The Oriental Insurance Company Limited, Bangalore vs T.B. Chandraprabha and Another

Hari Nath Tilhari, J.-This appeal arises from the judgment and award dated 27th of April, 1994, delivered by the Additional District Judge and Motor Accidents Claims Tribunal, Mandya, whereby the Tribunal has awarded the compensation to the injured-claimant, who is a respondent as respondent 2 before us as under:

Treatment, diet etc. Rs. 1,00,000.00

Future treatment Rs. 1,00,000.00

Injuries Rs. 1,00,000.00

Loss of earnings of future Rs. 5,00,000.00

Loss of alliance Rs. 50,000.00

Loss of amenities of life Rs. 50,000.00

Pain, shock and suffering Rs. 15,000.00

Total -----------------Rs. 9,15,000.00-----------------

The Tribunal, thus awarded a total sum of Rs. 9,15,000/- with interest at 6% per annum from the date of filing of the claim petition till the realisation with costs assessed at Rs. 500/-.

It may be mentioned here that this appeal has been filed by Oriental Insurance Company only under Section 110-D of the Motor Vehicles Act, 1939.

Oriental Insurance Company has been respondent before the Tribunal.

I have read the judgment prepared by my brother Hon''ble Mr. Justice T.N. Vallinayagam. Brother Vallinayagam, in his judgment has held, and ordered, as under:

(a) Liability of the Insurance Company under the aforesaid policy cannot exceed Rs. 1,50,000.

(b) The Tribunal erred in granting the total compensation to the tune of Rs. 9,15,000.00, which according to him is a huge amount without any basis, and held the same to be illegal, and not sustainable, and he opined that amendment that had been allowed on the basis of which the compensation amount so granted by the Tribunal, was not warranted, and set aside the finding taking the view that quantum assessed by the Tribunal has to be interfered with, and has set is aside and remitted the matter to Tribunal for reassessment.

I, after having gone through the judgment, no doubt agree so far as the first part of the order is concerned, namely, the order holding that, under the policy in question whereunder the vehicle involved in the accident was insured with the appellant, the liability of the Insurance Company cannot exceed as regards compensation amount the limits of Rs. 1,50,000/-, and has the appeal to be allowed, and disposed of laying down that liability of the Insurance Company, as regard amount of compensation is limited to Rs. 1,50,000/- and decree will have to be and stand modified to that extent. Had the judgment and order of Brother Vallinayagam, J., been to that effect only there would have not been any occasion or reason for me to have dictated this separate judgment, but for the second part of his order which he has passed, purporting to act under Order 41, Rule 33 of the Code, this separate order is being passed.

I propose to deal, and express my views on the second part of the order, with which I do not agree with my brother Hon''ble Mr. Justice T.N. Vallinayagam, that is, the setting aside of the award, and remitting the matter to Tribunal for assessment afresh, and I may do hereby give my reasons after narration of few facts.

The facts of the case in the nutshell, as found by the Tribunal as well, are that, on 15th March, 1989, at 10 P.M., at the place near K.S. Shettihalli, Srirangapatna Taluk, in the District of Mandya, when the claimant-respondent was travelling in a Trekker bearing No. CAO 6106 from Mandya to Mysore, then a lorry bearing No. MYH 3550, driven in rash and negligent manner by the driver and owner thereof, namely, respondent 1, before the Tribunal, who is respondent 2, in this appeal came with the high speed from Mysore side to Bangalore side and dashed against the Trekker, and that the claimant-petitioner, who was also travelling in the Trekker, suffered grievous injuries including the fracture on his right hand bone. According to claimant, he was admitted in K.R. Hospital, and thereafter he was getting treated in K.R. Hospital. No doubt, thereafter he was again treated at Mallya Hospital. Claimant asserted that, he was Engineer, working in Bangalore, and was getting the salary of Rs. 2,750/-, per month at the time of accident, but as a result of injuries, now he is unable to move his right hand to do the work, and as such cannot do any work.

Petitioner, as per amended claim petition, claimed a total sum of Rs. 13,10,000/-, as compensation. The details of compensation in original, and in amended petitions are being given herewith:

Total claim as in unamended (Original Petition)

(i) Medical expenses already spent Rs. 1,50,000.00

(iii) Conveyance charges Rs. 5,000.00

(iv) Loss of earnings Rs. 1,50,000.00

Total -----------------Rs. 2,80,000.00-----------------

This original petition was filed on 29-5-1989, within a period of 2 and 1/2 months from the date of accident.

It may be mentioned that during pendency of the petition, as objection to non-impleadment of driver, owner and insurer of Trekker was raised, as such the driver, owner and insurer of Trekker CAO No. 6106, were also impleaded as respondents 3 to 5 to the claim petitions. It may be mentioned further, that on 31-1-1994, the claimant made an application for amendment of the claim petition under Order 6, Rule 17 of the Code of Civil Procedure read with Rule 254 of the Motor Vehicles Rules, 1989, whereunder the amendment, was sought and claim was sought to be enhanced as under:

Medical expenses incurred so far 1,50,000

Pain and suffering 2,00,000

Conveyance and funeral charges etc. 10,000

Loss of future earning 5,00,000

General damages 3,00,000

Further medical expenses in connection with operations suggested 1,50,000

Total ------------13,10,000/-------------

The time was granted for filing objection, times again, to the amendment application till 8-2-1994, as the order sheet indicates. On no objections having been filed neither by the owners nor by any of the respondents, the Tribunal after having perused the application, and affidavit, thereto allowed the amendment, and after the amendment had been allowed, the amendment had been incorporated in the claim petition making the claim for Rs. 13,10,000/-, under the heads indicated in the amendment application. The Trial Court, thereafter granted time for filing of the additional written statement, but no additional written statement was filed. Thereafter, the arguments had been heard, the judgment and award was delivered on 27-4-1994, awarding the total sum compensation at Rs. 9,10,000/-, under heads, as indicated in the earlier part of this judgment.

The Tribunal recorded the finding to the effect that petition was not bad for non-joinder that the respondents failed to prove that, 1st respondent had no valid licence on the date of the application, and answered Issue 4, in the negative.

It further found that rash and negligent driving of the lorry No. MYH 3550 by respondent 1 with high speed was the sole cause of accident which had taken place on 15-3-1989, at the time and place, as asserted in the claim petition. It further found that the respondents before the Tribunal failed to prove that the cause of accident was driving of Trekker CAO 6106 as well as they failed to prove that Trekker CAO 6106 was driven in negligent manner. Having thus, recorded the findings, looking to the age etc., and the period of medical treatment and confinement, Tribunal awarded the compensation, as mentioned earlier under various heads, and in total, to the tune of Rs. 9,10,000/-. The only appellant before this Court is Insurance Company with which the lorry in question has been insured.

We heard Shri S.P. Shanker, the learned Counsel for the appellant-Insurance Company, and the Counsel for the respondents. It may be mentioned that no appeal nor any cross-objection has been filed by either the driver and owner of the lorry nor even by the claimant. As I have mentioned earlier, I do agree with the first part of the order of brother Hon''ble Vallinayagam, J., whereby he has held that liability of the Insurance Company as to compensation was limited in extent to the sum of Rs. 1,50,000/-, as occurrence had taken place earlier to the enforcement of the Motor Vehicles Act, 1988, which was enforced on 1st July, 1989. As the accident in which the claimant had been injured, had taken place on 15-3-1989, as such, Insurance Company is limited to the extent of Rs. 1,50,000/-, as per policy which has been filed before this Court as well.

As regards the question of interference with the award, I may state that it can only be modified with reference to the extent of liability of Insurance Company, and no doubt I am of the view that appeal has to be allowed, and award has to be modified only to the extent, that, it has to be clarified that the Insurance Company-respondent 2, before the Tribunal, namely, the present appellant, is liable to pay to the same, i.e., compensation amount only to the extent of its statutory liability under Section 95, namely, to the extent of Rs. 1,50,000/- and not more. As regards the reminder of the compensation amount, the claimant should be free, and is free to realise it from the owner of the lorry which caused the accident, as award had become final against him, as the owner and the driver of the lorry, namely, respondent 1, before the Tribunal and respondent 2, before this Court has not filed any appeal.

It has been urged and effort was made by the learned Counsel for appellant to satisfy this Court that the compensation awarded is on higher side and excessive and calls for interference with Court in appeal either under Section 110-D of the Act/Section 173 of the Act of 1988 read with Order 41, Rule 33 of the CPC. It may be mentioned here that the respondent 2, before the Tribunal, namely, the Oriental Insurance Company i.e., present appellant during the course of trial of the claim petition had not sought any liberty or permission under Section 170 of the Motor Vehicles Act, 1988, for being permitted to contest the claim of the claimant on all or any of the grounds available to the insured, in addition to the grounds available to the Insurance Company to challenge the claimants'' claim on the grounds available under Section 95 or 96. No doubt, the appellant-Insurance Company, in addition to taking the plea of the extent of its liability, as well tried to raise the pleas in the written statement on the merits of the case, that is as to question of cause of action, and quantum of damages in the Original written statement, but as per Sections 95 and 96 of the Motor Vehicles Act, 1939, which was applicable at the time of occurrence, as well as under the Motor Vehicles Act, 1988 as per Sections 147 and 149 thereof, as has been held also by this Court as well as by the Supreme Court in the undermentioned cases, the right of Insurer to avail and to take the pleas has in defence, been limited and confined in extent to the questions as to its liability either on the breach of condition of the policy or about the extent of liability, and it is ordinarily, not open to the Insurance Company to raise defences which the insured can raise, and that this limitation on pleas of its defence, and the right of Insurer to challenge the award is also limited, that, he cannot and he is not allowed to challenge the award on any ground available to the insured, unless and until the insurer had taken permission at the original stage under Section 170. When I so observe, I find support for my view from the judgment, as held by this Court in the case of "National Insurance Company Limited v Obalesh and Another, ILR 1990 Kar. 1181, as well as by their Lordships of the Supreme Court in the case of Chinnamma George v N.K. Raju, AIR 2000 SC 1565. Their Lordships further observed that: even on the joining of the owner along with itself as appellant, the Insurer cannot be permitted to travel the limits of defences available to the joining of the owner along with itself as appellant, the Insurer cannot be permitted to travel the limits of defences available to the Insurer under Section 95 and 96 of the Old Act or Section 149 of the New Motor Vehicles Act. Their Lordships observed:

"But, the insurer cannot maintain a joint appeal a long with the owner or the driver if defence on any ground under Section 149(2) is not available to it. In that situation, the joint appeal will be incompetent".

In Paragraph 11, their Lordships further observed that:

"That argument was on the quantum of compensation granted. That ground is certainly not available to the insurer for the purpose of filing the appeal".

So, even if the insurer in this case has took the ground about quantum in the appeal, that is not available to him, the question before this Court is: whether this Court can set aside the award on the question of quantum of compensation granted at the instance of the appeal filed by the Insurance Company, and, no appeal having been filed by the owner or driver of vehicle in question, and whether this Court has got power to interfere with the quantum of compensation awarded, in absence of any appeal or cross-objection, if the right of cross-objection was at all available, having been filed by the owner. Firstly, the Motor Vehicles Act, Old or New are almost a complete Code in itself.

Under Old Act, that is, Act of 1939, right of appeal has been conferred on a person aggrieved by the award of the Claims Tribunal, and he can file the appeal within 90 days from the date of award, and appeal could be preferred under Section 110-D of the Act of 1939. Section 110-D, is in the same terms, as Section 173 of the Motor Vehicles Act, 1988. Section 173 of the New Act and Section 110-D of the Motor Vehicles Act, provided the power to the High Court to admit or entertain an appeal which has been filed after expiry of 90 days after sufficient cause for delay is shown in filing the appeal. No doubt Section 173 of the New Act makes further proviso that, if under an appeal, the appellant has been required to pay the amount in terms of award, then such person''s appeal shall not be entertained, unless he deposits Rs. 25,000/-, or 15% of the amount, so awarded whichever is less in the manner directed by the High Court.

Rules under the Act, have been framed with respect to the procedure to be followed before the Claims Tribunal, it had been provided under Old Section 110-C of 1939 Act, that, in holding enquiry, the Tribunal shall follow the summary procedure, and with relation to matters of taking evidence, enforcing attendance of witnesses and compelling the discovery or production of documents or material objects for such other purpose, as they may be prescribed.

Section 110-C provides that the Tribunal shall follow the procedure, as may be prescribed, and for the purpose of Section 195, and Chapter

35 of the Code of Criminal Procedure only, it shall be deemed to be Civil Court.

Under Section 111-A of the Act of 1939, as under Section 176 of the Act, 1988, the powers have been conferred on the State Government to frame the rules for the purpose of carrying into effect the provisions of Sections 110 to 110-C of Act, 1939, in the case of Rules framed under Act of 1939, and under Section 176 of the New Act, State Government''s power is to frame rules to carry out into effect the provisions of Sections 165 to 174, and particular, to prescribe the procedure to be followed by the Claims Tribunal in holding enquiry as well as with regard to powers vested in the Civil Court which may be exercised by the Claims Tribunal, and also to prescribe form and manner in which fees, if any on payment of which appeal may be preferred against the award, and about residuary matters, that is, or any other matter which has to be or may be prescribed.

In exercise of powers under the above mentioned sections, the State Government framed the rules under the Act, and under Act of 1939.

In Karnataka Motor Vehicles Rules, 1963, vide Chapter 7, Rules as have been framed as contained relating to procedure under Act of 1939, the Rules beginning from Rules 342 to 364 deal with the subject, while under Act of 1988, the Karnataka Motor Vehicles Rules, 1989 deal with the procedure before Claims Tribunal are contained in Chapter 7, beginning from Rules 232 to 260. With reference to the appeal material, rule is Rule 256 of the Motor Vehicles Rules, 1989. Rule 256(1) to (3) of the Karnataka Motor Vehicles Rules, 1989 it reads as under:

"256. Form of appeal.-(1) Every appeal against the award of the Claims Tribunal shall be preferred in the form of a memorandum signed by the appellant or an Advocate and presented to the High Court. The memorandum shall be accompanied by a copy of the award.

(2) The memorandum shall set-forth concisely and under distinct heads the grounds of objection to the award appealed from without any argument or narrative; and such grounds shall be numbered consecutively.

(3) Save as provided in sub-rules (1) and (2), the provisions of Order 41 and Order 21 in the First Schedule to the Code of Civil Procedure, 1908 (V of 1908) shall mutandis apply to appeals preferred to High Court under Section 173".

Rule 254 of the New Rules provides, as to which of the provisions of CPC may apply to proceedings before Claims Tribunal, no doubt Order 6 finds a place therein. In Rule 256, it has been provided that, provisions of Order 41, and Order 21 of the First Schedule to the CPC shall apply mutatis mutandis to appeals preferred under Section 173.

The Rule 363 of the Karnataka Motor Vehicles Rules, 1963, specially, Rule 363(i), (ii) and its explanation, which reads as under:

"363. Form of appeal and contents of memorandum.-(i)

Every appeal against the award of the Claims Tribunal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the High Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the award.

(ii) The memorandum shall set forth concisely and under distinct heads the grounds of objection to the award appealed from without any argument or narrative and such grounds shall be numbered consecutively.

Explanation.-For the purposes of sub-rule (i), the expression ''Pleader'' shall have meaning assigned to it in the Code of Civil Procedure, 1908".

13-A. Under Old Rules, it is no where been provide for application of Order 41 to the appeals filed under Section 110-D. No doubt, under Rule 256 of the Karnataka Motor Vehicles Rules, 1989, it has been provided that, save, as provided under sub-rules (1) and (2), the provisions of Order 41, and Order 21 of the First Schedule of the Code of Civil Procedure shall mutandis apply to appeals provided under Section 173, and in view of this new rule, it is beyond doubt, that provisions of Order 41, will apply to the appeals under the Motor Vehicles Act.

In connection with Section 110-D of the Motor Vehicles Act of 1939, read along with earlier rules of 1963, a Full Bench of this Court in the case of K. Chandrashekara Naik v Narayana, AIR 1975 Kant. 18, has observed and laid it down, that:

"As either neither Section 110-D nor the Rules framed under Act of 1939, did expressly lay down the procedure to be followed by High Court in such contingency when the Act has been silent then appellate jurisdiction has to be exercised by the High Court in the same manner, as it exercises its general appellate jurisdiction, so it has to be taken that Order 41, was made applicable, and it was held cross-objection by the respondent was maintainable".

That no doubt, it is to be kept in view as laid down in the case of Superintendent Engineer v B. Subba Reddy, AIR 1997 SC 1747 (sic), with reference to right to file cross-objection and nature thereof after having referred to earlier decision of that point as under:

"(i) Appeal is substantive right. It is a creation of statute. Right to appeal does not exit unless specially conferred.

(ii) Cross-objection is like an appeal, it has all the trappings of an appeal. It is filed in the form of memorandum and provisions of Rule 1 of Order 41 of the Code, so far as these rules relate to form and contents of the memorandum of appeal apply to cross-objection as well.

(iii) Court fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by indigent person also apply to cross-objection.

(iv) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined.

(v) Respondent even though he has not appealed may support the decree on any other ground but if wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the Court like in appeal.

(vi) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order".

Thus, as laid down in the above case by their Lordship cross-objection is nothing but an appeal or cross appeal and has trapping of appeal, as such it is subject to all most those conditions which define and control the right of a party to challenge the decree or order or award as law imposes even with reference to scope of grounds which can be raised. For illustration if a cross-objection is filed at the stage of second appeal under Section 100 of the CPC, scope of ground of objection to decree will be controlled by Section 100 of the CPC, and similarly scope of cross-objection in appeals under Section 110-D of the Motor Vehicles Act, 1939 or under Section 173 of the Motor Vehicles Act will be subject to the provisions of the respective provisions as well as in the case of cross-objection by insurer by Sections 95, 96(2) and 110-D of the Motor Vehicles Act, 1939 or says Sections 147, 149 and 173 of the Motor Vehicles Act, 1988.

The decision in the case of Ravinder Kumar Sharma v State of Assam, AIR 1999 SC 3571, is no doubt deals with Order 41, Rule 22 and has to be read with its context and subject to provision of right of appeal granted under a statute to determine the scope of cross-objection. It is not of any assistance to us.

Here in the present case, it is not necessary to go into this question, as to:

Whether cross-objection could be filed or not, as here in the present case, even if could be filed no appeal or cross-objection has been filed by the respondent, namely, the insured-owner of the vehicle?

There, no doubt that in view of Full Bench decision in K. Chandrashekaras case and Rule 254(3) of the Motor Vehicles Rules, 1989 provisions of Order 41 of the CPC, apply to appeals under Section 110-D of the Motor Vehicles Act, 1939, and Section 173 of the Motor Vehicles Act, 1988, dealing with Order 41, Rule 33 of the Code of Civil Procedure in the case of Nirmala Bala Ghose v Balai Chand Ghose, AIR 1965 SC 1874, it has been laid down after quoting Order 41, Rule 33, as under:

"The 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. Wherein, 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 reopen decrees which have become final merely because the Appellate Court does not agree with the opinion of the Court appealed from".

17-A. From the reading of the above observations laid down and made by their Lordships of the Supreme Court in this case, i.e., Nirmala Bala''s case, supra, it follows:

(i) That the Rule 33 of Order 41, is though widely worded but the powers conferred under Rule 33, are not unrestricted. It does not confer an unrestricted right on the Appellate Court to reopen the decrees which have become final, merely because the Appellate the Appellate Court disagrees or does not agree with the opinion or the findings of the Court appealed from.

(ii) That power under Order 41, Rule 33, is discretionary, and this discretion has to be exercised judiciously, and to the cases, where interference, with the decree, in favour of the appellant necessitates the interference with the decree which has become final by acceptance and acquiescence, only with the purpose to adjust the rights of the parties, and (3) where Appellate Court reaches the conclusion which is inconsistent with the opinion of the Court appealed from and only in order to adjust the claim made by appellant, in order to adjust the rights claimed by appellant, it is necessary to grant the relief to a person who has not appealed. These are the yardsticks and principles to be kept in view, and subject to the principle laid down that there is no unrestricted power, to the Appellate Court nor any such conferred under Order 41, Rule 33 to interfere with or to reopen the decrees which have become final, simply on the ground that Appellate Court does not agree with the opinion, and finding of the Trial Court or Court appealed from.

Their Lordships of the Supreme Court in the above Nirmala Bala''s case, further lay down as under:

"Where any parties allows a decree of the Court of first instance to become final by not borrowing against the decree it would not be opened to another party to the litigation, whose rights or otherwise not affected by the decree, to invoke the powers of Appellate Court under Order 41, Rule 33 to pass a decree in favour of the party not appealing, so as to give the latter the benefit which he has not claimed. Order 41, Rule 33 is primarily intended to confer power upon Appellate Court to do justice by granting relief to a party, who has not appealed, when refusing to do would result in making inconsistent, contradictory and unworkable order".

In case of Choudhari Sahu (dead) by L.Rs v State of Bihar, AIR 1982 SC 98, their Lordships of the Supreme Court followed with approval the law laid down in Nirmala Bala''s case referred to above, and lay down in paragraph 12 as under:

"The object of this rule is to avoid contradictory, inconsistent decisions on the same question in the suit, as 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 Appellate Court does not agree with the opinion of the Court appealed from".

In para 13, their Lordships further laid down:

"Ordinarily the power conferred by this rule will be confined to these cases where as a result of interference in favour of appellant further interference with the decree of the Lower Court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this rule the Court should not loose sight of other provisions of the Code itself nor provisions of other laws, that is, law of limitation or law of Court fees etc.".

In paragraph 14, their Lordships, again observe:

"The Commissioner as well as the High Court committed a manifest error in reversing the finding regarding the allotment of units to various appellants in the absence of any appeal by the State of Bihar when the same had become final and the rights of the State of Bihar had come to an end to that extent by not filing any appeal or cross-objection within the period of limitation. This case, again, lays down the principle that under this Rule, the Court has got no unrestricted power to reopen a decree which has become final, merely on the ground that Appellate Court does not agree with the opinion or the finding of the Court appealed from. In this case it has been emphasised that power is confined only to those cases where interference is necessary on account of interference in favour of appellant, where further interference is necessary, as a result of interference in favour of appellant to adjust the rights of the parties according to justice, good conscience and equity".

In the case of Mahant Dahngit and Another v Sri Madan Mohan and Others, AIR 1988 SC 54, after having referred to provisions of Order 41, Rule 21 and Order 41, Rule 33, their Lordships at para 12 and para 15 at pages 57 and 58 laid down:

"12. Generally, the cross-objection could be urged against the appellant. It is only by way of exception to this general rule that one respondent may urge objection as against the other respondent. The type of such exceptional cases are also very much limited. We may just think of one or two such cases. For instance, when the appeal by some of the parties cannot effectively be disposed of without opening of the matter as between the respondents inter se. Or in a case where the objections are common as against the appellant and co-respondent. The Court in such cases would entertain cross-objection against the co-respondent. The Court in such cases would entertain cross-objection against the co-respondent. The law in this regard has been laid down by this Court as far back in 1964 in Panna Lal v State of Bombay, (1964)1 SCR 980: AIR 1963 SC 1516. After reviewing all the decisions of different High Courts, there this Court observed:

"In our opinion, the view that has now been accepted by all the Courts that Order 41, Rule 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being reopened between the objecting respondent and other respondents, that an objection under Order 41, Rule 22 can be directed against the other respondents is correct. Whatever may have been the position under the old Section 561 the use of the words "cross-objection" in Order 41, Rule 22 expresses unmistakably the intention of the Legislature that the objection has to be directed against the appellant. As Rajamannar, C.J., said in Vadlamudi Venkateswarlu v Ravipati Ramamma, ILR 1950 Mad. 874: AIR 1950 Mad. 379 (FB): "The Legislature by describing the objection which could be taken by the respondent as a "cross-objection" must have deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent, the cross-objection must be an objection by a respondent against the appellant". We think, with respect, that these observations put the matter clearly and correctly. That the Legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against co-respondent is indicated by the substitution of the word "appellant" in the third paragraph by the words "the party who may be affected by such objection".

Their Lordships at para 15, further laid down as follows.- "But that does not mean, that the Math should be left without remedy against the judgment of learned Single Judge. If the cross-objection filed under Rule 22 of Order 41 of the CPC was not maintainable against the co-respondent, the Court could consider it under Rule 33 of Order 41 of the CPC, Rule 22 and Rule 33 are not mutually exclusive. They are closely related with each other. If objection cannot be urged under Rule 22 against co-respondent Rule 33 could take over and come to the rescue of the objector. The Appellate Court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower Court. The Appellate Court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. 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 also pass such other decree or order as the case may require. The words "as the case may require" used in Rule 33 of 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 constraints 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 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 technicalities".

In this case, attention of their Lordships was not invited to the earlier decisions of the Supreme Court in the cases referred above, namely, to the decision of the Supreme Court in Nirmala Bala''s case, which is three Judges Bench decision, as well as to the decision of the Supreme Court in the case of Choudhary Sahu.

In the case of K. Muthuswami Gounder v N. Palayaniappa Gounder, AIR 1998 SC 3118, their Lordships considered the scope and exercise of power under Order 41, Rule 33, in paragraph 12, their Lordships laid down the law at page 3121 as under:

"12. Order 41, Rule 33 enables the Appellate Court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed an appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the Court and the question raised properly arises one (out) of the judgment of the lower Court and in that event the Appellate Court could consider any objection to any part of the order or decree of the Court and set it right. We are fortified in this view by the decision of this Court in Mahant Dhangir''s case. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order 41, Rule 33 of the CPC and each case must depend upon its own facts. The rule enables the Appellate Court to pass any order/decree which ought to have been passed. The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings, ordinarily the Appellate Court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this rule holds good notwithstanding Order 41, Rule 33 of the CPC. However, in exceptional cases the rule enables the Appellate Court to pass such decree or order as ought to have been passed even if such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeals. We are not impressed with argument that the finding as to the nature of Exhibit A. 6 the security deed has become final as the finding operates as res judicata. When the entire matter was still in appeal and any part of the finding could be varied by the Appellate Court it is idle to contend that the same had become final. So also, when the matter had not attained finality and still in dispute the principle of res judicata could not arise. In some case finding recorded at an earlier stage will operate as res judicata if such finding had become final. In the present case that was not the position. The High Court had to find out the rights of the parties arising out of the deed under Exhibit A. 6 and necessarily had to give a finding one way or the other to determine the status of the appellant as puisne mortgagee. In doing so the High Court decided that the document Exhibit. A 6 did not amount to a charge and therefore, the appellant did not derive any rights of puisne mortgagee thereunder. The High Court having so held proceeded further to upset the decree as otherwise if the decree for redemption remained in the face of the finding of non-existence of a charge with the consequent right as puisne mortgagee, the position would be anomalous if not absured. And so, the High Court in the special circumstances arising in this case exercised the discretion vested in it under Order 41, Rule 33 of the CPC. It cannot be said that such a question was not germane to the determination of the matter in issue. To defend the finding in his favour the respondent could contend that the appellant could not claim to be a puisne mortgagee as no charge arises from Ex. A. 6. In that event it cannot be said that there is any inconsistency in the stand of the respondent. Therefore, we find that there is a no merit in the contention of the appellant and the same is rejected".

A reading of the decision of the Supreme Court reveals that in this judgment, their Lordships, have again, emphasised that, as a general rule and as a general principle, a decree is binding on the parties to it, until it is set aside in a appropriate proceedings, and ordinarily the Appellate Court must not vary, or reverse the decree or order in favour of a party, who has not appealed, and this rule holds good notwithstanding Order 41, Rule 33, but in exceptional cases rule enables the Appellate Court to pass such decree or order, as ought to have been passed, even if such decree would have been in favour of party, who have not filed any appeal. Their Lordship''s further observation clearly indicate that in order to find out the rights of the parties arising out of Ex. A. 6. In that case, necessarily Court had to give a finding, as to the nature of Ex. A. 6 to determine the status of appellant as being mortgagee, and it was necessary to determine the status of appellant as being mortgagee. Their Lordships opined, so High Court had to decide, and has decided that Ex. A. 1 did not amount to a charge, and therefore appellant did not derive any right of being mortgagee thereunder, and once it was held it became necessary to upset the decree of the Court below, otherwise there might have been possibility of two contradictory decrees as per observations in paragraph 12.

This case, again appears to follow the line of the decision and the principle laid down in Nirmala Bala Ghose''s case, and the decisions in Mahant Dhangir''s case, in view observation contained in para 12 thereof has therefore to be read on this line, that power under Order 41, Rule 33 is not unrestricted power, and it is not to be exercised merely because Appellate Court holds on some point an opinion or a view distinct or different from the view and finding of the Court or Tribunal below. It is only in case of necessity arising out of the need to give relief to appellant, if it is necessary to interfere with the decree, and to reopen the case, even in favour of non-appealing parties, then and then only it may be reopened.

Their Lordships of the Supreme Court in the case of State of Punjab and Others v Bakshish Singh, AIR 1999 SC 2626, dealing with Order 41, Rule 33 of the CPC observed, and laid down the law vide paragraphs 8 and 9, at page 2628 of the report as under:

"8. This provision gives very wide power to the Appellate Court to do complete justice between the parties and enables it to pass such decree or order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to be exercised has not filed any appeal or cross-objections.

The discretion, however, has to be exercised with the care and caution and that too in rare cases where there has been in consistent finding and order or decree has been passed which is wholly uncalled for in the circumstances of the case. The Appellate Court cannot, in the garb of exercising power under Order 41, Rule 33, enlarge the scope of the appeal, whether this power would be exercised or not would depend upon the nature and facts of each case".

From the reading of the above decisions of their Lordships of the Supreme Court, the following principle do emerge:

(i) That power under Rule 33 of Order 41 has been conferred, no doubt in wide terms and this rule has been expressed in terms which are wide.

(ii) That this discretionary power which the rule confers is not unrestricted powers. That when a party allows a decree of a Court to become final by not appealing against the decree, then it would not be open to any party to litigations, whose rights are not otherwise affected by the decree to invoke the powers of Appellate Court under Order 41, Rule 33 to pass a decree in favour of the party not appealing.

(iii) That Order 41, Rule 33 does not confer any unrestricted right to reopen the decrees which had become or have become final, merely because the Appellate Court did not agree or does not agree with the opinion of the Court appealed from.

(iv) The Order 41, Rule 33, is primarily intended to confer power upon Appellate Court to do justice by granting relief to a party which (party) or who has not appealed, when refusing to do would result in making inconsistent, contradictory unworkable orders.

(v) The discretionary power under this rule has to be applied to the cases where interference in favour of appellants necessitates the interference also with the decree which is, by acceptance and acquiescence has become final, so as to enable the Court to adjust the right of parties.

(vi) That as the object of the rule is to avoid contradictory, and in inconsistent decisions on some question in the same suit, and as, the power under the rule is in derogation of general principle that party cannot avoid a decree against him without filing an appeal or cross-appeal, it must be exercised with care and caution keeping in view the principle that rule does not confer an unrestricted power to reopen the decrees which have become final, merely because Appellate Court does not agree with the view or finding recorded by the Court appealed from, and (vii) That the Appellate Court cannot in the garb of exercising power under Order 41, Rule 33, enlarge the scope of appeal before it.

Keeping the above principles in view, I proceed to examine and consider:

Whether it is a fit case for exercise of powers under Order 41, Rule 33 on the yardsticks laid down by their Lordships of the Supreme Court?

In the present case, i.e., the appeal filed by the appellant-Insurance Company, and the claim made and as can be made by it in the appeal, and grounds of appeal to the extent Insurance Company is permitted to raise to challenge the award or order in view of Sections 147, 149 and 173 of the New Act of 1988, or to the extent permitted by Sections 95 and 96 read with Section 110-D of the Act of 1939, the interference with the order and award of the Tribunal, for the purpose of giving reliefs claimed in the appeal, it is not at all necessary to interfere with the decree or award for total amount of compensation awarded by the Tribunal. The case and claim of the appellant is that, in view of Section 95 of the Motor Vehicles Act, 1939, the liability of the Insurance Company is limited to the extent of Rs. 1,50,000/-, as regards amount of compensation, and not more.

As I have mentioned earlier, there is no dispute on this point. I have no dispute with this proposition nor my brother Hon''ble Vallinayagam, J., has got any dispute on the point that for granting this relief to the appellant, it is only to be provided in the award by modifying it, that so far as the present appellant is concerned, it is liable to pay the compensation amount to the tune of Rs. 1,50,000/-, and the interest thereon without touching the question of either quantum of compensation awarded in toto or any other question as to cause of action, particularly. That the interference with the award in favour of appellant does not necessitate the interference with the award of the Tribunal which has become final, so far as other respondents are concerned, namely, in between the claimant and the owner and driver of the vehicle the lorry in question, who have not appealed against the award, nor have filed any cross-objections. The rights of the parties, namely, appellant-Insurance Company, and the respondents can well be adjusted without interfering with the quantum of compensation awarded, granted to claimant against the insured, i.e., owner or driver of lorry involved.

That exercise of power under Order 41, Rule 33 in the present case will have effect of enlarging the scope of appeal filed by the Insurance Company. The right of Insurance Company to file the appeal under Section 110-D of the Motor Vehicles Act, 1939, in controlled by Sections 95 and 96(2), namely, to the extent of defences available to the Insurance Company under Section 96(2) of the Motor Vehicles Act, 1939 or under Sections 147, 149 and 173 of the Motor Vehicles Act, 1988. In view of these provisions, Insurer''s right to challenge the award is limited in extent, and is controlled by provisions of Section 96, in case of appeals under Section 110-D, and controlled by Sections 147 and 149, in case of appeal under Section 173 of the Act of 1988. It will be appropriate at this juncture to make reference to the following decisions of their Lordships of the Supreme Court.

In the case of Shankarayya and Another v United India Insurance Company Limited and Another, AIR 1998 SC 2968, after having referred to the provisions of Sections 149 and 170, their Lordships of the Supreme Court have been pleased to observe in paragraph 4 at page 2969, as under:

"It clearly shows that the Insurance Company when impleaded as a party by the Court can be permitted to contest the proceeding on merits only if the conditions precedent mentioned in the section are found to be satisfied and for that purpose the Insurance Company has to obtain order in writing from the Tribunal and which should be a reasoned order by the Tribunal. Unless that procedure is followed the Insurance Company cannot have a wider defence on merits than what is available to it by way of statutory defence. It is true that the claimants themselves had joined respondent 1-Insurance Company in the claim petition but that was done with a view to thrust the statutory liability on the Insurance Company on account of the contract of the insurance. That was not an order of the Court itself permitting the Insurance Company which was impleaded to avail of a larger defence on merits on being satisfied on the aforesaid two conditions mentioned in Section 170. Consequently, it must be held that on the facts of the present case, respondent 1-Insurance Company was not entitled to file an appeal on merits of the claim which was awarded by the Tribunal".

Reference may further be made to the two Division Benches'' decisions of this Court, namely, in the case of New India Assurance Company Limited, Davangere v Raja Naik, 1992(2) Kar. L.J. 672 (DB), wherein the Division Bench of this Court considered the scope of appeal under Section 30, in the contest of Sections 149(2) and 173 of the Motor Vehicles Act read with Section 30(1) of the Workmen''s Compensation Act, 1923 laid down the law at page 1333 of the report as under:

"From this it follows as a necessary corollary that an award made by claims envisaged under the Motor Vehicles Act cannot be appealed against by the Insurer by filing an appeal under Section 173 of the Motor Vehicles Act, unless the ground urged in support of such appeal could be any of the grounds in sub-section (2) of Section 149 on which an action for compensation could have been defended by him/it".

Their Lordships further observed as under:

Hence, when Insurer in a proceeding under the Workmen''s Compensation Act cannot defend an action for fixation of the liability of an employer for payment of compensation to his employee for his death or bodily injury on grounds, other than those permitted by the statute under sub-section (2) of Section 149 of the Motor Vehicles Act, it must follow that as a necessary corollary that no appeal by Insurer under Section 30(1) of the Workmen''s Compensation Act, against an award made by the Commissioner could lie on grounds, other than those under sub-section (2) of Section 149 of the Motor Vehicles Act, subject to further conditions that such grounds involve the question of law required to be considered in the appeal".

In the case of Oriental Insurance Company Limited, Bangalore v Smt. Veronica Obrin, 1992(3) Kar. L.J. 80 (DB), the Division Bench has expressed the same view in the contest of Section 96(2) of the Motor Vehicles Act, 1939. A similar question had arisen before me in the contest of Section 96(2) of the Motor Vehicles Act, 1939. A similar question had arisen before me in the case of Obalesh, on an earlier occasion about the scope of right to appeal of the Insurer and under Section 30 of the Workmen''s Compensation Act read with Sections 149 and 173 of the Motor Vehicles Act, and this Court has expressed the same view after having followed the decision of their Lordships of the Supreme Court in the case of British India General Insurance Company Limited v Captain Itbar Singh and Others, AIR 1959 SC 1331, as well as the above referred two Division Bench decisions of this Court in Raja Naik and Veronica Obrin''s case.

Thus, the scope of appeal at the instance of Insurer under Section 110-D of the Act, 1939 read with Section 96(2), thereof or of appeal under Section 173 of the Act of 1988, read with Section 149(2) of 1988 Act, is limited, and confined to the grounds of defence available to the Insurer under Section 149 and grounds available to the insured or owner of the vehicle are not available to Insurer, unless and until, as held in Shankarayya''s case, as well, the Insurer had taken recourse before the Tribunal under Section 170 of the Motor Vehicles Act, and has obtained permission after establishing that claimant and the insured are acting collusively. There being no such case and no such permission was sought before the Tribunal, nor has been asserted to have been claimed, in my opinion, the scope of the appeal, at the instance of Insurer is very limited, and exercise of power under Order 41, Rule 33, which first of all is not necessitated, as relief can be granted, even without recourse to Order 41, Rule 33. If discretion under Order 41, Rule 33, is exercised it impact will be nothing but extending, and widening of scope of appeal filed at the instance of the Insurance Company, and it will be nothing but acting in breach of the dictum of the Supreme Court in the case of Bakshish Singh, as well as, it will run counter to the basic principles of law laid down by the Supreme Court in the case of Nirmala Bala, that question must properly arise out from the judgment of Lower Court in the context of the appeal before the Court, and instance given in paragraph 12, thereof. In this view of the matter, in my opinion, this is not a fit case, even on this ground for exercise of discretionary power under Order 41, Rule 33, to reopen the decree or award, as the relief claimed in the appeal, and to the extent it could be and has been claimed by the appellant can well be granted without disturbing the decree or award which has become final between respondents 1 and 2 on their substance from filing the appeal.

Apart from that, even as regards the merits, I find it is not a fit case for exercise of powers/discretionary power vested under Order 41, Rule 33 of the Code.

That as has been mentioned earlier, the application for amendment was made on 31-1-1994. No doubt, on 19-1-1994, when the evidence had been closed on behalf of the petitioner, Court fixed 27-1-1994, for evidence of respondents. The case was fixed on 28-1-1994, for arguments. On 28-1-1994, the case was adjourned for 29-1-1994, and on 29-1-1994, as records reveal the case was again, adjourned to 31-1-1994. That application for amendment was filed on 31-1-1994 whereby amendment was sought to be made in the relief clause under Heads ''Medical expenses spent'', and pain and suffering, conveyance charges, loss of earning, general damages, and further medical expenses to be incurred.

It has been stated in the affidavit to the amendment application, that:

"When the claim petition was filed on May 1988.

In that claim petition, the claim had been made for a sum of Rs. 2,80,000/-, as compensation, and by that time the amount incurred in expenses had been stated in the petition by that time. It further mentions, even today I am taking treatment in Mental Hospital. Doctors also advised me to go on other operations for replacement of elbow joint, for which amount of Rs. 1,00,000/-, has to be incurred. It is further stated,"that, I further submit that due to accident, I have no opportunities to get employment in Mechanical Engineering. So, it cost my loss of job and income. I further submit that, if only I am not permitted to amend the petition as prayed in the application, I will be put to great hardship, and injustice will be caused"".

It is in these circumstances, the amendment was sought. Law of amendment under Order 6, Rule 17 is that all amendments which are necessary for complete determination of the matter and to do justice must be allowed to be made. An amendment can be made at any stage of proceedings, even at the appellate stage. This has been the view expressed by the Supreme Court in Pirgonda Hongonda Patil v Kalgonda Shidgonda Patil and Others, AIR 1957 SC 363, as well as in the case of Devamma Aithappa and Another v S.B. Nagarajaiah and Others, 1996(5) Kar. L.J. 483, that, the amendment of the claim petition for claiming higher amount of compensation at appellate stage is permissible to be allowed, and can be allowed, in the interest of justice to the injured or to the deceased''s heirs. In this view of the matter, in my opinion the Appellate Court cannot be said to have erred in allowing the amendment, at the stage when arguments were to open. The compensation amount had to be determined by the Tribunal, whatever evidence has been furnished looking to that, and also doing the guess work in the context of injury, pain and suffering, the disability caused to the injured and the like.

Respondent, in spite of opportunity being given to file objections against amendment application, did not choose to file any objections. Even after amendment was allowed, respondents were given opportunity of filing additional written statement, none of them came to file the additional W.S. So, no injustice can be said to have been caused to the respondents by the allowing of amendment, might be at a stage when arguments had to take place, and arguments, no doubt did take place sometime in April, while amendment application was allowed on 8th of February, 1994. In my opinion allowing of amendment at that stage cannot be said to furnish a ground to exercise powers under Order 41, Rule 33, even. No doubt in the original petition, the claimant had claimed Rs. 10,000/-, which has to be taken note of that, by that time, petitioner was hospitalised, and was going under treatment, I mean to say, the petition was filed within a period of two months, and 10 or 12 days from the date of accident, but it has come in evidence that the claimant had been hospitalised for 6 months, and so an out-patient for 7 months, and thereafter, again in Mental Hospital for 27 days. The claimant was admitted in K.R. Hospital, Mysore, on 15-3-1989, and thereafter in Kasturba Hospital, Manipal. He had to go to Manipal Hospital at several times, and he had to stay.

The evidence of P.W. 3, also indicates that, he as admitted in the Kasturba Hospital at Manipal for implant of right numerous, and for construction of right numerous when he had suffered a lot and had been hospitalised for such a long time, that is, more than 6 months and 7 months as in out-patient. His agony, pain and suffering can be visualised, and in such a case the claim of compensation or damage for pain and suffering had been enhanced from Rs. 10,000/- to Rs. 2,00,000/-. May it be a bit exaggerated, but enhancement cannot be said to be unjustified. The Tribunal towards pain and suffering has awarded only Rs. 15,000/-, and awarding of Rs. 15,000/-, towards pain, shock and suffering cannot be said to be excessive grant of or award of compensation for pain and suffering. So amendment application, if it had been allowed cannot be said to have been allowed illegally, and in perverse manner. The Tribunal, no doubt has awarded a sum of Rs. 1,00,000/-, towards medical expenses and treatment and diet etc., and a further sum of Rs. 1,00,000/-, towards future treatment. Question is: Whether it can be said to be on higher side, as mentioned earlier?

The claimant suffered grievous injury, namely, fracture of the shaft right humerous and fracture of shaft of radius and also of ulna on the right side. He has also suffered dislocation of the right elbow joint as well. According to P.W. 1, D.R. Yoganarasimhachar-P.W. 3''s evidence is to the effect that all these fractures were confirmed by X-ray, and there was bad crush injury of right upper limb where the muscles of the arm, forearm all were exposed and irregularly torn. The radial nurve of the right side was also injured. Bones were exposed through the wound. The radial pulse was absent. He was treated by surgery, suturing all the muscles and fixing the bone by a nail. The wound was repeatedly cleaned and dressed. There was deformity of whole of the right upper limb, elbow joint was foil, the shoulder movement was about 40% and according to doctor, the claimant had suffered disability to the extent of at least 60%. The statement of P.W. 4, Dr. R. Venkateswaralu, also indicates the injuries, and states that he was admitted on 28-6-1990, and 28-6-1990, implants from numerous and right radious were removed and suturing of the right bone was done. He was, again readmitted on 11-8-1990, and on 20th August, 1990, reconstruction of right humerous lower 3rd with fibulla illiac crest graft was put, that was again removed.

P.W. 4, indicated that permanent disability of the locomotive system was around 60%, and doctor opined that a second surgery has to be undertaken for unstable right elbow, and for second surgery, doctor further said he, the injured may have to ungo one or two of his right elbow which may cost him to more than Rs. 1,00,000/-, for total replacement surgery. Bed charges, nursing charges, operation and medical charges will be more. The Tribunal also found that so far as the documents and receipts are concerned, receipts of medial expenses to the tune of round about Rs. 52,000/-, have been produced, there must have been other charges of dieting, assistance of persons, and during this period in such circumstances, neither the claim of enhanced medical expenses can be said to be excessive nor the grant of Rs. 1,00,000/- for medical expenses incurred can be said to be disproportionate. For further medical treatment, the claimant definitely would require money, and that the doctors have advised and has stated that the injured claimant has to take more operations, and that operation may cost more than Rs. 1,00,000/-. There is no reason to disbelieve the evidence of the doctor, and so relying on all these evidence if the Tribunal has assessed compensation for further medical treatment and diet, to the tune of Rs. 1,00,000/-, and awarded further sum of Rs. 1,00,000/-, for future treatment, in my opinion, the claimant cannot be said to have been awarded in excessive manner. That when claimant''s one hand from shoulder had become useless, that even the claimant cannot even make daily routine use of that, and that deficiency had been incurred of permanent nature, and for an Engineer, it may cost almost 100% or 99% loss of earning capacity, the award of sum of Rs. 5,00,000/-, towards loss of earning cannot be said to be excessive or exorbitant. The injured has been a young man of only 25. He is being Engineer, he had long expectations, and hopes of earning as Engineer and promotions, and he would have earned increment and promotions in his life, but because of the injury to and disablement of permanent nature of the right hand from shoulder, and according to the doctor''s evidence which supports the evidence of the claimant as well, that he cannot do any work relating to machine, on account of complete deformity of whole right upper limb, his whole future career has completely been ruined and finished.

P.W. 4-Dr. R. Venkateswaralu states:

"Recently, I examined him on 15-12-1993. Clinically his range of motion of right shoulder is restricted, abduction is only around 80�, strength of muscles of the right arm are weak, and co-ordination was not good right elbow is unstable. Hand component dorsiflection is not possible. Hand function is not good. Sensations are hypersaesthesia over the right radial aspect of the thumb and over the right radial aspect of the forearm. Depending upon the above features, his permanent disability of the locomotor system ground 60%. He may have to undergo for another surgery for his unstable right elbow".

There is no reason to disbelieve the evidence of P.W. 1, and his evidence has rightly been believed and relied which shows that at the time of occurrence of accident, the injured was working in Nanjangud, and was getting Rs. 1,600/-, per month. He being B.E. Mechanical, he had chances of getting even a good job as Engineer, and he could have got promotions as mentioned earlier, but for permanent disability, to his right hand, rendering him incapable of working it or using it even for normal user even.

An Engineer''s future earning, even his salary goes high, and if it be taken that he had not suffered disability of the complete right hand, he would have got promotions, and again, high, then in that case on an average, no doubt, it can be taken that he has suffered a loss of almost about Rs. 3,000/-, per month, and if he take Rs. 3,000/-, per month, as the loss, the yearly loss would come to Rs. 36,000/-.

Age of the injured between 26 to 27, at the time of accident, his whole future career of 31 years has been put to random, and therefore, if the figure of Rs. 36,000/-, is multiplied by the multiplier of 18, the loss of earning would come to Rs. 6,50,000/-. Thus, I so find, because an Engineer, or a driver, or a mechanic, for him the right hand is very important, and once the right hand is injured grievously and he suffers from disability of such a nature as depriving him completely user thereof, then really loss of earning can be taken to be 100%. When I so observe, I find support for my view from the decision of this Court in the case of Oriental Insurance Company Limited v Khasim, 1996(1) Kar.L.J. 417, where this Court dealing with the case of driver who sustained permanent injury and disability in his right leg, and doctor opined it to be 50 per cent, but the Court came to the conclusion that for a driver, who has suffered injury in his right leg, and cannot folded it, and there are no proper movements of ankle joint, the loss of earning capacity has to be considered as 100%.

When, I apply this principle here in this case, right hand of the injured, who is Mechanical Engineer, has suffered permanent disability, as mentioned above, it has to be taken to have caused 100% of loss of earning capacity. So when the Tribunal has only awarded Rs. 5,00,000/-, it cannot be said that Tribunal has committed any such error, that it requires to be set aside. In case of injured, there is no question of deducting ?rd of the ground of personal expenses, while assessing loss or economic loss caused to him, because injured has to suffer for his whole life from the disability caused. It is not a case of the claiming or defendant claiming compensation on account of the death of bread earner due to motor accident, where we apply the doctrine of deduction of ?rd on the ground that deceased would have spent ?rd by himself, and so there is no question of any deduction of ?rd, so in my opinion, the Tribunal cannot be said to be wrong or incorrect in awarding the sum of Rs. 5,00,000/-, for loss of future income or by not applying principle of ?rd deduction. Such a deduction is not statutory requirement. The marriage market value of injured claimant had also been reduced, he may not be able to get a good match, as stated by him, and there is no reason to disbelieve when the claimant states that some persons had come to engage for the marriage and they had not offered their girl for marriage, because of the disability suffered by the claimant of his right arm, and right leg was for loss under this head. That award of Rs. 50,000/-, cannot be said to be unjustified. The man cannot make use of his right hand, even for daily necessities, and that must have resulted in humiliation on his part, mental agony, so for loss of amenities of life or for of injuries, etc., whatever amounts have been awarded, it may not such that may require me to exercise power under Order 41, Rule 33. Even otherwise as well the powers cannot be exercised simply on the ground that we or any of us may form a different opinion or view about compensation to be awarded, particularly in such a case, even if we form a different opinion, on the basis thereof, it is not open to us to reopen the decree, and specially when no appeal has been filed by the owner, and driver of the lorry, who has to pay the balance of the compensation amount I mean to say the amount of compensation minus the one or the one which Insurance Company has to pay. Insurance Company''s liability to pay compensation amount is, no doubt, only Rs. 1,50,000/- its appeal can be allowed without taking into consideration the total quantum of compensation. Quantum of compensation, it can be challenged, law has provided specific remedy by way of appeal under Section 110-D of the Act of 1939, or under Section 173 of the New Act to driver or owner of vehicle if insured. The equitable jurisdiction is not to be exercised in favour of the person who sleeps over his right and remedy.

For the reasons given as above, in my opinion this is not a fit case for exercise of powers under Order 41, Rule 33 of the CPC, on the above yardstick tests applied by me, in the matters of or with reference to question of quantum of compensation awarded and when I so opine, I find support for my view from the Division Bench decision of the Madras High Court in the case of National Insurance Company Limited v V. Vasantha, AIR 1988 Mad. 146, wherein their Lordships Sathiadev and Maheswaran, JJ. observed at page 150, at para 10, as under:

This is an appeal preferred by third respondent. The claimants have not preferred any appeal against the dismissal of the claim, as against respondents 1 and 2. In an appeal preferred by third respondent, on claimants being impleaded as respondents they cannot now ask for relief as against respondents 1 and 2 who are impleaded as co-respondents 4 and 5 herein by invoking Order 41, Rule 33 of the CPC. In Madras Motor and General Insurance Company v Katanreddi Subba Reddi, AIR 1974 AP 310 relying upon a Full Bench decision of this Court in Rajagopala Chettiar v Hindu Religious Endowments Board, AIR 1934 Mad. 103, it was held as under:

"It cannot therefore be contended that once the appeal reached the High Court, all the provisions in CPC, applicable to appeals to the High Court are automatically attracted".

"When an appeal was preferred under Section 110-D of the Motor Vehicles Act, the above observation was made. Therefore, this Court would not, in this appeal, deal with a finding which has been arrived at as against respondents 1 and 2 before the Tribunal, merely because they are impleaded herein as respondents 4 and 5".

No doubt, the appeal of the Insurance Company has to allowed, and it has to be held, and it is hereby held that the liability of the Insurance Company, in view of the Insurance policy and the law is limited to the sum of Rs. 1,50,000/-, as compensation amount, and the interest on that sum of Rs. 1,50,000/-. But so far as balance of the amount of compensation and interest thereon is concerned, that has to be paid to claimants and had to be realised by the claimants from the owner, and driver of the lorry concerned.

The award of the Tribunal has to be modified and modified only to this extent, and by this following clarification "that out of the amount of compensation awarded by the Tribunal, the Insurance Company is liable to pay Rs. 1,50,000/-, along with 6% interest from the date of claim, while the remaining amount of about Rs. 7,60,000/-, along with interest at 6% thereon as mentioned in the Tribunal''s award, has to be paid by insured owner and driver of lorry, i.e., respondent 1 in the claim petition, that is, respondent 2, in this appeal to claim petitioner injured i.e., respondent 1 in the appeal".

I disagree and express my disagreement with the remarks contained in the order of my brother Judge against the member of the Tribunal.

This appeal is to be allowed, but the award of the Tribunal with all the above modifications is maintained. The claimant respondent 1 will be entitled to realise from Insurer appellant-Company and appellant is liable to pay to respondent 1 (claimant), the sum of Rs. 1,50,000/- only towards and. out of the compensation assessed by the Tribunal and 6% interest thereon as awarded. Rest of the amount of compensation awarded i.e., Rs. 9,10,000/- minus Rs. 1,50,000/- i.e., Rs. 7,60,000/- with 6% interest thereon as awarded by Tribunal will be payable by and be realisable from the insured i.e., owner-driver of lorry (respondent 1 in claim petition) i.e., present respondent 2 in appeal, to the claimant-petitioner i.e., to present respondent 1.

Their own respective cost of this appeal to be borne by parties themselves.

M.F.A. No. 813 of 1994

The point of law raised under proviso to Section 98(2) of the CPC, is:

(1) Whether exercise of power in this case under Order 41, Rule 33 in the light of the dictum of the Supreme Court in Mahant Dhangir and Another v Madan Mohan and Others, AIR 1988 SC 54: 1987 Supp. SCC 528 is proper?