Code of Civil Procedure, 1908 – Or.XLI r.33 – Power of Court of Appeal – Appellant-claimant met with an accident and sustained grievous injuries – Appellant filed claim petition – Tribunal passed the judgment and order awarding compensation of Rs.5,42,633/along with interest by accepting the permanent disability to the extent of 50% to that particular part of the body – However, the High Court construed functional disability at the rate of 20% rather than 50% as assessed by the Tribunal and reduced the overall compensation from Rs.5,42,633/- to Rs.3,26,833/- – On appeal, held: Or.XLI r.33 does not confer unrestricted rights to interfere with decrees which are not assailed merely because the appellate court does not agree with the opinion of the court appealed from – The Appellate Court must apply its judicial mind – A judgment on merits should not be lightly interfered with or reversed purely on technical grounds unless it has resulted in failure of justice – The High Court could not have reduced the percentage of functional disability from 50% to 20% when there was no challenge to the said finding arrived at by the Tribunal by an appeal or cross objection filed by the Insurance company and in the absence of recording justifiable reasons for doing so – The High Court was not right in its approach in the matter for another reason that the Insurance company had not filed any appeal seeking a reduction in the compensation amount awarded by the Tribunal – Thus, the High Court was not justified in exercising its power u/Or. XLI r.33 of the CPC in the instant case and reducing the compensation from Rs.5,42,633/- as awarded by the Tribunal to Rs.3,26,833/- i.e. a total reduction of Rs.2,15,800/in the compensation amount – Thus, the impugned judgment of the High Court is set aside and the compensation amount of Rs.5,42,633/- awarded by the Tribunal is restored.
Allowing the appeal, the Court
HELD: 1. Upon a plain reading of Order XLI Rule 33 of the CPC, it reveals that the Appellate Court has the power to pass any decree or order which ought to have been passed, and to pass such other decree or order as the case may require. Notwithstanding that the appeal is against a part of the decree, this power may be exercised by the court in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. However, the said power must be exercised with caution or circumspection, particularly, in the absence there being any cross objection or appeal filed by the respondents. Such a power has to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the parties. [Para 13][265-C-E]
2. The Order XLI Rule 33 does not confer unrestricted rights to interfere with decrees which are not assailed merely because the appellate court does not agree with the opinion of the court appealed from. It is the duty of the appellate court to decide the appeal in accordance with law. The appellate court must apply its judicial mind to the evidence as a whole while deciding a case and a judgment on merits should not be lightly interfered with or reversed purely on technical grounds unless it has resulted in failure of justice. [Para 14][265-E-G]
3. In the instant case, although the High Court has placed reliance on the judgment of this Court in Raj Kumar vs. Ajay Kumar – (2011) 1 SCC 343, in view of this Court it could not have reduced the percentage of functional disability from 50% to 20% when there was no challenge to the said finding arrived at by the Tribunal by an appeal or cross objection filed by the Insurance Company and in the absence of recording justifiable reasons for doing so. The injured appellant-claimant had filed the appeal seeking enhancement in the quantum of compensation by contending that he had suffered 70% disability to the particular parts of his body but the Tribunal had overlooked the same and had assessed disability only at the rate of 50%. Instead of considering that contention on merits, the High Court ignored the same and instead gave weightage to the contentions of the respondent-Insurance Company which was to the effect that the computation of functional disability at the rate of 50% was on the higher side and the same had to be toned down and therefore, the power under Order XLI Rule 33 of CPC could be exercised to do complete justice to the parties. This Court finds that the High Court was not right in its approach in the matter for the reason that the respondent – Insurance Company had not filed any appeal seeking reduction in the compensation amount awarded by the Tribunal and consequently, in the appeal filed by the injured appellant-claimant, the contention of the Insurance Company ought not have been allowed by ignoring the plea of the appellantclaimant seeking enhancement in the compensation. The appellant-claimant could not have been worse off than what had been granted to him by the Tribunal, in an appeal filed by him seeking enhancement of compensation. [Para 15][265-G-H; 266A-D]
4. This Court is of the view that the High Court was not justified in exercising its power under Order XLI Rule 33 of the CPC in the instant case and reducing the compensation from Rs.5,42,633/- as awarded by the Tribunal to Rs.3,26,833/- i.e. a total reduction of Rs.2,15,800/- in the compensation amount. Thus, this Court finds it just and proper to restore the compensation i.e. Rs.5,42,633/- awarded by the Tribunal vide its judgment and Award dated 01.07.2017, by setting aside the impugned judgment and award passed by the High Court. [Paras
17 and 18][266-G-H; 267-A-B]
Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 : [2010]
13 SCR 179 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.