SATYA PRAKASH DWIVEDIversusMUNNA ALIAS CHANDRABHAN YADAV AND OTHERS

                         [2021] 9 S.C.R. 259                              259


                   SATYA PRAKASH DWIVEDI                                  A
                                  v.
   MUNNA ALIAS CHANDRABHAN YADAV AND OTHERS
                   (Civil Appeal No. 5926 of 2021)
                       SEPTEMBER 17, 2021                                 B
        [DR DHANANJAYA Y CHANDRACHUD AND
               B V NAGARATHNA, JJ.]
       Code of Civil Procedure, 1908 – Or.XLI r.33 – Power of Court
of Appeal – Appellant-claimant met with an accident and sustained
                                                                          C
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                   D
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
                                                                          E
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             F
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
                                                                          G
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.
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                                 259
260           SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A           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.
B     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
C     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
D     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
E     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
F     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
G     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

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SATYA PRAKASH DWIVEDI v. MUNNA ALIAS CHANDRABHAN                          261
                        YADAV AND OTHERS

the same and instead gave weightage to the contentions of the             A
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
                                                                          B
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 appellant-        C
claimant 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; 266-
A-D]
                                                                          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                  E
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]                 F
        13 SCR 179 – referred to.
                       Case Law Reference
[2010] 13 SCR 179               referred to              Para 15
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.5926 of             G
2021.
       From the Judgment and Order dated 28.01.2021 of the High Court
of Judicature for Allahabad in First Appeal From Order No.3182 of 2017.

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262             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A           Vipin Kumar, Deepak Goel, K. K. Srivastava, Advs. for the
      Appellant.
            S. L. Gupta, Ms. Gunjan Sharma, Asutosh Sharma, Neeraj
      Srivastava, Varinder Kumar Sharma, Advs. for the Respondents.
            The Judgment of the Court was delivered by
B
            B V NAGARATHNA, J.
            1. Leave granted.
             2. The appellant was injured in a road traffic accident. He has
      filed this appeal, being aggrieved by the impugned judgment and award
C     dated 28.01.2021 passed by the Allahabad High Court in First Appeal
      from Order No.3182 of 2017 by which the High Court dismissed the
      said appeal filed by the him and reduced the compensation amount from
      Rs.5,42,633/- to Rs.3,26,833/- on the premise that the Motor Accident
      Claims Tribunal (for the sake of convenience, the ‘Tribunal’) had
D     arbitrarily construed functional disability at the rate of 50% without any
      evidence to that effect. The High Court deemed it appropriate to assess
      20% functional disability inasmuch as it was nowhere mentioned that
      the disability was permanent in nature and was irreversible.
            3. The short question that arises in this appeal is, whether, the
      High Court, in exercise of its appellate jurisdiction could have reduced
E
      the compensation awarded by the Tribunal in the first appeal filed by the
      injured claimant seeking enhancement of compensation. In other words,
      whether the High Court was justified in exercising its power under Order
      XLI Rule 33 of the Code of Civil Procedure 1908 (for short, the ‘CPC’).
              4. Succinctly stated the facts are that the appellant -claimant while
F
      riding on his motorcycle bearing Registration No.UP93H-5532 met with
      an accident at about 6.30 p.m. on 30.10.2002 when a Truck, bearing
      Registration No.UP32Z-2570, came on the wrong side of the road and
      collided against the appellant-claimant, as a result of which he sustained
      grievous injuries. Although the appellant-claimant underwent treatment
G     for about 470 days, he was rendered disabled. He was 32 years of age
      at the time of accident and was running a canteen and said to be earning
      Rs.10,000/- per month. Appellant filed a claim petition seeking
      compensation of Rs.17 lakhs along with interest at the rate of 17% per
      annum from the date of filing of claim petition till the date of actual
      payment on account of grievous injuries sustained by him in the accident.
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SATYA PRAKASH DWIVEDI v. MUNNA ALIAS CHANDRABHAN                             263
           YADAV AND OTHERS [B V NAGARATHNA, J.]

       5. It is pertinent to mention that the Tribunal initially awarded     A
compensation of Rs.6,03,000/- along with 7% interest per annum from
the date of judgment till actual payment vide its Award dated 30.10.2006
passed in Motor Accident Claim Petition No.299 of 2002. Being aggrieved
by the said Award, the respondent – Insurance Company approached
the High Court by filing First Appeal from Order No.293 of 2007. By
                                                                             B
order dated 03.12.2015, the High Court set aside the Award dated
30.10.2006, except the finding recorded by the Tribunal that the accident
had actually taken place, allowed the said appeal and remanded the
matter to the Tribunal for decision afresh in light of the observations
made in the said order.
       6. On remand, the Tribunal passed the judgment and order dated        C
01.07.2017 awarding compensation of Rs.5,42,633/- along with interest
at the rate of 7% per annum from the date of filing the petition till the
date of actual payment by accepting the permanent disability to the extent
of 50% to that particular part of the body and taking into account his
income as Rs.54,000/- per annum. The Tribunal also applied multiplier        D
of 15 in calculating the future loss and also awarded compensation on
other heads. Not being satisfied with the said Award, the appellant-
claimant filed an appeal being First Appeal from Order No.3182 of 2017.
       7. By the impugned judgment dated 28.01.2021, the High Court
construed functional disability at the rate of 20% rather than 50% as        E
assessed by the Tribunal, assessed the age of claimant to be above 35
years and by applying the multiplier of 15, computed the total
compensation under the Head of loss of income at Rs.1,51,200/-. The
High Court also awarded compensation under the other heads i.e.
Rs.53,633/- under the Head of medical treatment; Rs.25,000/- under the
head of mental and physical pain; Rs.36,000/- under the Head of loss of      F
income; Rs.18,000/- under the head of nutritious diet; and Rs.5,000/-
under the head of conveyance. The High Court noted that the Tribunal
had not awarded any compensation under the head of attendant charges
and future treatment, it awarded compensation for a sum of Rs.18,000/
- and Rs.20,000/- respectively under those heads, even though the High       G
Court reduced the overall compensation from Rs.5,42,633/- to Rs.3,26,833
resulting in a total reduction of compensation to Rs.2,15,800/-. This was
on account of construing functional disability at the rate of 20% rather
than 50% as assessed by the Tribunal. The age of the claimant was also
assessed as being above 35 years and taken the same in the bracket of
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264            SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     36 to 40 years. Multiplier of 15 was applied rather than 17 as applied by
      the Tribunal. Hence this appeal by special leave.
            8. We have heard learned counsel appearing for the parties and
      perused the record.
             9. Sri Vipin Kumar, learned counsel appearing for the appellant-
B     claimant, contended that the High Court was not right in reducing the
      quantum of compensation awarded to the appellant, in an appeal filed by
      him seeking enhancement of the same. The main grievance of the
      appellant is that the High Court ought not to have exercised power under
      Order XLI Rule 33 of the CPC to reduce the compensation awarded by
C     the Tribunal in an appeal filed by the appellant-claimant. It was submitted
      that while on the one hand, the High Court reduced the quantum of
      compensation by reducing the percentage of functional disability from
      50% to 20%, at the same time the High Court granted compensation
      under the heads of ‘attendant charges’ and ‘future medical treatment
      charges’ in a sum of Rs.18,000/- and Rs.20,000/- respectively. It was
D     urged that the High Court should not have exercised its power under
      Order XLI Rule 33 of the CPC, particularly, in the absence of any appeal
      or cross objection filed by the respondent-Insurance Company. That the
      power under Order XLI Rule 33 of the CPC has to be exercised in
      exceptional cases when its non-exercise would lead to difficulty in the
E     adjustment of rights of various parties. Therefore, learned counsel for
      the appellant sought for setting aside the impugned judgment and award
      passed by the High Court and for restoration of the judgment and award
      of the Tribunal, in case this Court is not inclined to award a higher
      compensation.

F            10. Sri S.L. Gupta, learned counsel appearing for the respondent-
      Insurance Company supported the impugned judgment and award passed
      by the High Court and contended that there is no merit in this appeal.
             11. We have considered the contentions of the respective parties
      in light of the facts and relevant provisions of law.
G           12. Order XLI Rule 33 of the CPC reads as under:
            “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 made and to pass or make such further or
            other decree or order as the case may require, and this power
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SATYA PRAKASH DWIVEDI v. MUNNA ALIAS CHANDRABHAN                              265
            YADAV AND OTHERS [B V NAGARATHNA, J.]

      may be exercised by the Court notwithstanding that the appeal is        A
      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
                                                                              B
      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
      section 35A, in pursuance of any objection on which the Court
      from whose decree the appeal is preferred has omitted or refused
      to made such order.”                                                    C

       13. 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     D
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        E
will lead to difficulties in the adjustment of rights of the parties.
       14. The aforesaid Rule 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           F
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.
       15. In the instant case although the High Court has placed reliance    G
on the judgment of this Court in Raj Kumar vs. Ajay Kumar – (2011) 1
SCC 343, in our view 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
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266             SUPREME COURT REPORTS                            [2021] 9 S.C.R.


A     for doing so. As already stated, 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
B
      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. We find that the High Court was not right
C     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 appellant-claimant
      seeking enhancement in the compensation. The appellant-claimant could
D
      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.
             16. It is noted that Dr Pushkar Anand, Orthopaedic Surgeon at
      District Hospital Hameerpur and Member of the Medical Board, had
      opined that the appellant sustained partial stiffness in both his knees,
E     toes and wrists, as a result of the injuries sustained by him in the accident.
      There was disability of moving his feet and hence, the same was assessed
      at 70% and not disability of the whole body. The Tribunal, however,
      opined that the disability was only 50% as even the Doctor had admitted
      that the appellant’s work would not be so badly affected as had been
F     claimed by him. The High Court, however, has reduced the percentage
      of disability to 20% only by opining that there was no shortening of the
      lower limbs and that stiffness of the joints in the feet could have been
      due to injuries or disease viz., ‘Ankylosis’. But in fact, the appellant had
      sustained fractures on both his lower limbs and hands.
G            17. We are 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. At the same time, the High Court awarded an
      additional compensation under the heads of ‘attendant’ and ‘future
H     treatment’ charges.
SATYA PRAKASH DWIVEDI v. MUNNA ALIAS CHANDRABHAN                               267
             YADAV AND OTHERS [B V NAGARATHNA, J.]

        18. In view of the above, we find it just and proper to restore the    A
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. We consequently direct the
respondent-Insurance Company to pay the said compensation amount
along with interest thereon at the rate of 7% per annum from the date of
                                                                               B
filing the claim petition till the date of actual payment to the appellant-
claimant within a period of three months.
      19. Ordered accordingly.
      20. The appeal is allowed in the aforesaid terms. No costs.
      21. Pending interlocutory applications, if any, stand disposed.          C


Ankit Gyan                                                   Appeal allowed.


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