Order 41 Rule 33 CPC: Karnataka High Court Enhances Motor Accident Compensation Payable To Injured In Appeal By Insurance Company
The Karnataka High Court has said that in an appeal against compensation filed by an Insurance Company in a Motor Accident case, the appellate court can invoke Order 41 Rule 33 of CPC to enhance compensation, if injustice is caused to the victim or deceased due to compensation awarded by the Claims Tribunal.Order 41 Rule 33 of CPC deals with the power of the Court of Appeal to pass an...
The Karnataka High Court has said that in an appeal against compensation filed by an Insurance Company in a Motor Accident case, the appellate court can invoke Order 41 Rule 33 of CPC to enhance compensation, if injustice is caused to the victim or deceased due to compensation awarded by the Claims Tribunal.
Order 41 Rule 33 of CPC deals with the power of the Court of Appeal to pass an appropriate order in a case regardless of the fact that the appeal is only with respect to a part of the decree or that the appeal is filed only by some of the parties. In other words, the Appellate Court can pass an order as it deems it fit regardless of the scope of the appeal.
Thus, in exercise of power prescribed by the above provision, a single judge bench of Justice H P Sandesh enhanced motor accident compensation to Rs.44,92,140/- as against Rs.11,39,340/-, in an appeal preferred by National Insurance Co., against the very grant of compensation. It observed,
"Coming to the aspect of invoking Order 41, Rule 33 of C.P.C. to award just and reasonable compensation, it is settled law that in an appeal filed by the Insurance Company, the Court can invoke Order 41, Rule 33 of C.P.C., if injustice is caused to the victim or deceased while awarding compensation."
It added, "The Tribunal lost sight of awarding compensation towards loss of amenities and only an amount of Rs.10,000 is awarded under the said head. When the claimant had suffered head injury and suffered permanent disability at 65%, it is appropriate to enhance the same to Rs.1,00,000/- as against Rs.10,000/- awarded by the Tribunal."
Claimant Alwin Lobo sustained head injury in an accident with an auto-rickshaw. Even though the Doctor assessed his disability at 65%, the tribunal considered it only at 25%.
The bench noted that without assigning any reason, the Tribunal has reduced the disability to 25%. It said,
"In a case of head injury, the disability cannot be converted as like an injury to limb and the Court has to take the actual disability. When the permanent disability is assessed at 65% by P.W.2 and considering the nature of injuries, the Tribunal lost sight of the nature of injuries and also the evidence on record, that too, when the expert has given the evidence."
It added, "It is appropriate to take the disability at 65% and when the Tribunal has passed a perverse order in accepting the disability, such perversity amounts to injustice to the injured. Hence, it is a fit case to exercise the powers under Order 41, Rule 33 of C.P.C. to enhance the compensation."
The bench also rejected the argument made by the insurance company that the autorickshaw driver and the claimant had colluded among themselves and manipulated the police records for making the claim. It said,
"In order to substantiate the contention of the Insurance Company, except the oral evidence of R.Ws.1 to 3 and the documents Exs.P11 and C1, nothing is placed on record and unless the cogent evidence is placed before the Court that it is a case of fraud and implication of vehicle, the same cannot be accepted."
It added, "No doubt, it is settled principle of law that fraud and justice should not dwell together, in order to come to a conclusion that it was a case of fraud and implication of the vehicle, no ample material is placed before the Court. When such being the case, I do not find any ground to reverse the findings of the Tribunal with regard to the involvement of the vehicle and causing an accident."
Case Title: NATIONAL INSURANCE CO LTD v. ALWIN LOBO
Case No: M.F.A.NO.8449/2015
Citation: 2022 LiveLaw (Kar) 434
Date of Order: 19TH DAY OF OCTOBER, 2022
Appearance: ANOOP, ADVOCATE FOR B.C. SEETHARAMA RAO, ADVOCATE for Appellant; DHANANJAY KUMAR, ADVOCATE FOR R1.
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