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Judgment
In both the appeals, the appellant-defendants are questioning the legality of the common judgment bearing dated 16-5-2014 passed by the
learned District Judge, West Tripura, Agartala in Money Appeal No. 12 of 2013 and Money Appeal No. 13 of 2013 upholding the trial court''s
judgments in Money Suits No. 21 and 22 of 2011 awarding compensations of varying amounts. In these tragic cases, both the brothers died of
electrocution, which is not in dispute, and their legal representative, their father, instituted both the suits claiming compensations, which were
decreed by the trial court.
The facts giving rise to the institution of two suits are virtually one and the same. The respondent is the father of both the deceased, namely,
Shyamal Kalai and Sachis Kalai. On 4-6-2010 at about 1.30 PM, when the said Shyamal Kalai was proceeding on foot for work towards
Bramhyachara, he came into contact with live electric wire, which was lying on the katcha road near his house. On seeing this, his brother, the said
Sachis Kalai rushed to rescue him and in his attempt to rescue him, he also came into contact with electric shock. Both of them were shifted to
Teliamura Gramin Hospital where they were declared dead by the doctor. Teliamura P.S. registered UD Case No. 25/2010 U/s 174 CrPC in that
connection; post mortem examination was performed on their dead bodies. The Medical Officer performing the post mortem examination opined
that the cause of death in both the cases was due to electrocution. The said Shyamal Kalai was aged about 38 years whereas Sachis Kalai was 30
years old at the time of the incident. Both were laborers by profession and were earning Rs.4,000/- per month each on average. Claiming that both
the deceased died due to the negligence and carelessness of the appellant- Corporation, the respondent instituted the two suits separately for a
compensation of Rs.8,00,000/- each for the death of his two sons. Both the suits were contested by the appellants by filing their written statements
wherein they denied any responsibility for the death of the two deceased and claimed that they were very careful in maintaining their electric lines
and that the accidents did not place for any negligence of their employees. They also denied that both the victims did not die by coming into contact
with any live wire of the Corporation.
On the pleadings of the parties, the learned Civil Judge (Senior Division), Agartala framed the following issues:
Whether the suit is maintainable in its present form and nature?
Whether the deceased Shyamal Kalai died out of electrocution?
Whether the plaintiff is entitled to get any decree as prayed for?
Whether the plaintiff is entitled to get any other relief/reliefs?
The plaintiff-respondent examined three witnesses including himself and exhibited some documentary evidence to substantiate his claims. No
evidence was, however, led on behalf of the appellants. At the conclusion of the trial, both the suits were decreed i.e. awarding a sum of
Rs.4,12,500/- with interest @8% from the date of instituting the suit in the case of Money Suit No. 22/11 and a sum of Rs.3,88,500/- with the
same rate of interest from the date of instituting the suit in the case of Money Suit No. 21/11. Raising grievance against the two judgments, the
appellant-Corporation preferred Money Appeals No. 12 and 13 of 2013 before the learned District Judge, West Tripura. The learned District
Judge after hearing both the parties dismissed the appeal. Aggrieved by this, the two second appeals are filed by the appellant-Corporation.
While admitting both the appeals, this Court formulated the following question to be a substantial question of law:
Whether the compensation as calculated by the trial court and as affirmed by the appellate court is according to the law pronounced by the Apex
Court?
The main contention of Ms. R. Purkayashtha, the learned counsel for the appellants in both the appeals is that when the respondent had
admitted in his examination-in-chief that he was a daily laborer, which amounts to saying that he was not depending on the income of his deceased
sons, the learned civil court could not have awarded any compensation to him in the light of the decisions of the Apex Court in Sarla Verma (Smt)
and others v. DTC and another, (2009) 6 SCC 121, Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 and as affirmed by the Constitution of
the Apex Court in National Insurance Co. Ltd. v. Pranay Sethi and others, Special Leave Petition (Civil) No. 25590 of 2014; the respondent is
not entitled to any compensation at all. Refuting the contention of the learned counsel for the appellants, Mr. S. Deb, the learned senior counsel for
the respondent contends that the respondent in his examination-in-chief has categorically affirmed that he was a dependent of the two deceased
and unequivocally denied in his crossexamination that he was not depending on the income of the deceased, in the absence of any other evidence
to the contrary adduced by the appellants, the trial court and the appellate court were correct in awarding the compensations to him. Assailing the
impugned judgment, it is also contended by the learned senior counsel that the learned civil court is wrong in not adding 40% each of the
established income of both the deceased since both of them were below 40 years old at the time of the accident. The learned senior counsel also
submits that this Court, in terms of the decision in Pranay Sethi and others (supra), increase the loss of estate to Rs.15,000/- from Rs.25,000/- and
funeral expenses from Rs.2,000/- to Rs.15,000/-. It is the contention of the learned senior counsel that even without filing cross objection, the
respondent is entitled to avail of the benefits of the law laid down by the Apex Court in Pranay Sethi case (supra) as this Court is bound to follow
the decision of the Apex Court. According to the learned senior counsel, the respondent in an appeal can, without filing cross objection, attack an
adverse finding upon which a decree in part had been passed against him for the purpose of sustaining the decree to the extent the lower court
dismissed the suit against him. To fortify his contention, he relies on Ramanbhai Ashabhai Patel v. Dabhi Ajitkumar Fulsinji and ors, AIR 1965 SC
On the other hand, the learned counsel for the appellant, however, contends that the respondent, in the absence of cross-objection, cannot
seek more compensation than the ones already awarded by the courts below. Reliance is placed by the learned counsel upon Banarsi and others v.
Ram Phal, (2003) 9 SCC 606 and the State of UP and another v. Shri Anand Swarup, (1974) 1 SCC 42 to buttress her contention.
I have carefully considered the rival submissions advanced by the learned counsel appearing for the parties. I have also perused the impugned
judgment and other materials on record. In my opinion, there is no substantial question of law in this appeal inasmuch as the calculation of the
compensation arrived at the trial court as affirmed by the appellate court in a concurrent finding with respect to the dependency of the respondent
on the income of the deceased does not suffer from any perversity. At the time of the accident resulting in the death of his two sons, he must have
been about 62 years old and could hardly get gainful employment and had to depend on the incomes earned by his deceased sons. No evidence
was otherwise adduced by the appellant to show that he was earning sufficient income to sustain himself and was not supported by his deceased
sons. Moreover, though the Apex Court in Sarla Verma case (supra) held that subject to the evidence to the contrary, the father is likely to have
an income of his own and will not be considered as a dependent and the mother alone will be considered as a dependent, as already noticed, when
the appellant did not adduce any evidence to prove that the respondent was depending on the incomes of the deceased. In that view of the matter,
the quantum of compensation awarded by the courts below cannot be said to contrary to the law laid down by the Apex Court. Consequently, the
concurrent findings of the courts below do not warrant the interference of this Court.
On the question of further reliefs claimed by the learned senior counsel, I am afraid, his contention must fail when the respondent has chosen not
file a cross-objection. In the absence of cross-objection or cross-appeal, the appellant cannot be reduced to a position worse than if he had not
appealed. The law is now well-settled by the Apex Court in Banarsi and others (supra) where it was so held:
The fact remains that to the extent to which the decree is against the respondent and he wishes to get rid of it he should have either filed an
appeal of his own or taken cross-objection failing which the decree to that extent cannot be insisted on by the respondent for being interfered, set
aside or modified to his advantage. The law continues to remain so post-1976 amendment. In a suit seeking specific performance of an agreement
to sell governed by the provisions of the Specific Relief Act, 1963 the court has a discretion to decree specific performance of the agreement. The
plaintiff may also claim compensation under Section 21 or any other relief to which he may be entitled including the refund of money or deposit
paid or made by him in case his claim for specific performance is refused. No compensation or any other relief including the relief of refund shall be
granted by the court unless it has been specifically claimed in the plaint by the plaintiff. Certainly the relief of specific performance is a larger relief
for the plaintiff and more onerous to the defendant compared with the relief for compensation or refund of money. The relief of compensation or
refund of money is a relief smaller than the relief of specific performance. A plaintiff who files a suit for specific performance claiming compensation
in lieu of or in addition to the relief of specific performance or any other relief including the refund of any money has a right to file an appeal against
the original decree if the relief of specific performance is refused and other relief is granted. The plaintiff would be a person aggrieved by the decree
in spite of one of the alternative reliefs having been allowed to him because what has been allowed to him is the smaller relief and the larger relief
has been denied to him. A defendant against whom a suit for specific performance has been decreed may file an appeal seeking relief of specific
performance being denied to the plaintiff and instead a decree of smaller relief such as that of compensation or refund of money or any other relief
being granted to the plaintiff for the former is larger relief and the latter is smaller relief. The defendant would be the person aggrieved to that extent.
It follows as a necessary corollary from the abovesaid statement of law that in an appeal filed by the defendant laying challenge to the relief of
compensation or refund of money or any other relief while decree for specific performance was denied to the plaintiff, the plaintiff as a respondent
cannot seek the relief of specific performance of contract or modification of the impugned decree except by filing an appeal of his own or by taking
cross-objection.
We are, therefore, of the opinion that in the absence of cross-appeal preferred or cross-objection taken by the plaintiff-respondent the first
appellate court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the
appellants the first appellate court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have
deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the
money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the first appellate court has
done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out-and-out
decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has
neither filed an appeal nor taken any cross objection.
The result of the foregoing discussion is that there is no merit in both the appeals, which are, accordingly, dismissed. However, the parties are
directed to bear their respective costs. Transmit the LC records forthwith.