Judgment:
ORDER
Panwar, J.
(1). This appeal is directed against the judgment and award dated 24th of March 1994 passed by the Motor Accident Claims Tribunal, Sojat, (hereinafter referred as 'the Tribunal' in short) in M.A.C.T. case No. 165/92 (102/90) whereby a sum of Rs. 2,00,000/- along with interest was awarded as compensation to respondent claimants No. 1 to 3 (hereinafter referred as 'the claimants No. 1 to 3 (hereinafter referred as 'the claimants' in short) and against Rajasthan State Road Transport Corporation (hereinafter referred as 'the Corporation' in short) and its diver respondent No. 4.)
(2). The claim petition was filed by the widow of Prema Ram who died in a road accident at the age of 32 years for herself and for minor daughter and son aged about 5 and 3 years respectively. On 13.5.1990 at 8 P.M. while deceased Prema Ram and the Cart owner Bheeka Rarn were sitting over a bull-cart which was parked off the road leading from 'Bar to Hajiwas'. One Sura Ram went to fetch water from Piao (water-hut), at that relevant time bus bearing No. RNP 603 owned by the Corporation and driven by its driver respondent No. 4 rashly and negligently hit the bull-cart resulting thereby that occupant of the cart Prema Ram and Bheekha Ram sustained severe injuries, bull-cart was dragged for a considerable distance along with the bus. This accident resulted in damage to cart and injuries to bull, who ultimately succumbed to injuries. Prema Ram was removed from the place of accident to hospilal in seriously injured condition in a taxi-jeep to Neembaj hospital. Looking to his serious condition, he was referred to hospital at Beawar and onward to Hospital at Jaipur for treatment where he was admitted in hospital at Jaipur but he could not be saved and ultimately succumbed to injuries on 18.5.1990.
(3). It was pleaded in the claim petition that the claimants incurred a sum of Rs. 40,000/- on account of treatment expenses, attendant charges etc., Rs. 1,900/- were claimed for conveyance charges incurred by them. It was also pleaded that at the relevant time age of Prema Ram was 32 years and he was a skilled carpenter and by undertaking carpentry work, he used to earn Rs. 1,500/- per months and his earning used to contributed to the claimants who were wholly dependents on the income of the deceased. In all the claimants led claim of Rs. 10,95,900/-.
(4). The Corporation (the original non appellant No. 2 and respondent No. 4 the original non applicant No. 1) filed their written statements with mere denial for want of knowledge. A similar claim petition No. 165/92 (102/90) was filed by injuredBheekha Ram. The Tribunal consolidated both the claim petitions since they arose out of one and the same accident and were between the same parties. On the pleadings of parties the Tribunal framed 4 issues and decided both the claims by a common judgment impugned. Issue No, 3 is not relevant for the decision of this appeal which relates to injured Bheeka Ram in respect of M.A.C.T. Case No. 163/92 (103/90) which has not been challenged by the Corporation.
(5). Being aggrieved by the award impugned, the Corporation has filed this appeal. I have heard learned counsel for the Appellant Mr. Arjun Singh, appearing on behalf on Mr. Sangeet Lodha and Mr. Kailash Trivedi, learned counsel for the respondent - claimants.
(6). It is contended by the counsel for the appellant that the Tribunal fell in error in deciding Issue No. 1 by which respondent No. 4 the driver of bus involved in accident was held rash and negligent. He has further contended that the amount of compensation awarded by the Tribunal is on higher side as also the Tribunal fell in error in applying the multiplier of 33. Learned counsel appearing for the claimants contended that multiplicand and dependency determined by the Tribunal is shockingly low and the Tribunal ought to have awarded just compensation looking to the age and income of deceased as also dependency of the claimants. Claimants have established the monthly income of the deceased as Rs. 1,500/- and this evidence remained unrebutted. The Tribunal ought to have taken higher dependency and, therefore, in this view of the matter, he contended that by invoking jurisdiction of Order 41 rule 33 C.P.C. Just compensation may be awarded to the clalmants.
(7). I have scanned, scrutinized and evaluated the evidence on recorded exhaustively.
(8). Claimants examined AW 1 Smt. Pista widow of deceased Prema Ram, A.W. 2 Bheekha Ram an eye-witness, and AW 3 Laxmi Chand and produced ceitified copies of First Information Report Ex.-29, post-mortem report Ex. 30, MTO report Ex. 33, site-map Ex.34 and bills and receipts of conveyance charges etc. Ex.1 to Ex. 28. No evidence was led by the Corporation in rebuttal. On appreciation of the evidence no record, the Tribunal decided Issue No. 1 in favour of the claimants and against the appellant and respondent No. 4 and held that the accident was result of rash and negligent driving of the bus by its driver Jamaluddin respondent No. 4. This issue was common in both the claim petitions filed by respondent claimants and one Bheeka Ram.
(9). In para No. 28 of the claim petition, the claimants have specifically pleaded that bull-cart was stationary off the road on its correct side and occupant Sura Ram went for fetching water from Piao (water hut) while owner of the cart and deceased were sitting over the stationary bull-cart, at that time a bus owned by the Corporation which was driven with a great speed by its driver respondent No. 4 rashly and negligently hit the bull- cart resulting thereby that bull-cart completely damaged and nccupant of the bull-cart deceased Prema Ram and Bheekha Ram were thrown away. Due to this accident they sustained severe injuries and ultimately after 5 days of accident Prema Ram succumbed to injuries in a hospital at Jaipur. In the written statement filed by the Corporation and its driver, this part of pleading has not been at all traversed and denied and thus the fact pleaded in this para stands admitted by the Corporation and its driver, AW 2 Bheekha Ram who is an injured eye-witness, has stated on oath that while they were going from Bar to Baratiya on a bull-cart Prema Rarn and Sura Ram were also occupant of that bull-cart, when they reached little ahead of Bar in front of a Piao the bullcart was taken of the road and parked away form road and Sura Ram went to fetch water while this witness and Prema Ram were sitting on the bull-cart, at that time, a bus owned by the Corporation come with dim light being driven in zigzag manner hit the bull-cart resulting in damage to cart and severe injuries to bull and occupant of cart, namely, Prema Ram and Bheeka Ram. Due to this bullsuccumbed to injuries instantatenously. From the statement of this witness it is further established that the aforesaid accident was a result of driving of the bus rashly and negligently by the respondent No. 4.
(10). Out of this accident another claim petition was filed by injured and owner of bull-cart Bheeka Ram being M.A.C.T. case No. 163/92 (103/90) and finding on Issue No. 1 is common in both these cases. The Corporation has not challenged the finding of negligence recorded in M.A.C.T. case No. 163/92 (103/90) and allowed it to become final and that finding of negligence has attained the finality, and therefore, now cannot be allowed to challenge. Viewed from any stand point, I do not find any justifiable reason to interfere with finding of Issue No. 1 recorded by the Tribunal and I hold that aforesaid accident has the result of actionable negligence of respondent No. 4.
(11). Issue No. 2 relates to determination of quantum of compensation. While deciding this issue the Tribunal determined monthly income of the deceased to be Rs. 900/- and the dependency of Rs. 600/- per month and computed loss of income to Rs. 2,37,600/- applying multiplier of 33, but awarded Rs. 2,00,000/- only.
(12). In para No. 3,4 and 6 of the claim petition, the age, occupation and monthly income of the deceased were pleaded wherein it was specifically pleaded that at the relevant time, age of the deceased was 32 years and he was a skilled carpenter and he used to earn Rs. 1,500/- per month at the rate of Rs. 50/- per day by undertaking the work of carpentery.
(13). The appellant Corporation filed written statement before the Tribunal but has not specifically denied these facts in their written statement. The Corporation merely denied these facts for want of knowledge which is no denial in the eye of law. Order 8 Rule 5, CPC provides specific denial (i) every allegation of fact in the plaint, if not denied specifically or by necessary implication or staled to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. In view of this provision, it is clear that every fact has to be specifically denied and any evasive reply cannot be said to be denial in the eye of law and it amounts to implied admission. This, the fact pleaded by the claimants in the claim petition with regard to the age, occupation and income of the deceased stands admitted by the Corporation.
(14). AW 1 Smt. Pista widow of deceased Prem Ram staled on oath before the Tribunal that at the time of accident, age of her husband was 32 years and he used to earn Rs. 50/- per day by undertaking the work of carpentery. She further deposed that all the claimants were dependent on the income of the deceased and had he not died in aforesaid accident he would have survived and earned up to the age of 70 years and his earnings would have been contributed to the claimants. This witness further deposed that soon after the accident, he was taken at various hospitals for treatment by taxies and he was given treatment for which a sum of Rs. 40,000/- has been incurred as treatment expense, attendant charges etc. In support of this, various documents were placed on record. Undisputedly the accident look place on 13.5.90 and Prema Ram succumbed to injuries during treatmenl in hospital at Jaipur on 18.5.90 i.e. after 5 days. It cannot be disputed that a reasonable amount has been incurred on the conveyance charges for taking deceased Prema Ram from the place of occurrence to hospital at Neembaj, Beawar and then Beawar lo Jaipur as also dead-body was brought to his native place of claimants. The claimants claimed for treatment expenses, attendant charges, funeral charges, boarding and lodging charges etc. This witness further stated that deceased suffered physical pain and mental agony during the period from date of accident till death and claimants under-gone mental agony. She has also stated that she has been deprived of company and consortium of her husband for even as also the applicant No. 2 and 3 minor children of the deceased have been deprived of love and affection and guidance. The claimants evidence remains unrebutted, inasmuch as, this witness was not even cross-examined on the material point relatingto the age and income of the deceased and, therefore, necessary corollary is that adversaries did not want to challenge that part of the version deposed by the witness in examination in chief and that must be taken to be truthful.
(15). From the pleading and evidence of the claimants, it is established that the deceased was 32 years of age and his monthly income was Rs. 1,500/-. When there is specific evidence with regards to the income of the deceased then there was no reason for the Tribunal to slice it down to Rs. 900/- per month. The Tribunal further deducted Rs. 300/- out of this Rs. 900/- on account of personal expenses of the deceased himself and taken dependency to be Rs. 600/- per months and by applying multiplier of 33. The amount was computed as Rs. 2,37,600/- but reduced the amount of Rs. 2,37,600/- to Rs. 2,00,000/- and awarded accordingly. However. Tribunal has completely over looked future rise in the income of the deceased. The income which he used to earn at the age of 32 years would not have been frozen for all lime to come but would have been reasonably enhanced. Hon'ble Supreme Court in General Manager Kerala State Road Transport Corp. vs. Sushamma Thomas & Others (1), held that the future prospects of advancement in life and carrier should also be sounded in terms of money to augment the multiplicand.
(16). In that case the income of deceased at the age of 39 years was Rs. 1032/-and taking into account the future prospects Hon. Supreme Court doubled the income from 1032/- P.M. to Rs. 2000/- P.M. and thereafter it was multiplied by taking annual purchase factor. Thus, in the instant case when there is evidence of the claimants that the income of deceased was Rs. 1500/- and if future prospects in taken into account then the income of the deceased would come to Rs. 3000/- per months and out of this Rs. 3000/- deducting l/3rd on account of personal living expenses of the deceased the monthly contribution to the claimants would be Rs. 2000/- per moth and if this amount is further multiplied by appropriate multiplier of 17 or 18 then amount would come much more than what has been awarded by the Tribunal. In the instant case, widow has lost company of her husband at the very young age of 28 years and minor children lost their father at the age of 5 and 3 respectively, therefore, suitable compensation for lost of consortium, love and affection is also awardable. The Tribunal has completely over looked this very material aspect by not awarding any amount under these heads. A conventional sum of Rs. 15,000/0 each for loss of consortium love and affection and for loss of estate is also awardable. It has also been established by the evidence that the claimants have incurred the expenses on conveyance, attendants, treatment expenses etc. The accident took place on 13.5.90 and deceased was taken from place of occurrence to various hospitals for treatment and ultimately he succumbed to injuries after 5 days on 18.5.90 at Jaipur in a hospital. This, it is further established that the deceased has suffered physical pain and mental agony for a period of 5 days. Tribunal has completely over looked these material aspects of the case while determining compensation.
(17). If ail these material aspects are taken in to account and appropriate computation of compensation is made in the light of aforesaid discussion, then the amount of compensation awarded by the Tribunal is too low and inadequate.
(18). It is settled law that in an appeal interference is made with the quantum of compensation only on the ground of inadequacy or the same being too excessive, as the case may be. Obviously, in this case the amount awarded by the Tribunal is shockingly low and, therefor, now the crucial question which emerges for decision is that inspite of the fact that the claimants have not filed either an appeal or cross objection for increases of Compensation, the Court suo moto should enhance the award.
'Order 41 Rule 33, POWER OF COURT OF APPEAL : The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such furtheror 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 f all or any of the decrees, although an appeal may not have been filed against such decrees);
(Provided that the Appellate Court shall not make any order under Sec. 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order).'
(19). A bare reading of the Order 41 Rule 33 CPC shows that the appellate court has the power to pass all such orders or decrees as could have been passed by the trial court. In other words, it is within the powers of the appellate court to consider whether the findings given by the trial court on one or more issues are correct and it is also within the powers of the appellate court to consider whether the procedure adopted by the trial court was in accordance with the law or it has resulted in any prejudice or has resulted in injustice.
(20). In Koksingh vs. Smt. Deokabai (2), the Hon'ble Supreme Court has observed as under:
'If an appellate Court is of the view that any decree which ought in law the have been passed was in fact not passed by the Court below it may pass of make such further or other decree of order as the justice of the case may require. Thus, under order 41 Rule 33 the High Court is competent to pass a decree for the enforcement of a charge in favour of the respondent notwithstanding the fact that respondent did not file any appeal from the decree.'
(21). In Mahant Dhangir & Another vs. Shri Madan Mohan & Others (3), has held as under:-
'The appellant court could exercise the power under rule 33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the respondents although such respondent may not have filed any appeal or objection. The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree of order as the case may require. The word 'as the case may require' used in Rule. 33 of Order 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraints that we could see may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court, it may be urged by any party to the appeal. It is true that the power of the appellate court under Rule 33 is discretionary, But it is a proper exercise of judicial discretion to determine all questions urged inorder to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities.'
(22). Thus, in view of above, I exercise the power under Order 41 rule 33 C.P.C. and compute the compensation, it has been established by the un-rebuttable evidence on record that deceased was earning Rs. 1500/- per month and if future prospects is taken into account in view of the Judgment of Hon'ble Supreme Court General Manager Kerla Slate Road Corporation vs. Sushamma Thomas (surpa) then it is just and proper to take income of the deceased to Rs. 3000/- P.M. and after deducting personal living expenses of deceased, the dependency comes to Rs. 200/- P.M. and after deducing personal living expenses of deceased, the dependency comes to Rs. 2,000/- P.M. and even taking conservative figure of Rs. 1,500/- as monthly dependency then the compensation for loss of income per annum works out to Rs. 1500 x 12 = 18.000A and looking to the age of the deceased appropriate multiplier of 17 is applied then the compensation work out to Rs. 18000/- x 17 = Rs. 3,06,000/- to this conventional amount of Rs. 15,000/- for loss of consortium to widow and Rs, 5,000A each to son and daughter of the deceased for loss of love and affection is added. It has also been established that from the lime of accident the deceased survived for 5 days and remained under treatment at various hospitals. He has suffered physical pain and mental agony for which Rs. 5,000/- is proper amounl to be awarded under this head. The claimants have placed on record the various bills of the treatment and from the evidence it has been established that they had incurred the expenses on treatment, conveyance etc. I consider a sum of Rs. 5,000/- would be just and proper to meet the expenses incurred by ihe claimants on this court. This, just and reasonable compensation, in the instant case, is Rs. 3,41,00/- rounded to Rs. 3,40,000/-, in my considered opinion this would meet the ends of justice.
(23). In view of the aforesaid discussion I find no merit in this appeal filed by the appellant, accordingly, it fails and appeal filed by the Corporation is hereby dismissed. The amount of compensation awarded by the learned Tribunal vide judgment impugned is enhanced from Rs. 2,00,000/- to Rs. 3,40,000/-. This amount shall carry the interest at the rate awarded by the Tribunal from the date of application till the date of realisation. No order as to costs. Out of Rs. 3,40,000/- Rs. 1,40,000/- shall be paid to respondent - claimant No. 1 and Rs. 1,00,000/- each to respondent -claimants No. 2 and 3. Out of the amount payable to respondent - claimant No. 1, Rs. 40,000/- shall be paid in cash and Rs. 1,00,000/- shall be deposited in a Fixed Deposit with the Nationalised Bank for a period of 5 years and the amount payable to respondent - claimants No. 2 and 3 shall be deposited in a Fixed Deposit with the Nationalised Bank at first instance for five years and will be renewed from time to time till they attained majority. Respondent - claimant No. 1 will be entitled to withdraw interest accrue on her F.D. Rs.