V Venkat Aramana Vs the Superintending Engineer and 2 Others

SMT A LAKSHMI DEVI, W/O LATE A.CHALAPATHI RAO AGED 55 YEARS, HINDU, HOUSEWIFE, R/O H.NO. 7-36-74 NEAR A.N.TAILORS, WESTERN COLONY, SRISAILAM PROJECT DAM EAST, SUNNIPENTA, KURNOOL DISTRICT.

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...RESPONDENT(S):

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Appeal filed under Order 41 of CPC praying thet the Highcourt may be pleased toaggrieved by the Order and Decree dt. 17-10-2016 passed in M.V.O.P.No. 88 of 2014 on the file of the Chairman, Motor Vehicle Accident Claims Tribunal-cum-VI Addl. District Judge, Kurnool

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IA NO: 2 OF 2017(MACMAMP 7974 OF 2017

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased

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IA NO: 1 OF 2018

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to grant stay of all further proceedings including the withdrawal of the amounts deposited by the 1st respondent to the credit of MVOP No. 88 of 2014 on the file of the Chairman, MACT-cum-VI Addl. District Judge, Kurnool, pending disposal of the above MACMA No. 499 of 2017, in the interest of justice and to pass

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Counsel for the Appellant:

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1.K MOHAN RAMI REDDY

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Counsel for the Respondent(S):

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1.4904/T KUMAR BABU

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2.15549/GP FOR ARBITRATION (AP)

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3.T KUMAR BABU

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The Court made the following:

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THE HONOURABLE SRI JUSTICE A. HARI HARANADHA SARMA M.A.C.M.A.No.499 of 2017

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JUDGMENT :

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Introductory:

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Heard Sri K. Mohan Rami Reddy and Sri B. Nagi Reddy, learned counsel

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for the appellant, Sri T. Kumar Babu, learned counsel for the respondents and

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learned Government Pleader for Arbitration.

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Challenge in this appeal is against the order and decree dated 17.10.2016 passed in M.V.O.P.No.88 of 2014 by the Motor Accidents Claims Tribunal-cum-

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VI Additional District Judge, Kurnool (for short “the learned MACT”). Claim was laid by one V. Venkata Ramana contending that his paternal grandfather V. Narayana (hereinafter referred to as “the deceased”) died in a road traffic accident due to rash and negligent driving of the driver of the Settle Vehicle bearing No.AP M 2087 (hereinafter referred to as “the offending vehicle”).

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The offending vehicle was owned by Respondent No.1 / Superintending Engineer, Dam Maintenance, Sundipenta of Srisailam Project and the driver was under the employment of Respondent Nos.1 and 2 who are in control of the offending vehicle. Respondent No.3 is the paternal aunt of the claimant.

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Learned MACT awarded compensation in favour of the claimantV. Venkata Ramana, Respondent No.3-paternal Aunt of the claimant and another

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person by name one Mr.Niranjan, who is said to be the brother of the claimant / petitioner and not a party before the learned MACT. Claim was made for Rs.4,00,000/-. Learned MACT awarded a compensation of Rs.2,07,000/-.

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Case of the claimant:

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On 29.09.1993 at about 6:00 A.M. while the deceased, was travelling in the offending vehicle from Sunnipenta to the Dam site for attending duty, vehicle met with an accident near Switch yard, Srisailam Project, as a result the vehicle fell into a ditch and deceased and 18 persons died and others sustained injuries. At the time of the accident, the vehicle was driven by the driver i.e. one Mr.Salam, with high speed in a rash and negligent manner. Driver of the offending vehicle is responsible for the accident. The offending vehicle was meant for carrying the employees who were working in the Dam maintenance, Srisailam Project, from Sundipenta to the dam site. The offending vehicle belongs to Respondent No.1.

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Claimant is the grandson of the deceased. He is the only legal heir and dependent of the deceased. The accident occurred due to the rash and negligent driving of the driver of the offending vehicle who is under the employment of Respondent No.1. Respondent No.2 is representing the State. Therefore, both Respondent Nos.1 and 2 are liable to pay the compensation.

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Case of Respondent No.1:

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The petition allegations are false. The petition is filed after a lapse of 20 years, as there were no legal heirs to the deceased, no claim was immediately filed. Deceased date of birth was 01.07.1949 as per the records. His wife is one

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Smt. V. Bala Krishnamma and they were having three daughters i.e. Pedda Narasamma, Chinna Narasamma, and Lakshmi Devi and one son by name Venkateswarlu. The petitioner is no way connected to the deceased.

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Case of Respondent No.3:

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Respondent No.3 is the daughter of the deceased. She was not added as claimant / petitioner in the main O.P., hence filed application for impleadment. The accident has occurred on 29.09.1993. Rash and negligent driving of the driver of the offending vehicle is the cause for accident. She is the daughter of the deceased, hence entitled for half share in compensation amount awarded.

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On the strength of pleadings, the following issues were settled for trial by the learned MACT:

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1.Whether the accident occurred due to the rash and negligent driving of the driver of the vehicle bearing No.AP M 2087?

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Whether the deceased Mr.V.Narayana, died in the road accident?

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Whether the petitioner is entitled to compensation? If So, to what amount and against whom?

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To what relief?

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10. Evidence before the learned MACT:

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	Description	Remarks
Oral evidence	P.W.1:V. Venkata Ramana	Claimant
	P.W.2:D. Vijayudu	Tahasildar, Srisailam
	RW.1: B. Rambabu	Superintending Engineer, Dam Maintenance Circle, Srisailam Dam
	RW.2: A. Lakshmi Devi	Respondent No.3
	RW.3: T. Rathna Jayakar	Deputy Executive Engineer, Sraisailam project, Srisailam.
Documentary evidence	Ex.A1: Certified copy of FIR Ex.A2: Certified copy of Inquest Report Ex.A3: Attested copy of postmortem report Ex.A4: Certified copy of Common Order dated 14.02.2003 Ex.A5: Certified copy of Order in M.V.O.P.No.267/2004 Ex.A6: Death Certificate dated 13.02.1994. Ex.A7: Death Certificate dated 22.05.2002 Ex.A8: Legal Heir Certificate dated 27.10.1993 Ex.A9: Legal Heir Certificate dated 03.05.1994.	Marked on behalf of the petitioner(s).
	Ex.B1: Photocopy of Family Members Certificate Ex.B2: Letter dated 30.08.2016 Ex.B3: Photo Copy of Family Members Certificate dated	Marked on behalf of the

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27.10.1993.	Respondents.
Ex.B4: Photo Copy of Family
Members Certificate dated
12.11.2014
Ex.B5: Attested Copy of
Aadhaar Card.
Ex.B6: Attested Copy of House Hold Card
Ex.B7: Letter received from
Dy.Executive Engineer, R&B
Sub Division.II, Srisailam Project.

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11. Arguments in the appeal:

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11(1). For the appellant:

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(i). Awarding of compensation in favour of one Mr.Niranjan, brother of the claimant/appellant is incorrect when he is not a party to the case.

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(ii). Awarding of compensation in favour of Respondent No.3, maternal aunt of the claimant / appellant who is married daughter of the deceased is not correct. (iii). The deceased is none other than the grandfather of the appellant. Already the father, mother and grandmother of the appellant died and the appellant alone is the legal heir of the dependent, hence he alone is entitled for compensation.

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(iv). Learned MACT ought to have awarded entire compensation to the appellant.

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(v). Proper issues are not framed.

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(vi). Compensation awarded is very low.

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11(2). For the Respondents:

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(i) Learned counsel for Respondent Nos.1 and 2 argued that the dependency

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and legal heir status of the claimants was disputed by Respondent Nos.1 and 2. Learned MACT erred in ignoring the same and the said aspect is not properly addressed.

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11(3). Learned counsel for Respondent No.3 submitted that Respondent No.3 is also entitled for compensation.

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There is no appeal by the Government. Therefore, the issue relating to the accident, negligence found by the learned MACT are out of dispute from the end of Respondent Nos.1 and 2.

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The points that arise for determination in this appeal are:

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(1) Whether the provisions of the Code of Civil Procedure (CPC) can be applied to original and appellate proceedings initiated in terms of the Motor Vehicles Act,1988, and if so, to what extent?

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(2) Whether non-joinder of necessary parties will have any effect on deciding a claim made before the learned MACT and whether an award can be passed in respect of such an absentee party?

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(3) What is the effect of impugned order and decree passed in respect of Niranjan in his absence?

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(4) Whether the entitlement of eligible claimants for compensation and the quantification thereof done by the learned MACT under the impugned order and decree is just and reasonable?

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(5) Whether the impugned order and decree dated 17.10.2016 passed by the learned MACT in M.V.O.P.No.88 of 2014 are sustainable in law and on facts or whether interference is necessary if so, on what grounds?

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(6) What is the result of the appeal?

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Before adverting to answering the points framed, it is found proper to briefly refer the evidence and the findings of the learned MACT.

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Evidence:

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The offending vehicle belongs to the Respondents. Some other victims filed M.V.O.P.No.1196 of 2000 and M.V.O.P.No.267 of 2004. They were allowed by the learned I Additional District Judge and the learned II Additional District Judge, Kurnool.

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During his cross examination of claimant done for Respondent No.3, it is elicited that the deceased is her paternal grandfather. Father of the claiamant, V. Venkateswarlu is the sole son. One Claimant himself and second one is Mr.

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Niranjan are his sons. Claimants father worked as a line man in the P.W.D. On compassionate grounds job of his father given to Mr. Niranjan. He do not know about the three daughters of the deceased, Smt. Pedda Narasamma and Smt. Chinna Narasamma are no more.

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17(i). P.W.2 / Tahsildar deposed that previously they used to issue legal heir certificate. But, at present they are issuing only Family Member Certificate. After receiving the notice from the Court, he conducted enquiry and he came to know that the deceased was not having any children at all.

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17(ii). During cross examination of P.W.2 for Respondent No.3, it was elicited that family member certificate dated 12.11.2014 was issued form his office stating that Respondent No.3 is also daughter of the deceased.

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During his cross examination of R.W.1 for Respondent No.3, he has stated that as per service register of the deceased he was having only three daughters, but their names are not mentioned. Therefore, he cannot say whether Respondent No.3 is one among the three daughters.

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Respondent No.3 was examined as R.W.2. She has stated that her father is having three daughters and one son. She alone alive. She is relying on service book of her father which shows that he has three daughters and Family Member Certificate is also filed to show the legal heir details.

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One T. Ratna Jayakar was examined as RW.3. He is working as Deputy Executive Engineer, Srisailam Project, Srisailam. He brought the original service register of the deceased, who was a Pump Operator. His service book is 30 years old. Some pages are not available. In the said service book declaration of family members is not there. The deceased availed Leave Travel Concession (LTC) during the year 1979-80 and at that time his family members details are noted. As per the same, he was having a wife, father, mother and three daughters.

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Findings of the learned MACT.

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21(i). With regard to negligence and death of deceased due to accident, the learned MACT observed that the Police registered Crime No.45 of 1993 for the offences under Section 304-A IPC at Srisailam II Town Police Station, since the driver of the offending vehicle died, charge sheet might not have filed. The occurrence of the accident and negligence of the driver of the offending vehicle can be believed in view of the in the facts and circumstances of the case particularly on the application of principle of res ipsa loquitur.

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21(ii). With regard to entitlement of the claimant, the findings of MACT are that Ex.A2 is the inquest report of deceased wherein Mr. Vaddeti Venkateswarlu is shown as the son of the deceased. Therefore, it is concluded that V. Venkateswarlu is the son of the deceased. Ex.A6 is death certificate of V.

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Bala Kistamma which shows her as wife of the deceased. There is no dispute from any corner with regard to the relationship of Smt. Vaddeti Bala Kistamma with the deceased as his wife. Ex.A6 was issued on 18.02.1994 mentioning the date of death of Smt.V. Bala Kistamma as 13.02.1994.

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21(iii). Respondent No.3 admitted that the claimant is her nephew. There is no evidence to show that Smt. Bala Kistamma married the deceased subsequent to her first marriage and having some children through first husband. Ex.A8 is the original legal heir certificate indicating that Smt. V. Bala Kistamma is entitled to receive the death benefits and other benefits of the deceased. Ex.A9 is the original legal heir certificate dated 03.05.1994 stating that V. Bala Kistamma, wife of the deceased died on 13.02.1994 and claimant PW.1 is entitled to receive the amounts due to her. It is also mentioned that PW.1 is the paternal grandson of Smt. Bala Kistamma. As per Ex.A7, Mr. V. Venkateswarlu, son of Mr.V. Narayana, father of the claimant died on 22.05.2002.

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21(iv). PW.1 / claimant stated in the cross examination that he is having a brother by name Mr. Niranjan, who got job of his father Mr. Venkateswarlu on compassionate grounds. For the reason known to the claimant/ PW.1, said Niranjan is not impleaded as a party to the petition. Merely, because Mr.Niranjan got the job on compassionate grounds his claim cannot be denied.

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21(v). RW.2 / Respondent No.3 came on record by impleading herself as per orders in I.A.No.403 of 2014, dated 04.06.2015. No appeal or revision is preferred on that.

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21(vi). PW.1, his brother Niranjan and RW.2 / Respondent No.3 are entitled to receive compensation. The claimant and his brother Niranjan and Respondent No.3 are entitled for compensation of Rs.2,07,000/-.

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21(vii). Petitioner / claimant is entitlement for Rs.62,000/- with costs and accrued interest; Respondent No.3 is entitled for Rs.83,000/- with accrued interest and Mr. Niranjan is entitled for Rs.62,000/- with accrued interest.

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Point No.1: Whether the provisions of the Code of Civil Procedure (CPC) can be applied to original and appellate proceedings initiated in terms of the Motor Vehicles Act,1988, and if so, to what extent?

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Statutory Guidance:

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Section 169 of the Motor Vehicles Act, 1988 provides as to procedure that

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can be followed which reads as follows:

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169. Procedure and powers of Claims Tribunals:

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(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.

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(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

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(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of any matter relevant to the inquiry to assist it in holding the inquiry.

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Section 173 of the Motor Vehicles Act, 1988 provides for a relief of appeal to the High Court, which reads as follows:

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173. Appeals:

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(1) Subject to the provisions of sub-section (2), any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:

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Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court:

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Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

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(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.

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Section 176 of the Motor Vehicles Act, which reads as follows:

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176. Power of State Government to make rules:

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A State Government may make rules for the purpose of carrying into effect the provisions of sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:

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(a) the form of application for claims for compensation and the particulars it may contain, and the fees, if any, to be paid in respect of such applications;

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(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;

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(c) the powers vested in a Civil Court which may be exercised by a Claims Tribunal;

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(d) the form and the manner in which and the fees (if any) on payment of which an appeal may be preferred against an award of a Claims Tribunal; and

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(e) any other matter which is to be, or may be, prescribed.

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Exercising the power under Section 176, the rules made for the A.P. State, applicable in the context, are as follows:

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25(i). Chapter „11‟ of the A.P. Motor Vehicles Rules, 1989 commencing from

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Rule 455 to Rule 476A deals with the powers of the Tribunal and all other allied

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aspects like form of application, registration, notice to parties, appearance and

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examination of parties, local inspection, summary examination of parties, method of recording evidence, adjournments, framing and determination of issues, judgments and enforcements of awards, Court fee relating to claim petitions applicability of Civil Procedure Code and the application for claim basis to award the claim by the claims tribunal. Rule 476 of the A.P. Motor Vehicles Rules, 1989 reads as follows:

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Rule 476: Application for claim :-

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(7) Basis to award the claim :- The Claims Tribunal shall proceed to award the claim on the basis of;-

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(i) Registration Certificate of the Motor Vehicle involved in the accident;

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(ii) Insurance Certificate or Policy relating to the insurance of the Motor Vehicle against the Third party risk; (iii) Copy of First Information Report;

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(iv) Post-mortem certificate or certificate of inquiry from the Medical Officer; and

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(v) The nature of the treatment given by the Medical Officer who has examined the victim.

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(7A) Specification of amount of compensation awarded by the Tribunal to each victim:- Where compensation is awarded to two or more persons, the Claims Tribunal shall also specify the amount payable to each of them.

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Rule 473 was deals with applicability of the CPC. Rule 474 deals with the

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form and number of the appeal against the decision of the Claims Tribunal. Rules 473 and 474 reads as follows:

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Rule - 473. Code of Civil Procedure to apply in certain cases:

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The following provisions of the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908), shall so far as may be apply to proceedings before the Claims Tribunal namely, Order V, Rules 9 to 13 and 15 to 30 : Order IX, Order XIII. Rules 3 to 10 ; Order XVI. Rules 2 to 21 ; Order XVII and Order XXVIII. Rules 1 to 3.

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Rule - 474. Form and number of appeals against the decision of claims Tribunal.

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(1) An Appeal against the award of a Claims Tribunal shall be preferred in the form of a memorandum stating concisely, the grounds on which the appeal is preferred ;

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(2) It shall be accompanied by a copy of the judgement and the award appealed against.

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As per Rule 473 of the CPC, the provisions thereof apply, more specifically, the orders contemplated therein vide Order V Rules 9 to 13 and 15 to 30, Order IX, Order XIII Rules 3 to 10, Order XVI Rules 3 to 21, Order XVII, and Order XXVIII Rules 1 to 3. Rule 174 provides for the form of appeal, which refers that appeals shall be in the form of a memorandum, concisely stating the grounds on which the appeal is preferred.

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Precedential Guidance:

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The procedure applicable in respect of regular appeals in terms of Order XLI Rule 33, CPC whether applies in the case of an appeal in terms of the Motor Vehicles Act, is the next debatable point. This aspect was considered by the Division Bench of this Court in National Insurance Company Limited vs. E. Suseelamma and others¹ , wherein after referring to the judgment of Hon‟ble Apex Court in Sharanamma vs. North East Karnataka RTC² with reference to Section 173 of the Motor Vehicles Act, found that the normal rules which apply to appeals before the High Court are applicable to such an appeal also. Observations of Hon‟ble Apex Court in Sharanamma vs. North East Karnataka

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RTC (2 supra) vide para 10 were reproduced in para 58 of the judgment of Division Bench of this Court in National Insurance Company Limited vs.

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E. Suseelamma and others (1 supra) is as follows:

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58. Paragraph-10 in Sharanamma (supra) is reproduced as under:—

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“10. When an appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter shall be referred to as “the Act”), before the High Court, the normal rules which apply to appeals before the High Court are applicable to such an appeal also. Even otherwise, it is well-settled position of law that when an appeal is provided for, the whole case is open before the appellate court and by necessary implication, it can exercise all powers incidental thereto in order to exercise that power effectively. A bare reading of Section 173 of the Act also reflects that there is no curtailment or

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1 2023 SCC Online AP 1725

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2 (2013) 11 SCC 517

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limitations on the powers of the appellate court to consider the entire case on facts and law.”

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Further, the Division Bench of this Court, in paragraphs 63, 64, 65 and 66, considered the scope of the powers of appellate Court in terms of Section 173 of the Motor Vehicles Act and Order 41 Rule 33 CPC, after referring to the judgments of the Hon‟ble Apex Court in (i) Pannalal vs. State of Bombay³ (ii) Chaya vs. Bapusaheb⁴ (iii) Pralhad vs. State of Maharashtra⁵ . Relevant observations are as follows:

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63. In Pannalal v. State Of Bombay, with respect to Order 41, Rule 33, the Hon'ble Apex Court held that wide wording of Order 41, Rule 33 CPC, was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal, but also to give such other relief to any of the respondent as “the case may require”. It was further held that if there was no impediment in law, the High Court in appellate court therefore, though allowing the appeal of the defendant by dismissing the plaintiffs suit against it, but the plaintiff/respondents decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the rule make this position abundantly clear the illustration puts the position beyond argument.

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64. In Chaya v. Bapusaheb, the Hon'ble Apex Court held that this provision (Order 41 Rule 33 C.P.C) is based on a salutary principle that the appellate

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3 AIR 1963 SC 1516

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4 (1994) 2 SCC 41

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5 (2010) 10 SCC 458

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court should have the power to do complete justice between the parties. The rule confers a wide discretionary power on the appellate court to pass such decree or order as ought to have been passed or as the case may require, notwithstanding the fact that the Appeal is only with regard to a part of the decree or that the party in whose favour the power is proposed to be exercised has not filed any appeal or cross-objection. While it is true that since the power is derogative of the general principle that a party cannot avoid the effect of a decree against him without filing an appeal or crossobjection and, therefore, the power has to be exercised with care and caution, it is also true that in an appropriate case, the appellate court should not hesitate to exercise the discretion conferred by the said rule.

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65. In Pralhad v. State of Maharashtra, the Hon'ble Apex Court held that the provisions of Order 41, Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or 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. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression “order ought to have been made” would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying “the court may pass such further or other order as the case may require”. This expression “case” would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.

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66. It is apt to refer Para No. 18 as under:—

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“ 18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as

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the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression “order ought to have been made” would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying “the court may pass such further or other order as the case may require”. This expression “case” would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.

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Analysis:

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In view of the above, it is clear that the applicability of the CPC is not completely barred. It is a convention to frame the issues in all MACT cases by the Tribunals. Framing of issues is an enabling devise to have a focus on disputed points, particularly with reference to assertions and denials. The learned MACT, in the present case, failed to frame proper issues touching the exclusive right of the claimant to the compensation and his dependency, although the same is in dispute.

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Respondent No.3 before the learned MACT is the daughter of the deceased. She may be a married daughter. The claimant is the grandson of the deceased.

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However, the contention of the impleaded party, the daughter of the deceased, is that she is entitled for compensation being the daughter. The

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learned MACT should have framed a proper issues or at least addressed the matter in the form of proper points for consideration with reference to evidence as to the exclusive entitlement of the claimant. No doubt, in the judgment, apportionment was made. When the learned MACT apportioned compensation to a non-party to the proceedings, it should have formulated at least a point as to entitlement of the absentee party. Deciding the entitlement of an absentee party without notice or inviting him is not a correct approach on the part of the learned MACT. Moreso, when the claimants says that he alone is entitled for compensation and that the absentee party is not entitled.

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Why Mr. Niranjan said to be the brother of the claimant and in favour of whom the learned MACT apportioned the compensation is not impleaded and why no direction was given to the claimant to implead such a person is not even whispered in the judgment.

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The appellant strongly contends that awarding compensation to Mr. Niranjan is not necessary. He is contending that Niranjan has got employment. From the angle of legal heir status, Niranjan and the claimant stand on the same footing. The factual scenarios on dependency aspect may differ but that shall be decided based on the evidence that may be adduced by parties. There is no opportunity for Mr. Niranjan to place any evidence, at least

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to indicate whether he was really in employment which will enable to decide dependency and comparative entitlement.

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With regard to Respondent No.3, the daughter of the deceased (who may be a married daughter), her proximity and nearness in relationship from a legal end is more to the deceased when compared to the claimant or absentee party Niranjan.

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The appellant is disputing that Respondent No.3 is not entitled for compensation. The learned MACT should have either framed a proper issue or a point for consideration and allowed the parties to let in evidence on the said aspect framed. Even Order XIV Rule 5 of the CPC provides for framing an issue at the judgment stage also. But, the parties must be in contemplation in such issue. When Niranjan is not at all before the Court, there can be no question of the said Niranjan or claimant in contemplation of either an issue or point likely to be decided by the Tribunal.

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The learned MACT lost sight of this legal, logical and important angle, more particularly the observance of the principles of natural justice so far as Niranjan is concerned.

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Sri B. Nagi Reddy, learned counsel arguing for the appellant, who said to

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have appeared before the leaner MACT as can be seen from the preamble of the

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judgment, at one stage, submitted that the matter can as well be remanded for fresh consideration to the Tribunal as to who are entitled.

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The discussion made above, with reference to statutory and precedential guidance, makes it clear that the procedure contemplated under the CPC can be adopted even in respect of MACT cases, particularly where it is necessity to have a fair and complete adjudication of the disputed questions of facts. It is not always so, but in peculiar contexts of the cases like the present one, there need not be any reservation that the provisions of Code of Civil Procedure are complicated and contribute for delays. The CPC and the provisions thereunder are made with vision and wisdom and that they stood for the test of time and all changing scenarios. Therefore, either the applicability or the adoptions of the provisions of the CPC need not be doubted nor can there be any reluctance or refusal to follow them, particularly when there is no prohibition in the statute governing the context viz. the Motor Vehicles Act, 1988.

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Deciding a point in respect of an absentee party is a clear violation of the principles of natural justice. Even partly deciding a point in favour of such absentee parte may sometimes result in injustice to both sides. Even the claimant in the present case is opposing giving a share in the compensation amount to the absentee party. If the absentee party, Mr. Niranjan is invited, he will come and claim, he will have an opportunity to place his evidence. Further, if

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the absentee party viz., Niranjan is made to appear the claimant will have to chance to vindicate his better entitlement.

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Whether the test as to non-joinder of necessary party contemplated under Order I Rule 9 applies to the present context is an another aspect. Non-joinder of a necessary party is another question. Always a distinction is to be drawn between a proper party and necessary party.

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The proceedings before a learned MACT cannot be dismissed for nonjoinder of a necessary party is the view of the Division Bench of Hon‟ble High Court of Karnataka in T.R. Srinivas vs. K.N. Madhu and Others⁶ , wherein, in paragraph Nos.13 and 14 of the judgment, the effect of non-joinder of necessary parties is discussed. Paragraph Nos.13 and 14 of the Judgment reads as follows:

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13. The Tribunal dismissed the petition on the ground that appellant has not impleaded his other siblings in the petition as claimants or respondents The claim petition was under Section 166 of the MV Act. Section 166(1)(c) of the MV Act states that where death has resulted from the accident. Petition shall be filed by all or any of the legal representatives of the deceased. The Proviso to Section 166(1) of M. V. Act which is relevant for the purpose of this case read as follows:

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166. Application for compensation. (1) An application for compensation arising out of an accident of the nature specified in subsection (1) of section 165 may be made-

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6 2023 0 Supreme (Kar) 26

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(a) by the person who has sustained the injury, or

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(b) by the owner of the property; or

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(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

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(d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be:

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Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application."

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14. A reading of the above provisions makes it clear that in case of death due to motor accident, all or any of legal representatives of the deceased can file a claim petition. In case all of them are not impleaded as claimants, the claimant shall implead them as respondents. It is settled law that a petition or a suit cannot be dismissed for non-joinder of necessary parties. Firstly, the Court has to call upon the plaintiff or petitioner to implead such parties. If he fails to do so, then the petition or suit has to be dismissed. Learned counsel for appellant submits that appellant may be permitted to implead his other siblings. Permission can be granted to appellant to do the same before the Tribunal.

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43. In a case between Kaushal (Smt.) and Others vs. Raj Kamal and

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Others⁷ , the Hon‟ble High Court of Punjab and Haryana at Chandigarh observed that non-joinder of all the legal representatives of the deceased does not

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7 2024 0 Supreme (P&H) 308

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invalidate the claim. In a case between T.R. Srinivas vs. K.N. Madhu and Others (6 supra), the Division Bench of High Court of Karnataka has remanded the case for fresh consideration to the MACT.

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Order 41 Rule 23, 23-A and 25 of the CPC deal with the situation where the appellate Court may remand the matter. The provisions read as follows:

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“ 23.Remand of case by Appellate Court .—Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

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23-A. Remand in other cases .—Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under Rule 23.

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25. Where Appellate Court may frame issues and refer them for trial to

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Court whose decree appealed from .—Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the

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Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;

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and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.”

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It is relevant to note:

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(i) The proper issue touching the exclusive entitlement of the appellant/claimant in contrast to the claim of Respondent No.3 before the learned MACT no issue is framed.

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(ii). One Niranjan, said to be the brother of the appellant/claimant, is not added as a party but he is also found eligible for compensation by the learned MACT without an issue.

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(iii). Appellant is disputing that Niranjan is not entitled for compensation.

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(iv). There is no reason why the claimant shall not be directed to add the said Niranjan as a party to the proceedings.

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(v). A Division Bench of the Hon‟ble High Court of Karnataka in the case of T.R. Srinivas vs. K.N. Madhu and Others (6 supra), in a similar situation, the matter was remanded to the Tribunal for deciding the matter on impleadment of the necessary party.

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For the aforesaid reasons and in the light of the statutory and precedential

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guidance, point Nos.1 to 3 are answered as follows:

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Point No.1: Whether the provisions of the Code of Civil Procedure (CPC) can be applied and appellate proceedings initiated in terms of the Motor Vehicles Act,1988, and if so, to what extent?

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Ans. The provisions of the CPC can be applied in MACT cases on original and appellate proceedings unless there is bar.

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Point No.2: Whether non-joinder of necessary parties will have any effect on deciding a claim made before the learned MACT and whether an award can be passed in respect of such an absentee party?

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Ans. Non-joinder of a necessary party cannot be a ground to non-suit proceedings. However, the claimant can be directed to add the necessary party to meet the ends of justice before passing of orders / judgment and decree.

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Point No.3: What is the effect of impugned order and decree passed in respect of Niranjan in his absence?

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Ans. The impugner order and decree passed in respect of Niranjan, in his absence, though some share was allotted to him, as there was no opportunity to him to place proper evidence and as no proper issue is framed in that regard by the learned MACT, the award is liable to be set aside to the extent of

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apportionment of compensation, for the reasons elaborately considered under point No.1 to 3 above.

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Point No.4: Whether the entitlement of eligible claimants for compensation and the quantification thereof done by the learned MACT under the impugned order and decree is just and reasonable?

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(i) Entitlement:-

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There is no appeal by the State, which contested the matter before the learned MACT. Therefore, the points relating to negligence, liability of Respondents No.1 and 2 before the learned MACT and the entitlement of eligible claimants for compensation are all out of dispute. Therefore, the findings on the said aspects are found fit to be confirmed even on the consideration of the evidence on record.

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(ii) Quantum:-

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The Compensation was awarded about nine years back. The claim petition was filed before the learned MACT originally in the year 2014. The accident occurred in the year 1993. By considering the evidence relating to the age, occupation and income of the deceased, the learned MACT quantified the compensation with reference to the parameters contemplated like his age and income and applied the proper multiplier. However, with regard to loss of estate

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funeral expenditure, only Rs.10,000/- and Rs.5,000/- respectively were awarded, as against Rs.15,000/- each contemplated in Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and Anr.⁸ and National Insurance Company Ltd. v. Pranay Sethi and Others⁹ cases. That amount can be added to the compensation awarded, whereby the entitlement will rise to Rs.2,22,000/- as against Rs.2,07,000/- granted.

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(iii). Therefore, with regard to quantum of compensation, save adding of above said compensation amount under the heads of funeral expenditure and loss of estate, the compensation awarded is fit to be confirmed. Therefore, the point framed is answered, concluding that the compensation awarded at Rs.2,07,000/by the learned MACT requires enhancement to Rs.2,22,000/- with interest at the rate of 9% per annum from the date of petition till date of realization.

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Point No.5: Whether the impugned order and decree dated 17.10.2016 passed by the learned MACT in M.V.O.P.No.88 of 2014 are sustainable in law and on facts or whether interference is necessary and if so, on what grounds?

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Ans. The order and decree dated 17.10.2016 passed by the learned MACT in M.V.O.P.No.88 of 2014 is liable to be set aside to the extent of apportionment of compensation among the claimant, respondent No3 before the learned MACT and Mr. Niranjan, said to be the brother of the claimant. The matter require

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8 2009 (6) SCC 121

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9 2017(16) SCC 680

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remand with a limited scope of enquiry as to what is the entitlement of the claimant i.e. V. Venkata Ramana, respondent No.3 before the learned MACT i.e. A. Lakshmi Devi and Mr. Niranjan, with a specific direction that the claimant shall implead Niranjan as a respondent in the proceedings.

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(ii). On impleadment of claimant V. Venkata Ramana, Mr. Niranjan, brother of the claimant and A. Lakshmi Devi maternal aunt of the claimant and daughter of the deceased are entitled to file their respective pleadings in brief and the learned MACT shall consider the following issues:

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(a). What is the extent of entitlement of V. Venkata Ramana / claimant and A. Lakshmi Devi / Respondent No.3 and Niranjan, proposed party, who shall be impleaded in accordance with law and with reference to the pleadings and evidence that may be placed by the parties, uninfluenced by any of the observations made hereinabove in this appeal. Point framed is answered accordingly.

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Point No.6: What is the result of the appeal?

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Ans. In the result, the appeal is disposed of with the following directions:

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(i) The findings of the learned MACT with regard to the liability of Respondent Nos.1 and 2 and the entitlement of the victims, viz. the

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legal heirs and dependents of deceased V. Narayana, for compensation is confirmed.

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(ii) Compensation awarded by the learned MACT at Rs.2,07,000/ with interest at the rate of 9% per annum is modified and enhanced to Rs.2,22,000/- with interest at the rate of 9% per annum from the date of petition till date of realization.

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(iii) However, the matter is remanded to the learned MACT with a direction for deciding the following issue and disposing of the M.V.O.P. :-

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What is the extent of entitlement of (1) V. Venkata Ramana / claimant, (2) A. Lakshmi Devi / Respondent No.3 and (3) Niranjan, proposed party?, who shall be impleaded, in accordance with law and with reference to the pleadings and evidence that may be placed by the parties, uninfluenced by any of the observations made in this appeal.

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(iv) On remand, the appellant / claimant shall file an application for impleadment of his brother Niranjan. In default thereof, the learned MACT may suo motu implead Niranjan by resorting to the procedure as per the law. Any default on the part of the appellant in

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cooperating with the learned MACT shall result in appropriate orders on a default basis.

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(v) Respondent Nos.1 and 2 shall deposit the compensation amount, in terms of the orders of this Court, before the learned MACT within a period of six weeks. On such deposit, the learned MACT shall keep the amount in a fixed deposit in a nationalized bank until disposal of the M.V.O.P. and directions as to disbursement on apportionment.

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(vi) Save the modification of the compensation amount and the remand of the case for the purpose of apportionment among the eligible claimants, the impugned order and decree dated 17.10.2016 passed by the learned MACT in M.V.O.P.No.88 of 2014 shall stand confirmed.

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(vii) Considering the case is being old, the learned MACT is requested to dispose of the case as early as possible, preferably within a period of six months of receipt of the record. All the parties are directed to cooperate for the same. The Registry is directed to remit the record forthwith.

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