U.S. Tripathi, J.
1. This first appeal from order has been preferred against the judgment and award dated 21.12.1983 passed by Motor Accident Claims Tribunal/District Judge, Pauri Garhwal camp at Kotdwara in Motor Accident Claim Case No. 28 of 1976, awarding a sum of Rs. 36,000 with simple interest at the rate of Rs. 9%per annum from the dale of application, i.e.. 11.9.1983 upto the dale of payment.
2. The facts, giving rise to this appeal, briefly stated, are that the respondent No. 1 filed claim petition against the appellant and respondent No. 2 under Section 110A of Motor Vehicles Act, 1939 for compensation amounting to Rs. 45.000 on account of death of Mohd. Idris, a boy of 17 years old in a motor accident with the allegations that the deceased was a labourer and was working with appellant. He was getting a sum of Rs. 150 per month as his wages. On 6.6.1969 at about 1 p.m. truck No. UPY 4583 owned by appellant and insured with respondent No. 2 was coming from forest to Kotdwara. The deceased was sitting on the said truck as labourer of the appellant. When the above truck reached at a distance of one mile from Kotdwara at about 1 p.m.. the above truck due to rash and negligent act of its driver dashed against 'pusta' near road. The deceased fell down of the truck and sustained injuries. He was brought to the male hospital. Kotdwara, but he expired. Due to untimely death of the deceased, the respondent No. 1 suffered pecuniary loss at the rate of Rs. 1200 per annum.
3. The appellant contested the petition and contended that deceased was neither his servant nor in any service, but was a student. His age was about 12 years. He met with the accident due to voluntary fall from the vehicle in question as he had sat in the vehicle in question without the knowledge of the driver or the conductor. The accident was not caused due to any negligence or mistake of the driver or the conductor of the vehicle in question. The respondent No. 1 was, therefore, not entitled to any compensation, as he admitted that the death of the deceased was caused due to his voluntary fall from the vehicle in question.
4. The Insurance Company respondent No. 2 contended that claim petition was barred by time and the amount of compensation claimed was excessive. The accident tookplace due to contributory negligence of the deceased and the maximum statutory liability of the Insurance Company was upto Rs. 20,000 only.
5. The Motor Accident Claims Tribunal framed necessary issues arising out of above pleadings of the parties and on considering the evidence of the parties, held that Mohd. Idris deceased died in the accident with vehicle No. UPY 4583 due to rash and negligent act of the driver and the deceased was employed as labourer of the appellant at the time of accident and that there was no negligence on the part of deceased. It further held that the claim petition was not barred by time as delay in filing the petition was condoned by the Tribunal, vide its order dated 31.7.1998. Regarding quantum of compensation, the Tribunal held that the age of the deceased was about 17 years and he would have earned at least Rs. 300 per month. His annual income was assessed at Rs. 3,600 and by applying multiplier of 15, the amount of compensation was assessed at Rs. 54,000. On deducting Rs. 9,000 as personal expenses of the deceased, the compensation was assessed at Rs. 45,000. The Tribunal further deducted 20% of the compensation on account of lump sum payment and accordingly, awarded a sum of Rs. 36,000. It further held that liability of Insurance Company was to the extent of Rs. 20,000 only. With these findings, the Tribunal awarded a sum of Rs. 36,000, out of which Rs. 16,000 were to be paid by the appellant and remaining Rs. 20,000 by respondent No. 2, the Insurance Company along with interest @ Rs. 9% per annum.
6. Aggrieved with the above award, the owner of the vehicle has preferred, this appeal.
7. I have heard learned counsel for the appellant and respondent No. 1, as none appeared from the side of respondent No. 2.
8. The death of Mohd. Idris in a motor accident is not disputed. According to claimant respondent No. 1, the death of deceased was caused due to rash and negligent driving ofthe driver of truck in question, while according to appellant, the deceased boarded the truck unauthorizedly and fell down from the same and he died out of his own negligence. On the factum of occurrence and rash and negligent act of the driver of the truck, the respondent No. 1 examined Munna (P.W. 4), who is witness of the occurrence. On the other hand, the appellant examined Man Bahadur, the driver of the truck. Besides it, the claimant respondent No. 1 also relied on report addressed to Inspector In-charge. P. S. Kotdwara. Appellant denied his signature on the above report, but the claimant respondent No. 1 examined hand writing expert R.P. Gupta (P.W.1), who compared the hand writing on the above report of appellant Kishan Lal with his specimen signature. The learned Tribunal on considering the evidence of Munna (P.W.4), Man Bahadur driver of the truck and the above report concluded that accident took place due to rash and negligent act of the driver of the truck. I have considered the above finding in the light of evidence of above witnesses, which has been annexed as Annexures to the memo of appeal and found that there is no infirmity in the above finding of the learned Tribunal.
9. The accident had taken placeon 6.6.1969 and the claim petitionwas filed on 11.9.1973. The claimantrespondent No. 1 had also moved anapplication before the Tribunal underSections 5 and 14 of the LimitationAct on the ground that petition waspreferred before WorkmanCompensation Commissioner withintime and subsequently, it was foundthat the said authority had nojurisdiction and his application wasreturned. Thereafter he filed claimpetition before the Motor AccidentClaims Tribunal. The Tribunal, videits order dated 31.7.1978 allowed theabove application and condoned thedelay on the ground that claimantwas prosecuting his case beforeWorkman CompensationCommissioner under bona fide beliefon the advice given by his counsel.Having gone through the order dated31.7.1978. I find that the delay wascondoned for sufficient reason. Thusthe claim petition was not barred by time.
10. The learned counsel for the appellant contended that according to claimant respondent No. 1, the monthly income of deceased was Rs. 150, while the Tribunal assessed his monthly income at Rs. 300. He further contended that the claimant was aged about 60 years at the time of death of deceased and considering his future dependency, the amount of compensation would have not been more than Rs. 20,000 and the learned Tribunal awarded much more compensation. It is true that claimant has alleged that the deceased was getting Rs. 150 only per month as his salary, but the Tribunal considering the age and future income of the deceased concluded that an ordinary labourer, at the time of accident, would have earned Rs. 9 or 10 per day. Having considered the capability of the deceased and his age, the monthly income of the deceased as Rs. 300 per month at the rate of Rs. 10 per day could not be said excessive because if the appellant, who was allegedly employer of the deceased was paying only Rs. 150 per month to him, it would not mean that the deceased would have been earning only Rs. 150 per month in his future life, as he would have done other work also.
11. The Tribunal had applied multiplier of 15 while assessing future dependency of the claimant respondent No. 1. It further held that at the time of accident, the age of the claimant was 50 years. In these circumstances, the multiplier of 15 was appropriate one.
12. The next contention of the learned counsel for the appellant was that the entire liability to pay compensation was on the Insurance Company, as the vehicle in question was duly insured with it. The Tribunal has held that the liability of the insurance Company was only upto Rs. 20,000. Section 94 of the Motor Vehicles Act, 1939. dealt with the liability of Insurance Company incurred in respect of any one accident. Sub-section (2) of Section 94 of the Act as amended by Act 47 of1982, with effect from 1.10.1982 says that subject to the proviso to subsection (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely :
(a) where the vehicle is a goods vehicle, a limit of Rs. one lakh and fifty thousand in all, including the liabilities, if any, arising under the Workmen's Compensation Act. 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle.
13. The above amended section came into force with effect from 1.10.1982, The Tribunal passed award in this case on 21.12.1983. Meaning thereby, the above provision was in force at the lime of decision of claim petition and, therefore, the liability of Insurance had to be determined according to the provisions of law existing on the date of Judgment by the Tribunal. Moreover, learned Judge had not quoted any provision under which he assessed the liability of Insurance Company only upto Rs. 20,000 nor there was any such contract between the insurer and the insured. Therefore, the liability of Insurance Company was to pay the entire amount of compensation, which was less than Rs. 1,50,000 as the vehicle in question was admittedly a goods vehicle.
14. The learned counsel for the respondent No. 1 contended that the amount of compensation awarded by the Tribunal as well as the rate of interest is much less and, therefore, even though the respondent No. 1 has not filed any cross-objection, the respondent had right to plead that the compensation awarded by the Tribunal and the rate of interest was grossly inadequate. It was urged that the amount of compensation and the rate of interest be enhanced. He further argued that provisions of Rule 33 of Order XLI, C.P.C. are applicable to the appeal preferred under Section 110-D of Motor Vehicles Act. 1939and, therefore, by virtue of above Rule, this Court can enhance the amount of compensation and rate of interest even without filing a cross-objection or cross-appeal. In support of his contention, he placed reliance on Full Bench decision of Madhya Pradesh High Court in Prakaram Chand v. Chhutan alias Alim and others, 1991 ACJ 1051, another Full Bench decision of same High Court in Sarmaniya Bai and others v. M. P. Rajya Parivahan Nigam and others. 1990 ACJ 826, decision of Himachal Pradesh High Court in Surjit Singh v. Waryam Singh and others, 1994 ACJ 505 and Supreme Court decision in Prerna and another v. Madhya Pradesh State Road Transport Corporation and others. 1993 ACJ 254. On the other hand, the learned counsel for the appellant has seriously challenged the above contention and it was urged that if the claimant respondents failed to file an appeal or even to file a cross-objection, he has lost his right to challenge the amount of compensation determined by the Tribunal.
15. Therefore, applicability of Rule 33, Order 41, C.P.C. and power of appellate court in above situation is to be considered.
16. Rule 33 of Order XLI, C.P.C. reads as under :
'Power of Court of Appeal.--The appellate court shall have power to pass any decree and make any order which ought to have passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are, passed in one suit, be exercised in respect of all or any of the decrees, although an appeal maynot nave been filed against such decrees :
Provided that the appellate court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.'
17. The Apex Court held in the case of Rameshwar Prasad and others v. Shambehari Lal, Jagannath and another, AIR 1963 SC 1901, that Rule 33 really provides as to what an appellate court can find the appellant entitled to. It empowers the appellate court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have reference only to the nature of the decree or order in so far as it affects the right of the appellant. It further empowers the appellate court to pass or make such further or other decree or order, as the case may require. The Court is thus given wide discretion to pass such decrees or orders as the interests of justice demand. Such a power is to be exercised in exceptional cases when its non-exercise will lead to difficulties in the adjustment of rights of the various parties.
18. In the case of Nirmala Bala Ghose and another v. Balai Chand Chose, AIR 1965 SC 1874, the Apex Court held that it is true that Order XLI, Rule 33, C.P.C. is 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. If the appellate court reaches a conclusion which is inconsistent with that of the Court appealed from and in adjusting the right claimed by the appellant it is found necessary to grant relief to a person who has not appealed, the power under Order XLI, Rule 33, may properly be invoked. No unrestricted right, however, is conferred by the rule to re-open decrees which have become final merely because theappellate court docs not agree with the opinion of the Court appealed from.
19. A Division Bench of this Court in the case of The New India Assurance Company Ltd., Saharanpur v. Shri Sudesh Bhalla and others, AIR 1991 All 43, held that the above Rule (Order XLI. Rule 33, C.F.C.) empowers the appellate court to pass such decree as may be passed even though the respondents might not have filed any appeal or cross-objection against the impugned order of Motor Accident Claims Tribunal, as the appeals against the order of the Tribunal Judge lie before the High Court under Section 110-D of the Motor Vehicles Act, 1939. Rule 21 of the Accident Claims Tribunal Rules Uttar Pradesh provides the extent to which the Code of Civil Procedure may apply in cases pending before the Accident Claims Tribunal as it is a special forum. The rules do not provide the extent to which the provisions of Civil Procedure Code may be applied in the appellate court. Rule 22 of the above rules simply provides the manner in which the appeals may be filed. There was no necessity to provide for the procedure to be followed in High Court. Such appeal was obviously to be governed by the Code of Civil Procedure. Hence the provision of Order XLI of the Code may be applied as far as they are applicable and the provisions of Order XLI of the Code of Civil Procedure may be applied in the appeals arising out of the judgment of Claims of Tribunal.
20. The Madhya Pradesh High Court in Full Bench decision in the case of Prakramchand u. Chuttan alias Alim and others. 1991 ACJ 1051 overruling Kamla Bai's case, 1991 ACJ 533 (MP), of that Court held that in appeal under Section 110-D of the Motor Vehicles Act, 1939, the High Court can act without cross-objection and enhance interest to 12 per cent per annum payable from the date of application till realisation, on the compensation awarded.
21. Thus, it is clear that provisions of Rule 33 of Order XLI, C.P.C. are applicable to appeals under Section 110-D of MotorVehicles Act and the appellate court is empowered to award enhanced compensation, if it deems fit. But the amount of compensation is to he awarded according to peculiar facts and circumstances of each case and basic principle while awarding compensation is to consider the age of the deceased, his income and future expectancy. In the instant case, the case of claimant respondent No. 1 was that the deceased was getting Rs. 150 per month as his salary. The Tribunal has assessed monthly income of deceased at Rs. 300. There is no evidence on record to show that the deceased had some special qualification and in future he would be earning much more. The deceased was a labourer and would have earned only by his manual work. In this way, there was no sufficient evidence on record to show that monthly income of the deceased was more than Rs. 300 as assessed by the Tribunal. Therefore, in the instant case there is no sufficient evidence or ground for enhancing the amount of compensation assessed by the Tribunal.
22. The Tribunal has further deducted 20% of the total amount of compensation on account of lump sum payment. The learned counsel for the respondent No. 1 vehemently challenged the above deductions and relied on case of Apex Court in Hardeo Kaur and others v. Rajasthan State Road Transport Corporation and another, 1992 ACJ 300, and single Judge decision of this Court in U. P. State Road Transport Corporation v. Trilok Chand and others. 1993 ACJ 1238. In Hardeo Kaur's case (supra) the Apex Court held in paragraph 7 as below :
'We arc of the view that deduction of 1/3rd out of the assessed compensation on account of lump sum payment is not justified. The accident took place in July, 1977 and the litigation has come to an end, hopefully, today, 15 years thereafter. This Court in Motor Owners' Insurance Co. Ltd. v. J.K. Modi. 1981 ACJ 507 (SC), heldthat the delay in the final disposal of motor accident compensation cases, as in all other classes of litigation, takes a sting out of the laws of compensation and added to that the monstrous inflation and the compensation demanded years ago less than quarter of its value when it is received after such a long time. In Manjushir Radha v. B.L. Gupta, 1977 ACJ 134 (SC), this Court awarded compensation by multiplying the life expectancy without making any deductions. With the value of rupee dwindling due to high rate of inflation, there is no Justification for making deduction due to lump sum payment. We, therefore, hold that the Courts below were not justified in making lump sum deduction in this case.'
Relying on the above decision of the Apex Court, learned single Judge of this Court in the case of Trilok Chand (supra) held as below :
Therefore, submission of Mr. Sharma for reducing the compensation on account of lump sum payment is not tenable. In this case, litigation is coming to close in 1993. Accident has taken place in 1977. The claim petition was filed in 1978 and the amount of compensation is not paid in full, therefore, there is no Justification for reducing the compensation on account of lump ' sum payment.'
23. In the instant case, the accident took place in the year 1969. The petition was filed in the year 1973. The Tribunal gave award in the year 1983 and the appeal is finally being disposed of in the year 2000. Applying the principles laid down in above cases to the facts of the present case, the deduction of 20% on account of lump sum payment, therefore, cannot be held Justified and that part of award given by the Tribunal is liable to be set aside, in view of the provisions of Order XLI. Rule 33. C.P.C. as the facts and circumstances of the case required the same.
24. The Tribunal has awarded interest at the rate of 9% per annum on the amount of compensation. The Apex Court in the case of Santi Bahi and others v. Charan Singh and others, 1998 ACJ 848, awarded interest at the rate of Rs. 12% from the date of the claim petition till actual deposit. In the case of Hardeo Kaur (supra) the Apex Court held that the appellants are also entitled to claim interest at the rate of 12% per annum from the date of application before the Tribunal till the date of realisation. The same rate of interest was also awarded by the learned single Judge of this Court in the case of Trilok Chandra (supra).
25. The Madhya Pradesh High Court in Full Bench decision of Prakramchand v. Chuttan alias Alim and others, 1991 ACJ 1051, relying on Supreme Court decisions in Narcinva V. Kamal v. Alfredo Antonio Doe Martins. 1985 ACJ 397 (SC) and Jagbir Singh's case, 1987 ACJ 15 (SC) and other cases of said Court held that for proper award of interest under Section 110CC it is necessary to specify even without cross-objection, the rate of interest to be payable at 12% per annum from the date of application till realisation while awarding or enhancing compensation in appeal.
26. Considering the above cases and the facts of the present case as well as the reduction of value of rupees, I am also of the view that the rate of interest of 9% per annum awarded by the Tribunal was inadequate and appropriate interest would have been at the rate of 12% per annum from the date of presentation of petition, i.e., 11.9.1973 till the date of final payment.
27. In view of above discussions and observations. I find that the appeal filed by appellant as it relates against respondent No. 2, Insurance Company is to be partly allowed to the extent that respondent No. 2 is liable to pay entire amount of compensation. The deduction of 20% made by the Tribunal on account of lump sum payment is to be set aside and the rate of interest is to beincreased from 9% per annum to 12% per annum by exercising power under Order XLI, Rule 33, C.P.C.
28. The appeal of the appellant is partly allowed against respondent No. 2 Insurance Company and it is held that entire amount of compensation, i.e., Rs. 45,000 is to be indemnified/ paid by the insurance Company along with interest at the rate of Rs. 12% per annum from the date of petition i.e., 11.9.1973 till the date of final payment. The award of the Tribunal under appeal stands modified to the above extent.