Dismissed

A.P.S.R.T.C., and Another v. Mallik Rekhi and 3 Others

Andhra Pradesh HC13 Feb 2024MACMA/633/2016

Case brief

AI extract

What is this about?

The High Court of Andhra Pradesh dismissed an appeal filed by APSRTC against a Motor Accident Claims Tribunal award. Upholding the Tribunal's award of Rs. 3,56,000/- as reasonable, the Court ruled it had no power to enhance compensation under Order 41 Rule 33 CPC when the appeal was filed solely by the insurer without cross objections from claimants, citing Rajana Prakash.

What did the court decide?

The Motor Accident Civil Miscellaneous Appeal was dismissed without costs; the Tribunal's award of Rs. 3,56,000/- dated 18.03.2015 is confirmed.

A.P.S.R.T.C., and Another Vs Mallik Rekhi and 3… — Motor Accident Claims | Andhra Pradesh HC (2024)

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HIGH COURT OF ANDHRA PRADESH AT AMARAV,
wt> 'fdwljMtiQ
WEDNESDAY ,THE FOURTEENTH DAY OF FEBRUARY,^^^?^^
TWO THOUSAND AND TWENTY FOUR ^•rw

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAV,

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PRESENT

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THE HONOURABLE SRI JUSTICE A.V.RAVINDRA BABU

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 633 OF 2016

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Between:

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Gajuwaka

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^ virakhap^tnam^^^^'^^*^^ Depot, Rep.by its Depot Manager, 2. APSRTC, Rep. by its Vice Chairman cum Managing Director, Musheerabad Hyderabad.

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...Appellants/Respondents 2 & 3

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AND

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Rekhi, W/o. Late Nijam Malik @ Nijam, Aged about 38 years

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g^^^J^^^^^odarpur Village, Kotulpur Mandal, Bankura^{District,West’Bengal}

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Amir Malik @ Amir Ali Malik, W/o. Late Nijam Malik @ Nijam g^^^^^^^f^odarpur Village, Kotulpur Mandal, Bankura^{District,WestBengal}

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RoJi!f @ Mallik @ Morjia, D/o. Late Nijam Malik @ Nijam Radhadamodarpur Village, Kotulpur Mandal, Bankura District, W^t Bengal

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...Respondents/Petitioners

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’ n^°' Mahalakshmi @ Musalayya, Aged about 49 years.

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D.No.pi C 1/59 Desapatrunipalem Village, Parawada Mandal Visakhapatnam District.

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R3 is minor rep.by its 1®'Respondent his mother

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^ ^otor Vehicles Act, aggrieved by the Cases /POA? Art^nfrrf AHH®? Judge for Trial of cases^underSC&ST paS‘in°Ml)op"NoT7t6““ Visakhapatnam This appeal coming on for hearing and upon perusing the grounds of appeal, the judgment and Decree of the Lower Court and material papers in the ;^ arguments of Sri Vinod Kumar Tarlada, Standing Counsel for APSRTC, Advocate for the Appellant and of Sri Challa Ajay Kumar, Advocate for Respondents.

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This Court doth Order and decree as follows:

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That MAGMA be and is hereby dismissed. 2. That the award, dated 18.03.2015 in M.V.OP.No.1716 of 2012, passed by the Motor Accident Claims Tribunal-cum-Additional District & Sessions Judge, Visakhapatnam be and is hereby confirmed.

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That there be no order as to costs in this appeal.

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SO/- N NAGAMMA ASSISTANT REGISTRAR

//TRUE COPY//

SECTION OFFICER

To,

The Special Judge for Trial of cases under SC & ST Cases (POA) ActCum-Additional District and Sessions Judge, Visakhapatnam, Visakhapatnam district

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Three CD copies

vna

HIGH COURT

DATED: 14/02/2024

DECREE

MACMA.No.633 of 2016

C'A
r-
X Q If mar 20?^
9.^ . Current Section ,f ^

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DISMISSING THE MACMA WITHOUT COSTS

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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WEDNESDAY ,THE FOURTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A.V.RAVINDRA BABU

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 633 OF 2016

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Appeal filed under Section 173 of the Motor Vehicles Act, aggrieved by the Judgment and Decree passed by Special Judge for Trial of cases under SC & ST Cases (POA) Act-Cum-Additional District and Sessions Judge, Visakhapatnam passed in MVOP No. 1716/2012 dated 18-3-2015.

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Between:

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A.P.S.R.T.C., Gajuwaka Depot, Rep.by its Depot Manager, Gaiuwaka Visakhapatnam.

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APSRTC, Rep. by its Vice Chairman cum Managing Director,^Musheerabad Hyderabad.

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...Appellants/Respondents 2 & 3

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AND

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Mallik Rekhi, W/o. Late Nijam Malik @ Nijam, Aged about 38 years, Radhadamodarpur Village, Kotulpur Mandal, Bankura District, West Bengal State.

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Amir Malik @ Amir Ali Malik, W/o. Late Nijam Malik @ Nijam Radhadamodarpur Village, Kotulpur Mandal, Bankura District, West Bengal State.

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Morjia Khateen @ Morija Mallik @ Morjia, D/o. Late Nijam Malik @ Nijam Radhadamodarpur Village, Kotulpur Mandal, Bankura District, West Bengal State.

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...Respondents/Petitioners

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Pappu Appa Rao, S/o. Mahalakshmi @ Musalayya, Aged about 49 years D.No.331 C 1/59, Desapatrunipalem Village, Parawada Mandal, Visakhapatnam District.

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R3 is minor rep.by its 1®‘Respondent his mother

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Counsel for the Appellant: Sri Vinod Kumar Tarlada (Standing Counsel for APSRTC)

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Counsel for the Respondents: Sri Challa Ajay Kumar

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The Court made the following: JUDGMENT

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IN THE HIGH COURT OF ANDHRA [ 3364 PRADESH :: AMARAVATI ] (Special Original Jurisdiction)

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WEDNESDAY ,THE FOURTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE A V RAVINDRA BABU

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MOTOR ACCIDENT CIVIL MISCELLANEOUS APPEAL NO: 633 OF 2016

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Between;

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A.P.S.R.T.C., & ANOTHER, Rep.by its Depot Manager, Gajuwaka, Visakhapatnam.

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APSRTC, Rep. by its Vice Chairman Cum Managing Director, Musheerabad, Hyderabad.

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...APPELLANT(S)

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AND

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MALLIK REKHI 3 OTHERS, W/o. Late Nijam Malik @ Nijam Radhadamodarpur Village, Kotulpur Mandal, Bankura District, West Bengal State.

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Amir Malik Amir Aii Malik, W/o. Late Nijam Malik @ Nijam Radhadamodarpur Village, Kotulpur Mandal, Bankura District, West Bengal State.

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Morjia Khateen Morija Mallik Mon’ia, D/o. Late Nijam^Malik @ Nijam Radhadamodarpur Viilage, Kotulpur Mandal, Bankura District, West Bengal State.

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Pappu Appa Rao, S/o. Mahalakshmi @ Musalayya, DesapatrunipalemVillage, Parawada Mandal, Visakhapatnam District. R3 is minor rep. by its 1st Respondent has mother

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...RESPONDENTS

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Appeal filed under Order 41 of CPC praying the High court may be pieased to aliow the appeal by setting aside the Judgment and Decree passed by Special Judge for Trial of

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cases under SC & SR Cases (POA) Act-Cum-Additional District and Sessions Judge, Visakhapatnam passed in MVOP No. 1716/2012 dated 18-3-2015 and pass

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Counsel for the Appellant(s):

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SRI VINOD KUMAR TARLADA (SC FOR APSRTC)

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Counsel for the Respondents: 5250/CHALLA AJAY KUMAR

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Cases referred:

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2017(16) see 680 (2022) 10 see 512 (2009) 6 Supreme eourt eases 121 (2014) 4 Supreme eourt eases 511 2006(2) AeJ 414 2011(8) SeALE 240 LAWS (APH)-2014-9-40 2019 see Online Bom 2 (2015) 4 see 237 MAeiMA No.945 of 2013 MAe. APP.534/2017 & eM APPL.23164/2017

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The Court made the following:

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JUDGMENT:-

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Challenge in this M.A.C.M.A. is to the award, dated 18.03.2015 in M.V.O.P.No.1716 of 2012, on the file of Additional District & Sessions Judge-Motor Accident Claims Tribunal, Visakhapatnam (for short "Tribunal"), where under the Tribunal as against the original claim of the claimants to award compensation of Rs.6,00,000/- on account of the death of Nijam Mallik (hereinafter will be referred to as "deceased") in a motor vehicle accident, which was occurred on 29.08.2012, granted a sum of Rs.3,56,000/- towards compensation with subsequent

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interest at 6% per annum from the date of petition till the date of realization and directed the respondents to deposit^thesame within two months from the date of award. The Tribunal apportioned the compensation as that of Rs. 1,56,000/-ⁱⁿ favour of first claimant, Rs. 1,00,000/- in favour of second claimant and Rs. 1,00,000/- in favour of third claimant.

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The parties to this MACMA will hereinafter be referred to as described before the Tribunal for the sake of convenience.

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The claimants, who are three in number, filed M.V.O.P.No.1716 of 2012 under Section 166 of the Motor Vehicles Act, claiming compensation of Rs.6,00,000/- on account of the death of deceased in a motor vehicle accident. 4) The case of the claimants, in brief, before the Tribunal is that the first claimant is the wife and the claimants 2 and 3 are the children of the deceased. Parents of the deceased predeceased to him. On 29.08.2012 morning the deceased started at Ramayogi Agraharam village on his motorcycle bearing No.A.P.31-S-8452 to go to Koduru Village on his personal work. He was proceeding on the motorcycle^towards Koduru village through Sabbavaram village. At about 9-30 a.m., when the deceased reached near RTC complex main road, Sabbavaram, one APSRTC Bus bearing No.A.P.lO-Z-8745

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("offending vehicle for short), came from Bus stop, Sabbavaram. While proceeding towards Gajuwaka through^main road, Sabbavaram village, the driver of the said bus drove the same with high speed in rash and negligent manner and^dashed against the motorcycle of the deceased from the back side. As a result, the deceased fell down on the main road and received grievous head injury. He was shifted to Sabbavaram Government Hospital for the first time and after first aid, he was shifted to K.G.H, Visakhapatnam for better treatment. The deceased died while taking treatment in K.G.H, Visakhapatnam on 03.09.2012 at about 7-30 a.m. Police registered a case in Crime No.110 of 2012 under Section 337 of the Indian Penal Code ("IPC" for short). Later after death of the deceased, police altered the section of law into Section 304-A of IPC from 337 of IPC. The accident occurred was due to rash and negligent driving of the driver of the offending vehicle. The deceased was working as coolie. He was earning Rs.9,000/- per month. He was only earning member in the family. The claimants are deprived of the income on account of the death of deceased. The first respondent is the driver of the offending^vehicleand respondent Nos.2 and 3 are owners of the offending vehicle, as such, they are jointly and severally liable to pay the compensation. Hence, the claim.

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Before the Tribunal the first respondent/driver remained exparte.

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The third respondent got filed a counter and second respondent got filed a memo adopting the counter of^thesecond respondent. The contention of the respondent Nos.2 and 3 according to their counter, in brief, is that the claimants^haveto prove the manner of accident and alleged negligence of first respondent/driver and injuries received by the deceased^andhis death and also the occupation and earnings of the deceased.^In fact the Bus was plying between Sabbavaram and Narsipatnam in the second trip. The Bus started at Tuni at about^8-30a.m. and reached Manyam Vuratia junction at 9-15 a.m. Then^the driver observed a Lorry coming in the opposite direction^andhe gave side to the lorry and slowed down the bus. As the bus^was nearby there one motorcyclist trying to overtake the^busathigh speed, observed the vehicle coming on the opposite^sideand tried to avoid that lorry and dashed the bus on its^{rightside.The} driver stopped the bus and he along with Conductor and passengers got down and observed three people travelled^onthe motorcycle and because of the speed they hit the bus and received injuries. So, there was no negligence on the^partofthe driver, as such, the respondents are not liable to pay compensation.

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On the basis of the above pleadings, the Tribunal settled the following issues:

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(1) Whether the deceased Nijam Mallik, S/o Ummar Mallik died in the motor vehicle accident occurred on 29.08.2012 due to rash and negligent driving of APSRTC Bus bearing No.A.P.lO-Z-8745 by its driver?

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(2) What was the age and income of the deceased by^the time of accident?

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(3) Whether the petitioners are entitled to claim compensation, if so, to what amount and from which of the respondents?

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(4) To what relief?

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On behalf of the claimants, P.W.l and P.W.2 were examined and Ex.A.l to Ex.A.4 were marked during the^course of trial. On behalf of the respondents side R.W.l was examined without any documentary evidence.

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The Tribunal on considering the oral as well as documentary evidence found that the accident occurred was due to rash and negligence on the part of first respondent in driving the offending vehicle and further awarded compensation of Rs.3,56,000/- by directing the respondent Nos.l to 3 jointly and severally liable to pay the compensation as awarded. Felt

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aggrieved of the aforesaid award, the unsuccessful respondent Nos.2 and 3 i.e., APSRTC filed the present MACMA.

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Now, in the light of the contentions advanced, in deciding this MACMA, the points that arise for consideration are as follows: (1) Whether the claimants before the Tribunal proved^that the accident occurred was due to rash and negligent^actof the first respondent in driving the offending vehicle^andon account of the same, the deceased died after receipt of injuries?

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(2) Whether the award, dated 18.03.2015, on the file^of Additional District & Sessions Judge-cum-Motor Accidents Claims Tribunal, Visakhapatnam, awarding compensation of Rs.3,56,000/in favour of the claimants is sustainable under law and facts and whether there are any grounds^to interfere with the same?

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Point Nos.l and 2:

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P.W.l before the Tribunal was no other than the^first claimant i.e., the wife of the deceased and she got^{filedherchief} examination affidavit before the Tribunal narrating^theeventsin tune with the pleadings and through her examination,^Ex.A.lto Ex.A.4 were marked. Ex.A.l was attested copy of FIR in Crime No.110 of 2012 of Sabbavaram Police Station. Ex.A.2 was attested copy of inquest report. Ex.A.3 was attested copy of P.M. report. Ex.A.4 was attested copy of charge sheet in the

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above crime number. The claimants examined P.W.2, who^was said to be the direct witness to the occurrence of the accident and his chief examination affidavit is to the effect that on 29.08.2012 while he stood at Sabbavaram RTC complex morning at 9-30 a.m., he found the deceased proceeding^onhis motorcycle bearing No.AP-31-S-8452 through RTC complex main road of Sabbavaram village. Then APSRTC Bus bearing l\lo.AP-10-Z-8745 came from RTC complex, Sabbavaram village. At that time, the driver of APSRTC bus drove the bus in high speed and in rash and negligent manner and dashed the motorcycle of the deceased from the back side, as such,^he fell down on the road and received grievous head injury. He was shifted to Sabbavaram Government Hospital and from there^to KGH, Visakhapatnam. He is an eye witness to the above said occurrence. The accident occurred was due to rash and negligent driving of the driver of offending vehicle. 12) The respondent Nos.2 and 3 examined the first respondent who was no other than the driver of the offending vehicle as R.W.l and his chief examination affidavit is in tune with the contents of the counter filed by the third respondent.

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Sri Y. Phanibabu, learned counsel, representing^the learned counsel for the appellants, would canvass a contention that according to the defence of the contesting respondents

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before the Tribunal, there was contributory negligence^on the part of the deceased to the accident. He would submit that the accident was occurred purely on account of the rash and negligent act of the deceased while riding on two wheeler with three persons. He would submit that even otherwise, the amount of compensation that was granted by the Tribunal is excessive. The Tribunal without any basis considered the income of the deceased as that of Rs.lOO/- per day. With the above said submissions, the learned counsel would contend that the claimants are not entitled to compensation and ultimately if they are entitled for compensation, the compensation awarded by the Tribunal is excessive, as such, it need to be reduced according to law. 14) Sri Challa Ajay Kumar, learned counsel for the claimants, would contend that the evidence on record would prove that the accident was occurred due to rash and negligent act of the driver of the offending vehicle in driving^theAPSRTC Bus. P.W.2 was a witness to the occurrence who supported^the case of the claimants. Police duly registered FIR and after due investigation filed the charge sheet against first respondent alleging rash and negligent act. The Tribunal rightly^considered the evidence on record and made appropriatejindings^against the respondent Nos.l to 3 insofar as rash and negligent act

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alleged against first respondent. The learned counsel would canvass the contention that the Tribunal considered the income of the deceased only Rs.lOO/- which was on lesser side in the light of the evidence adduced and that it is to be enhanced. He would submit further that the claimants are entitled compensation under the conventional heads to a tune of Rs.70,000/in view of the judgment of the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and others^. He would further submit that the claimants are entitled to enhancement of compensation in view of the judgments of the Hon'ble Supreme Court in (1) Janabai WD/O of Dinkarrao Ghorpade and others Vs. ICICI Lambord Insurance Company Limited^, (2) Sarla Verma and others vs. Delhi Transport Corporation^, (3) Meera Devi and another vs. Himachal Pradesh Road Transport and Corporation and others'* and (4) The National Insurance Company Limited vs. E. Suseelamma (MACMA No.945 of 2013 on the file of this Court. With the above submissions,^the learned counsel for the claimants would seek to dismiss the appeal, but with modification of compensation i.e.,^toenhance the compensation.

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' 2017(16) see 680 ^ (2022) 10 see 512

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^ (2009) 6 Supreme eourt eases 121 (2014)4 Supreme eourt eases 511

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In the light of the above rival contentions advanced, firstly, this Court would like to deal with as to whether the evidence on record would prove the rash and negligent act against the first respondent. Admittedly, P.W.l who adverted to the case of the claimants was the wife of the deceased and she was not a witness to the occurrence as admitted by her. However, the fact remained is that the claimants examined P.W.2, who deposed that he witnessed the occurrence. According to P.W.2, APSRTC Bus came with high speed^inarash and negligent manner and hit the deceased, who was moving on the motorbike, as such, he fell down and received serious head injury and later he died.

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Turning to the cross examination part of P.W.2,^he deposed that at the time of accident, he was at Sabbavaram RTC bus stand. The stand is at a distance of 20 or 25 feet roughly from the accident spot. He did not lodge any police report after the accident. He denied that he did not witness the occurrence.

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It is to be noted that it was not quite difficult^for P.W.2 witness the accident at a distance of 22 or 25 feet roughly from the accident spot. As evident from Ex.A.l to Ex.A.4 though originally the police registered FIR under Section 337 of IPC and later on intimation of the death of deceased, altered^the same

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into Section 304-A of IPC. Ex.A.2, the inquest report, reveals that the inquest panchayatdars opined that the death of the deceased was due to rash and negligent driving of the^driverof the offending vehicle i.e., the first respondent. There was no dispute that the first respondent was the driver of the offending vehicle. Outcome of investigation in view of Ex.A.4 is that the police laid the charge sheet alleging rash and negligent act against the first respondent.

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It is to be noted that for obvious reasons, the^first respondent did not choose to contest the claim of the claimants with regard to the rash and negligent act alleged against him, but he came as a witness on behalf of the respondent^Nos.2and 3 and in his chief examination affidavit, he adverted to the counter of the contesting respondents. In cross examination^he admitted that the police case is pending against him.^Hedenied that the accident occurred was due to his negligence.

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If really there was any contributory negligence on the part of the deceased, the first respondent would not have kept quiet, especially, when the deceased hit the APSRTC Busⁱⁿ a rash and negligent manner. There was no report from^R.W.l even alleging in damage to the bus. In the considered^viewof this Court, the evidence on record would prove that the accident occurred was due to rash and negligent act of the driver of the

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offending vehicle i.e., first respondent. In a claim under Motor Vehicles Act seeking compensation on account of death of a person, rash and negligent act against the driver of the vehicle has to be proved, basing on the preponderance of the probabilities but not basing on the test of beyond reasonable doubt. Hence, in the considered view of this Court,^theevidence on record categorically establishes the fact that the accident was occurred on account of rash and negligent act of the first respondent in driving the offending vehicle. There is no dispute that the respondent Nos.2 and 3 being the owners of^thevehicle have to take vicarious liability for the act of the first respondent, as such, the respondent Nos.l to 3 are liable to pay compensation to the claimants, who are the legal heirs^ofthe deceased which is not in dispute. 20) Now, turning to the quantum of compensation, the claim of the claimants was that the deceased was working^as a collie and was earning Rs.9,000/per month. During cross examination, P.W.l deposed that she has no idea about the earnings of the deceased. She denied that their claim is excessive. It is a case where P.W.l who was the wife of deceased pleaded ignorance about the so-called earnings^ofthe deceased, but the fact remained is that the occupation of the deceased as a coolie was not in dispute. The deceased had his

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wife and two children. Hence, there was no occasion for the deceased to remain incomeless. Thus, he was the person^who taken care of his family. When P.W.l pleaded ignorance^about the earnings of the deceased and looking into the period of accident i.e., in the year 2012, the Tribunal considered the income of the deceased basing on the notional theory by relying upon a decision in P. Yasodamma & others vs. T.

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Butchireddy & another^.

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Considering the age of the deceased as that of 45 years at the time of accident, the Tribunal reasonably considered the earnings of the deceased as that of Rs.3,000/per month basing on notional theory. This Court has no reason to differ with the findings of the Tribunal. Though^P.W.l in chief examination put forth their case that the deceased was earning Rs.9,000/per month but answers spoken by her in cross examination means that she was totally ignorant the^incomeof the deceased. Hence, it is unsafe to take into consideration the averments in the affidavit that the deceased was earning Rs.9,000/- per month. 22) Under the circumstances, the reasonable exercise made by the Tribunal fixing income of the deceased on the notional basis as that of Rs.3,000/- per month cannot be found

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2006(2) AO 414

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fault. There is no dispute that for age group of 45 years the proper multiplier in view of the judgment in Sarla Verma's case (3 supra) is '14'. There is no dispute further that as the claimants are three in number, the annual earnings of the deceased can be arrived at by deducting 1/3 rd of the income towards personal expenses. By making this exercise^inviewof the judgment in Sarla Verma's case (3 supra), the Tribunal arrived at the total loss of earnings to a tune of Rs.3,36,000/-. The Tribunal awarded a sum of Rs.5,000/towards funeral expenses, Rs.5,000/- towards loss of estate, Rs.5,000/-^towards loss of love and affection and a sum of Rs.5,000/-^towardsloss of consortium in favour of the first petitioner. Thus,^theTribunal arrived at the compensation of Rs.3,56,000/-.

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It is the contention of the learned counsel for the claimants that though the claimants did not file any cross objections or cross appeal, this Court can consider and enhance the compensation in favour of the claimants by considering^the income of the deceased as pleaded by the claimants. As this Court already pointed out that the factual analyzation of the evidence on record, the aforesaid contention is not tenable. Another submission of the learned counsel for the claimants is that in view of the latest decision in Pranay Sethi's case (1 supra), the compensation under the conventional heads

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Rs.40,000/- + Rs.15,000/- + Rs.15,000/- can be considered so as to enhance the compensation.

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In view of the contentions raised as above, now^this Court has to decide as to whether the contention of the claimants that they are entitled for enhancement of compensation without there being any cross objections^orcross appeal is tenable.

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Firstly, this Court would like to make it clear that admittedly, in view of the judgment in Pranay Sethi's case (1 supra), the compensation under the conventional heads for a sum of Rs.70,000/is eligible, if they claimed it in accordance with law by filing any cross objections in the appeal.

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The learned counsel for the claimants placed reliance on four decisions in this regard.

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Turning to Janabai WD/0 Dinkarrao Ghorpade's case (2 supra), it is a case where when the matter was before the Hon'ble Supreme Court by the claimants against the orders of the concerned High Court, the Hon'ble Supreme Court considered Pranay Sethi's case (1 supra) and held that appellants are entitled to enhance the compensation particularly in respect of future prospects and other heads of damages in terms of Pranay Sethi's case (1 supra) and that the appellants had not filed any appeal seeking enhancement of compensation

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awarded by the Tribunal before the High Court. Therefore, in exercise of the powers conferred under Article 142 of the Constitution of India, amount of compensation was recomputed by the Supreme Court in tune with the Pranay Sethi's^case(1 supra).

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Coming to the present case on hand, it is to be noted that even the aforesaid decision, the Hon'ble Supreme Court took note of the fact that the appellants did^notfileany appeal whatsoever before the concerned High Court so as to enhance the compensation. However, the Hon'ble Supreme Court exercised the powers conferred by virtue of Article^142of the Constitution of India. It is to be noted that powers^under Article 142 of the Constitution of India cannot be exercised by the High Court. Those powers are meant to be exercised^bythe Hon'ble Supreme Court alone. Thus, the claimants cannot canvass the contention for exercise of powers under^Article142 of the Constitution of India by the High Court.

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In the considered view of this Court, this Court cannot exercise the powers conferred under Article¹⁴² of the Constitution of India which are to be exercised by^the Hon'ble Supreme Court. 30) Turing to Sarla Verma's case (3 supra), it is no doubt true that the very object of the claim before^the Motor

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Vehicles Accident Tribunal is to award just compensation. The Hon'ble Supreme Court stressed the need of just compensation in the aforesaid decision and customized and standardized certain aspects regarding awarding of compensation, The aforesaid decision is not at all relating to the powers of the High Courts to enhance the compensation in an appeal filed by the Insurance Company without there being any cross objections^or cross appeal by the claimants. In the considered view of this Court, the decision in Sarla Verma's Case (3 supra) is of no use to the contentions of the claimants to seek enhancement of compensation awarded by the Tribunal without any cross objections or cross appeal. 31) Turning to the decision in Meera Devi's case (4 supra), absolutely, it has nothing to do with the powers of the High Courts to enhance the compensation in the absence of cross appeal.

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Turning to the decision of the Division Bench of this High Court in M.A.C.M.A.No.945 of 2013 which was decided on 04.08.2023, filed by the National Insurance Company Limited, this Court enhanced the compensation in favour of the claimants without there being any cross objections while dismissing the appeal filed. Now the reliance is sought to be placed on the aforesaid decision.

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This Court encountered with the situation that^there is a request from the claimants that the compensation is liable to be enhanced in their favour, though there is no cross objections or cross appeal. This Court examined the legal position in this regard.

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The Hon'ble Supreme Court in Rajana Prakash and others vs. Divisional Manager and others^ on 29.07.2011ⁱⁿ a Motor Vehicles Accident Claims Appeal filed on behalf^ofthe claimants interpreted Order 41 Rule 33 of the Code of Civil Procedure. It is pertinent to refer here the factual^matrix in the aforesaid case. The claimants who are the widow and two sons and mother of the deceased who died in a motor vehicles accident case laid a claim before the Tribunal to award compensation. The monthly salary of the deceased was Rs.23,134/-. The Tribunal awarded compensation of Rs.24,12,936/- with interest at 9% per annum. When an appeal was filed by the insurer, the High Court upheld the findings of the Tribunal with regard to the income and calculation of compensation, but held that the Tribunal ought to have deducted 30% of the annual income towards income tax. Accordingly, the High Court deducted 30% and reduced the compensation of Rs. 16,89,055/-. The claimants canvassed the

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® 2011(8) SCALE 240

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matter before the Hon'ble Supreme Court by way of a Special Leave. The Hon'ble Supreme Court noticed the fact that before the High Court the insurance company contended that the annual income of the deceased was in taxable range, as such, the Tribunal ought to have deducted 30% of the income towards the income tax. The Hon'ble Supreme Court further found that the claimants contended before the High Court that^theTribunal did not consider the future prospects of 30% and that if the income had been increased by 30% by taking note of^thefuture prospects and if 30% had been deducted towards income tax, that would virtually leave the income assessed by the^Tribunal undisturbed. As against the aforesaid contentions, the High Court held that 30% of the annual income should be deducted towards income tax, but the High Court did not took cognizance of the contentions of the claimants that 30% should have been added to the income towards future prospects on the ground that the claimants did not challenge the award of the Tribunal on that ground. Therefore, the High Court ignored the^errorinthe award of the Tribunal pointed out by the claimants, but only took note of the error pointed out by the insurer and^reduced the compensation by 30%. The Hon'ble Supreme Court at para No.6 dealing with the aforesaid contentions heid as follows:

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We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimantswill not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections.

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The substance of the findings of the Hon'ble Supreme Court at para No.6 is that in an appeal filed by the owner/insurer seeking to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out^other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. In such circumstances, the fact that the claimants did not independently challenge the award will not come in their

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way of a defending the compensation awarded. Thus, the substance of the aforesaid findings is also such that in an appeal filed by the insurance company seeking to reduce the compensation by pointing out any defect in the award, the claimants can seek to justify the award by pointing^outother omissions, if any, in the award to contend that there is no need to reduce the compensation.

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It is to be noted further that the Hon'ble Supreme Court at para Nos.7 and 8 interpreted Order 41 Rule³³ of the Code of Civil Procedure as follows;

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This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate^courtto pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted^tothe appellate court to enable it to do complete justice^between the parties. Order 41 Rule 33 of the Code can however^be pressed into service to make the award more effective or maintain the award on other grounds or to make the^other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court^can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the

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claimants had not challenged the non-grant of relief against the insurer. Be that as it may.

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Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal,^the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.

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It is to be noted that though the powers under^Order 41 Rule 33 of the CPC to be exercised by the Appellate^Courts are wide enough so as to do justice to the parties, but such powers cannot be invoked to get a larger on higher^reliefs.The Hon'ble Supreme Court made an illustration as to under^what circumstances such powers can be exercised. The Hon'ble Supreme Court observed that where the claim is against the owner and the insurer of the vehicle and the Tribunal makes an award only against the owner on an appeal filed by the owner

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challenging the quantum, the Appellate Courts can make the insurer jointly and severally liable to pay the compensation, along with the owner, though claimants had not challenged^the non-grant of relief against the insurer. Thus, the ultimate principle of law evolved by the Hon'ble Supreme Court is very clear that in a motor accidents appeal if the compensation determined by the High Court is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by^theclaimants for enhancement, but allow any appeal by owner/ insurer^for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation. This is the law laid down by the Hon'ble Supreme Court way^backinthe year 2011 in Ranjana Prakash's case (6 supra) directly dealing with MACMAs before the High Courts.

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Foliowing the law laid down by the Hon'ble Supreme Court as above, the composite High Court of Andhra^Pradesh in

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New India Assurance Co. Ltd VS. Isaq^, dealing with the contention of the claimants in a motor vehicles accident claim appeal filed by the insurance company declined to enhance^the compensation. The composite High Court of Andhra Pradesh in the aforesaid decision followed the law laid down in Rajana Prakash's case (6 supra).

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The Bombay High Court in New India Assurance Company Ltd., Aurangabad through its Divisional Manager

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vs. Sunita and others^ also dealing with a situation as to whether in an insurance company appeal filed under Motor Vehicles Act before the High Court whether the High^Courthas power to enhance the compensation without there being any cross appeal or cross objections, declined to enhance the compensation by following the law laid down in Rajana^Prakash's case (6 supra). Apart from this, the High Court of Bombay when the decision in Jitendra Khimshankar Trivedi v. Kasam Daud Kumbhar^ was cited held that the Hon'ble Supreme Court exercised such power under Section 142 of the Constitution^of India and further held that the Hon'ble Apex Court exercised jurisdiction under Article 142 of the Constitution^ofIndiawhich the High Court does not possess. To this extent, it is very clear

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^ LAWS (APH)-2014-9-40

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® 2019 see Online Bom 2

® (2015) 4 see 237

that the composite High Court of Andhra Pradesh and Bombay High Court followed the law laid down in Rajana Prakash's^case (6 supra).

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It is to be noted that the Delhi High Court in MAC.APP.534 of 2017 & CM APPL.23164 of 2017 decided the said mater in The Oriental Insurance Co. Ltd.,^vs.Sardar Singh & others enhancing the compensation in an appeal^filed under Motor Vehicles Act and against the aforesaid order, the insurance company filed an appeal in Special Leave Appeal No.14319 of 2020 raising the contention that the Delhi High Court enhanced the compensation contrary to the law^laiddown in Rajana Prakash's case (6 supra) and it is pending^now.

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Out of four decisions cited by the learned counsel^for the claimants, the first decision is not applicable^because this Court cannot exercise the powers under Article 142 of the Constitution of India and two other decisions has nothing^todo with the powers of the High Courts to enhance the compensation in the absence of the cross objections by the appellants. It is no doubt true that as evident in MACMA No.945 of 2013, the Division Bench of this High Court in an appeal filed by the insurance company enhanced the compensation in favour of the claimants without there being any cross appeal or objections. It is to be noted that the Hon'ble Supreme Court interpreted^Order

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41 Rule 33 of the Civil Procedure Code and categorically^evolved a principle that in an appeal filed by the insurance company praying to reduce the compensation in the absence of any cross objections by the claimants, High Court has no power^toenhance the compensation. The law laid down by the Hon'ble Supreme Court in the aforesaid decision is binding on all the^Courtsunder Article 141 of the Constitution of India. The decision of the Hon'ble Supreme Court as above is directly dealing^withaMotor Accidents Claims Appeal before the High Court and by interpreting the powers of the High Court under Order 41 Rule 33 of the Civil Procedure Code. The Hon'ble Supreme Court interpreted the law with illustration also.

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Hence, this Court has to follow the law laid down by the Hon'ble Supreme Court as above. In the present^casethe appellant/insurance company filed the appeal with one of the contentions to reduce the compensation. At best, the^claimants can defend the quantum of compensation awarded by the Tribunal by pointing out other defects any in the award, if this Court proposes to reduce the compensation on any other ground.

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Apart from this, the factual aspects are that the insurance company filed the present appeal way back in the year 2016. The respondents/claimants made appearance duly by

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engaging counsel and they kept quite al! through without filing any cross objections. The filing of cross objections by any opponent in an appeal is from regulated by the provisions of Order 41 Rule 22 CPC. Order 41 Rule 22 CPC stipulates^atime also for filing of cross objections. The respondents/claimants^at the fagend of the appeal when it listed for hearing that too, during the course of arguments advanced a contention for enhancing of compensation. In all fairness the respondents/ claimants should have filed cross objections when the appeal is pending since the year 2016 specifying the heads under^which they are seeking for enhancement of the compensation. Even after the judgment in Pranay Sethi's case (1 supra)^considerable time has been elapsed and the respondents all through kept quite. The very contention raised by the respondents during the course of hearing of the appeal to enhance the compensation is also based upon uncertainties. The appellant is the master^ofhis own appeal. The appellant has every power to withdraw the same even at the time of hearing in accordance with law. In the event of withdrawal of any appeal in the given situation, the claimants will have to suffer with their request to^enhancethe compensation in the absence of any cross objections or cross appeal. In all fairness, the respondents should have^filed cross

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to enhance the compensation in accordance objections so as with law which they failed to do. 44) Having regard to the principles of law evolved by the Hon'ble Supreme Court and the factual analyzation,^thisCourt is of the considered view that the contention of the respondents/ claimants during the course of hearing to enhance the compensation cannot be countenanced, The compensation awarded by the Tribunal was on reasonable basis looking into several factors. Under the circumstances, the appeal^filedbythe appellants is devoid of merits, as such, appeal is liable to be dismissed.

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In the result, MACMA is dismissed confirming, the award, dated 18.03.2015 in M.V.OP.No.1716 of 2012,^passedby the Motor Accident Claims Tribunal-cum-Additional District &. Sessions Judge, Visakhapatnam. Under the circumstances. without costs. Consequently, miscellaneous applications pending, if^any, shall stand closed.

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SD/- N NAGAMMA ASSISTANT REGISTRAR SECTION OFFICER

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//TRUE COPY//

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One Fair Copy to the Honourable Sri Justice A.V.Ravindra^Babu (For His Lordships’ kind perusal)

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To,

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The Special Judge for Trial of cases under SC &^{STCases(POA)Act-} Cum-Additional District and Sessions Judge. Visakhapatnam, Visakhapatnam district (with records if any)

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One CC to Sri. Vinod Kumar Tarlada (Standing Counsel^for APSRTC) Advocate [OPUC]

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One CC to Sri. Challa Ajay Kumar Advocate [OPUC] 4. Nine(09) L.R copies 5. The Under Secretary, Union of India, Ministry of^{Law,JusticeandCompany} Affairs, New Delhi

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