Ignatia Kujur and Others vs National Insurance Co. Ltd. and Another

M.Y. Eqbal, J.—The claimants-appellants being aggrieved and dissatisfied with the amount of compensation awarded by the Motor

Accidents Claims Tribunal, Ranchi, in Compensation Case No. 85 of 1991 filed this appeal for the enhancement of compensation amount.

2 The claimants-appellants as heirs of late William Kujur filed a claim case before the Claims Tribunal, Ranchi, for the grant of compensation on

account of death of William Kujur in a motor vehicle accident.

The case of the claimants-appellants is that when the deceased was going to H.E.C. on 25.3.1991 by his Rajdoot motor cycle he was killed by

a Trekker bearing the registration No. BPM 2382 which was being driven rashly and negligently. According to the claimants the deceased was

employed in H.E.C. as the Assistant Foreman and he was aged 49 years. The deceased was getting salary of Rs. 3858.28 per month.

The owner of the Trekker appeared and filed written statement stating, inter alia, that the Trekker was insured with respondent National

Insurance Co. Ltd., and, therefore, even if the compensation is awarded the insurance company shall be liable to pay compensation. The

respondent National Insurance Co. Ltd., contested the claim by filing written statement taking various defences including that the accident did not

take place due to rash and negligent driving of the Trekker but due to the negligence of the deceased. The Claims Tribunal after considering the

facts and the evidence brought on record came to the conclusion that the accident took place due to rash and negligent driving of the Trekker. On

the issue of compensation the Claims Tribunal assessed the annual dependency at Rs. 9,000 and by adopting multiplier of 16 years of purchase

assessed the compensation at Rs. 1,44,000. Accordingly, the Claims Tribunal awarded a lump sum of Rs. 1,44,000 together with 12 per cent

interest per annum and held that the same is payable by the National Insurance Co. Ltd. Hence this appeal by the claimants appellants for the

enhancement of compensation on the ground that the quantum of compensation awarded by the Tribunal is not just and reasonable.

When this appeal was taken up for hearing an objection was raised by the respondent insurance company regarding the competency of this

appeal on the ground that the claimants-appellants after the passing of the award by the Claims Tribunal, having entered into a compromise and

thereby received the entire compensation amount awarded by the Claims Tribunal together with interest in full and final satisfaction of the award. In

this regard an application has been filed by the respondent insurance company for passing appropriate order. It is stated that as per the direction

given in the award the respondent insurance company handed over two cheques being the total compensation amount and uptodate interest to the

claimants and the latter executed a receipt stating therein that they have received the payment in full and final settlement of the award. Copies of

those receipts have been filed and annexed as Annexures A and B to this application. Mr. P.C. Roy, learned counsel appearing for the insurance

company, therefore, submitted that in view of the fact that the appellants have received the amount in full and final settlement of the award they

cannot prosecute this appeal any more which is liable to be dismissed.

In view of the preliminary objection raised by the respondent insurance company the first question to be decided is whether the receipt of the

compensation amount in full and final settlement of the award can be pleaded as a bar to the prosecution of the present appeal.

A right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior

Tribunal to superior Tribunal vested in a party when proceedings are first initiated in and before a decision is given by the inferior court, such a

vested right cannot be taken away except by express enactment or necessary intendment. However, an agreement not to appeal is for

consideration and is otherwise good and valid and enforceable, [see 14 Moore IA 203].

The conduct of appellants is always an important element for consideration whether it precluded them from filing appeal. It is true that the

appellants could accept satisfaction of decree of the trial court and yet prefer an appeal against that decree. That may well have brought them

within the principle that when the claimant has elected to proceed in some other manner he cannot ask for other relief. This is what Scrutton, L.J.

said in Dexters Ltd. v. Hill Crest Oil Company Brade Ford Ltd. (1926) 1 KB 538:

So in my opinion you cannot take the benefit of a judgment as being good then appeal against it as being bad.

It was further observed:

It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right.

This illustrates the rule that a party cannot approbate and reprobate at the same time. These propositions are so well known that no possible

exceptions can be taken to them.

In the case of Anand Das v. Asburner & Company (1875) Allahabad 267, it was held by Full Bench of Allahabad High Court that if in

consideration of a decree-holder giving a judgment-debtor time to satisfy the decree, the judgment-debtor agreed not to appeal but did appeal in

spite of agreement, the appeal could not go on as the appellate court is bound by rules of justice, equity and good conscience to give effect to the

agreement arrived at between the parties. This decision was approved and followed by a Bench of Calcutta High Court in the case of Pratap

Chandra v. Arathom (1882) 8 Cal 455.

In the instant case it appears from Annexures A and B that the following receipts were given by the claimants-appellants:

Annexure A:

Received with thanks from the National Insurance Co. Ltd. an account payee .cheque No. 020000 dated 19.6.1992 for Rs. 27,358 (Rupees

Twenty-seven thousand three hundred fifty-eight only) drawn on Central Bank of India, Ranchi in full and final settlement of the award passed by

the Judicial Commissioner, Ranchi in Comp. Case No. 85 of 1991 u/s 140 of the Motor Vehicles Act, 1988 (Ignatia Kujur v. Rameshwar Singh).

Annexure B: Money Receipt

I, Ignatia Kujur w/o late William Kujur, the claimant of Compensation Case No. 85 of 1991 have received the payment in full and final satisfaction

of the award passed u/s 166 of the Motor Vehicles Act and have received the cheque being No. RNC/H 001449 for Rs. 1,43,750 drawn in the

name of Ignatia Kujur of Central Bank of India, Ranchi, dated 11.10.1993.

Mr. L.K. Lai, learned counsel appearing for the appellants submitted that right of appeal is a statutory right and the same cannot be taken

away merely because the claimants-appellants received the amount in full and final settlement of the award. In support of his contention learned

counsel relied upon a decision of the Bombay High Court in the case of Kunjamma Mathai Vs. Marcelo Fernandes and Others, . The ratio laid

down in that case, in my opinion, does not support the case of the appellants. In that case before the Bombay High Court it was specific plea of

the claimant-appellant in the memorandum of appeal that because she was in paucity of finance and urgent need of financial aid she accepted the

payment from the insurance company. That apart, she further stated in the memo of appeal that she was pressurised into signing the receipt stating

that it was in full and final settlement towards the award. Their Lordships took notice of the aforesaid fact and also the fact that it was not a case

where the appellant suppressed the passing of the receipt by her and, on the contrary, came out on her own at first opportunity that she was

pressurised into passing the receipt. In the instant case the appellants have not denied or disputed the payment of the award amount together with

interest and execution of receipts in full and final settlement of the award. Here it is not the case of the appellants that the receipts were executed on

being pressurised by the insurance company. The appellants have not come with the case that due to paucity of fund or because of any financial

crisis they accepted the award. On the contrary from perusal of Annexures A and B it appears that while receiving the cheques and discharging the

receipts in full and final settlement of the award, her lawyer was also present and she was identified by her lawyer who also put his signature.

Moreover, the receipts do not show that the appellants received the amount without prejudice to her right to pursue the appeal. As a matter of

fact, having been fully satisfied with the award passed by the Claims Tribunal she received the amount in full and final settlement of the award. It is

an intentional and voluntary relinquishment of a known right with full knowledge of material facts. Curiously enough the amount of compensation

was received by the appellants in October, 1993 but till the filing of the application by the insurance company the appellant did not disclose this

fact in this appeal nor came with a case that the compensation amount so awarded by the Claims Tribunal was received reserving the right to

pursue the appeal. Admittedly, the full and final satisfaction was acknowledged by a receipt in writing and the amount was received unconditionally.

Accordingly, I hold that the appellants having acknowledged the receipt and also accepted the total amount of compensation in full and final

settlement of the award, there is accord and satisfaction. The appellants, therefore, cannot be said to be aggrieved by the award which is the

subject-matter of this appeal. In such circumstances, this appeal is liable to be defeated as the appellants have received the amount in full and final

settlement towards the impugned award.

In the result, this appeal cannot proceed any further and is dismissed.