case wherein this Court can do substantial justice by granting more compensation by invoking Order XXI Rule 33 of the CPC and also by enhancing the interest already awarded.
Section 34 of the CPC is extracted hereunder for ready reference:
Interest.- (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent. per annum as the court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit:
Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent. per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.
Explanation I. - In this sub-section, "nationalised bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).
Explanation II. - For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.
(2) Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.
[Emphasis supplied]
A mere poring over and perusal of the aforesaid provision would leave no doubt in the mind of the Court that the post decree interest should only be 6% p.a. in matters of this nature. This is not a commercial transaction and the mandate of law is to the effect that while awarding interest on compensation and that too, on the post decree level, it should not exceed 6% p.a. However, both the Courts below fell into error in awarding interest at 12% p.a. from the date of suit till date of realisation. Whereas the interest from the date of the suit till decree should be 12% p.a. and the interest from the date of decree till date of realisation should be 6% p.a., on the sum of Rs.4,00,000/- (Rupees Four Lakhs only) awarded.
As such, this obvious error warrants to be rectified while this Court is exercising its power u/s 100 of the Code of Civil Procedure.
The contention of the learned Counsel for the plaintiffs that this Court could suo motu enhance the compensation, in my considered view, fails to carry conviction with this Court, for the reason that the plaintiffs did choose to restrict their claim in the plaint and this is not a case under the Motor Vehicles Act where a different approach prevails and this case is being processed purely under the Code of Civil Procedure.
In this factual matrix, not to put too fine a point on it, beyond the pleadings, this Court is not expected to travel and grant reliefs.
I recollect the famous maxim "Judicis est judicare secundum allegata et probata." [It is the proper role of a judge to decide according to the allegations and proofs.]
Accordingly, if viewed, it is clear that interference is warranted in the judgments and decrees of both the Courts below only to the limited extent of restricting the post decree interest at 6% p.a., and with that modification, the rest of the portions of the judgments and decrees of both the Courts below warrants no interference. Accordingly, the substantial question of law is answered.
On balance, the second appeal is disposed of as indicated above. Consequently, the connected Miscellaneous Petition is closed. No costs.