Kumar Pramod Kurdikeri vs The Police Commissioner and Another

B.V. Nagarathna, J.—This appeal is filed by the injured/claimant challenging the judgment and award passed in MVC No. 530 of 2002 on the file of the Principal Civil Judge (Senior Division) and Additional Motor Accident Claims Tribunal, Hubli, dated 25-5-2007 seeking enhancement of compensation.

The relevant facts of the case are that on 18-6-2002 the claimant was riding his bicycle on P.B. Road, Hubli, when the driver of the Respondent vehicle bearing No. KA-25/G-91 came in a rash and negligent manner and dashed against the claimant, as a result he sustained injuries and he was shifted to hospital. Contending that he had suffered permanent disability, he filed the claim petition seeking compensation on various heads.

On receipt of notice from the Tribunal, the Respondents appeared and filed their statement of objections denying the averments of the claim petition and seeking dismissal of the same.

Based on the above pleadings, the Tribunal framed the following issues:

In support of his case the claimant examined himself as P.W. 1 and Dr. Madiwalappa Barigidada as P.W. 2 and eye-witness-P.W. 3 and got marked Exs. P. 1 to P. 10 while the Respondent did not let in any evidence except getting the insurance policy marked as Ex. R. 1. On the basis of the above material the Tribunal granted Rs. 1,92,735/- with interest at the rate of 8% p.a. from the date of claim petition till deposit. Not being satisfied with the judgment and award the claimant has preferred this appeal seeking enhancement of compensation.

I have heard Sri H.M. Dharigund, learned Counsel for the Appellant and Sri D.N. Kulkarni for Respondent.

The only contention raised on behalf of the Appellant is that the Tribunal has awarded meager compensation of Rs. 54,000/- on the head of loss of future earning by taking the annual income of the Appellant at Rs. 12,000/- whereas even in accordance with the Motor Vehicles Act, 1988, the notional income i.e., normally taken in the absence of evidence is Rs. 15,000/- p.a. and therefore, by taking Rs. 15,000/- as notional income, compensation may be enhanced on the head of loss of future earning capacity.

Per contra, it is submitted by the learned Counsel for the Respondent that the appeal itself is not maintainable inasmuch as the Respondent had filed MFA No. 11758 of 2007 which was dismissed at the stage of admission by this Court by order dated 3-1-2008 and that the Appellant in this case had been notified and therefore having responded in the said appeal as a Respondent, the Appellant cannot maintain an independent appeal challenging the judgment and award of the Tribunal. It is further submitted that on account of principle of res judicata and doctrine of merger create a bar on the Appellant to maintain this appeal. Hence he submits that the appeal be dismissed on the preliminary ground of maintainability. He further submits that the judgment and award passed by the Tribunal was exorbitant and the same was challenged by the Respondent in MFA No. 11758 of 2007 and now that the appeal of the Respondent was dismissed. The judgment and award does not require any modification.

Based on the above submission the following points arise for my consideration:

Whether the claimant can maintain an appeal independently when the appeal filed by the Respondent is dismissed?

If the answer to Point No. 1 is in the affirmative, whether the judgment and award requires any modification in terms of the quantum of compensation?

Section 173 of the Motor Vehicles Act, 1988 reads as follows.--

(1) Subject to the provisions of Sub-section (2), any person aggrieved by an award of a claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:

Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent of the amount so awarded, whichever is less, in the manner directed by the High Court:

Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the Appellant was prevented by sufficient cause from preferring the appeal in time.

(2) No appeal shall he against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.

By virtue of this section, any person aggrieved by an award of the Tribunal can maintain or prefer an appeal to the High Court. Secondly, no appeal can be filed against the award of the Claims Tribunal if the amount is less than Rs. 10,000/-. Therefore, any person who is aggrieved by an award of the Claims Tribunal where an amount in dispute is above Rs. 10,000/-, can maintain an appeal under the said section.

The argument of the learned Counsel for the Respondent is that since it had preferred an appeal and the said appeal was dismissed, by virtue of the doctrine of merger and constructive res judicata, the said judgment in MFA No. 11758 of 2007 is also binding on the Appellant herein. At this stage it is necessary to note that the Appellant in this appeal was the Respondent in MFA No. 11758 of 2007 and that was not the forum for him to question the judgment and award of the Tribunal, rather the restricted role of the Appellant herein in that proceeding was only to get sustained the said judgment and award. Since the appeal filed by the Respondent herein was dismissed at the stage of admission, there was no opportunity for the Appellant herein to file cross-objections under Order 41, Rule 22 of the Code of Civil Procedure, 1908. Under the circumstances the only other alternative that was available to the Appellant is to prefer a separate and independent appeal which is a statutory right granted to every party who is aggrieved by the judgment and award of the Tribunal u/s 173 of the MV Act, 1988.

Learned Counsel for the Respondent adverted to the doctrine of merger to contend that the order of the Tribunal in the instant case has merged with the order of this Court in MFA No. 11758 of 2007 and therefore, the said order operated against all the parties and it could not be reopened by the subsequent Bench of this Court.

In State of Madras Vs. Madurai Mills Co., Ltd., it has been stated that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision, there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.

In Commissioner of Sales Tax, U.P. Vs. Vijai Int. Udyog, which arose under the Uttar Pradesh Sales Tax Act, 1948, it has been stated that where against the order of the Assistant Commissioner rejecting the accounts of the Assessee and reducing his estimated turnover, two separate appeals were filed to the Tribunal - the Assessee claiming acceptance of the accounts and the returned taxable turnover and the Commissioner challenging the reduction of the estimated taxable turnover from Rs. 1,00,000/- to Rs. 65,000/- and the Tribunal without clubbing these two appeals together dismissed the Assessee''s appeal first and then subsequently allowed the Commissioner''s appeal in part, the decision of the Tribunal in Commissioner''s appeal cannot be thrown out by applying the doctrine of merger. Both the Assessee and the Commissioner had a statutory right of appeal to the Tribunal. On account of the mistake of the Tribunal in not clubbing the two appeals the statutory right of appeal of one party could not be negatived. The Hon''ble Supreme Court held that the doctrine of merger did not apply in the instant case as both the Assessee and Commissioner had statutory right to the Tribunal against the decision of the Assistant Commissioner and in exercise of that right, two separate appeals had been filed. On account of the mistake of the Tribunal in not clubbing the two appeals, the statutory right of appeal of one party could not be negatived. It was further held that in a situation like this the doctrine of merger had no application.

It is also pertinent to refer to a decision of a learned Single Judge of this Court in the case of Shri Annasaheb Balesha Waghe, Smt. Chayagouda Balehsa Waghe, Rukmini Balesha Waghe and Akkatai Appasaheb Patil Vs. Shri Appasaheb Dada Pommai, Shri Appaji Satagouda Waghe, Sri Babasaheb Appaji Waghe and Smt. Housabai Appaji Waghe, wherein in the context of the right of an aggrieved person to file cross-objections against an order of the original authority (Tribunal in the instant case) was dismissed. This Court while referring to Order 41, Rule 22 of the Code of CPC held that the provision confers on the Respondent certain rights. Firstly, a Respondent can support a decree. Secondly, the Respondent may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour and thirdly he may also prefer a cross-objection to the decree which be could have taken by way of an appeal. This right to file cross-objection is nothing but the exercise of right to appeal, though in a different form. The right given to the Respondent in appeal to file cross-objections is a right given to the same extent as is a right of appeal to lay challenge to the impugned decree if he can be said to aggrieved thereby. Taking any cross-objection is the exercise of right of appeal takes the place of cross appeal. Thus, it is clear that just as an appeal is preferred by a person aggrieved by the decree so also a cross-objection is preferred by one who can be said to be aggrieved by the decree.

At this stage it is relevant to refer the decision of the Madhya Pradesh High Court, Indore Bench in Himachal Road Transport Corporation and Another Vs. Baldev Kumar Nayyer and Others, wherein it has been enunciated that if in an earlier appeal filed by the Insurance Company the question of just compensation was not considered and the same was dismissed without notice to the claimant, such an order in appeal would not act as a res judicata against the claimants as the claimants can independently could have claim enhancement by filing cross-objections but for the dismissal of the appeal. Similarly in Chandrashekar (Deceased) by L.Rs Vs. The Assistant Commissioner and Land Acquisition Officer, , it has been held that where the said appeal is dismissed by earlier Bench of the Court, cross-objections which are nothing other than an option for the main proceeding will have to be considered independently and the said position of law is settled by a decision of this Court in The Assistant Commissioner and Land Acquisition Officer, Gulbarga Vs. Chandrashekar Balgundgi, . The Division Bench in the above case held that cross-objections could be maintained despite the dismissal of an appeal of the State Government by an earlier Bench. By the same analogy it can be stated that against an order of High Court, if an appeal filed by one of the parties and the same is decided, a SLP filed u/s 136 of the Constitution of India by the party aggrieved by the same order of the High Court is also dismissed, the other party can maintain a separate SLP before the Hon''ble Supreme Court.

The doctrine of merger stated by the Hon''ble Supreme Court in the case of Chandi Prasad and Others Vs. Jagdish Prasad and Others, and relied upon by the learned Counsel for the Respondent has been stated in the context of dismissal of SLP which does not attract the doctrine of merger, but when an appeal is dismissed, the doctrine of merger applies. It has to be understood that the appeal in the instant case is in the context of civil appeal which arises on leave being granted in a SLP and the same is converted into civil appeal and after it is heard on merits and dismissed, then the order of the High Court would get merged with the order of the Supreme Court in the civil appeal.

The said analogy cannot apply in the instant case, where the appeal is rejected at the stage of admission and there was no opportunity for the Court to consider the case from the point of view of the claimant contesting or challenging the award made by the Tribunal. This Court while dealing with MFA No. 11758 of 2007 was only examining as to whether the award amount was exorbitant from the point of view of the Respondent herein, this Court did not apply itself to the question as to whether there was scope for enhancement of the compensation. Obviously, in the appeal filed by the Respondent, the Appellant who was the Respondent in that appeal could have only supported the judgment and award of the Tribunal in the absence of any independent appeal or cross-objections filed by him. Therefore, in my opinion taking note of the decisions referred to above and the provisions of Section 173 of the MV Act recognising the right of every aggrieved person to file an appeal, I am of the considered view that mere dismissal of an appeal filed by one of the parties to an original proceeding cannot be a bar to the other party to maintain an independent appeal. The dismissal of an appeal only affirms the order of the Tribunal. There is no substitution of an order of High Court modifying the order of the Tribunal. Therefore, the other party aggrieved by the order of the Tribunal can always challenge the orders of the Tribunal. Having answered Point No. 1 in the affirmative, Point No. 2 with regard to the quantum of compensation is taken up for consideration.

Under Schedule II to the M. V. Act in the context of Section 163-A while determining quantum of compensation even in respect of non-earning persons, a sum of Rs. 15,000/- is the notional income per annum, I do not see as to why the same standard cannot be applied in the instant case where there was no evidence with regard to the income earned by the Appellant. Taking Rs. 15,000/- as the notional annual income of the Appellant and by applying proper multiplier of the compensation on the head of loss of future income would now be enhanced to Rs. 67,500/- instead of Rs. 54,000/-. The said enhanced amount of Rs. 13,500/- shall carry interest at the rate of 6% p.a. from the date of claim petition till realisation. On such deposit being made, the same shall be released to the Appellant.

The appeal is allowed in part without any order as to costs.