JUDGMENT
1. This appeal preferred by the Karnataka State Road Transport Corporation hereinafter referred to as the K.S.R.T.C. has thrown up for determination a rather unusual and exceptional situation. Briefly stated, the point of law that is required to be set at rest is the question as to whether in the absence of an appeal or cross objections filed by the claimants in a compensation claimed under the Motor Vehicles Act, if the circumstances warrant and justify, whether the appeal Court would be within its right to enhance the compensation that was originally awarded. Issues can never arise in a vacuum and therefore, the brief facts that have given rise to this situation are material.
2. On 25-10-85 at about 8.15 a.m. the B.T.S. bus bearing No. M.Y.F. 8124 was being driven along Lavelle Road and the deceased who was a 13 year old school boy studying in the Baldwin School was riding a bicycle on the same road on his way to school. The bus was alleged to have been driven rashly and negligently as a result of which the bus collided against the bicycle and the most gruesome part of the incident was that the bus ran over the young school boy who was killed on the spot. There is only one witness who has deposed about the incident who is the Priest of the St. Marks Church which is in the vicinity of the place where the incident took place. The record indicates that the road in question was out of bounds for the bus insofar as it was a ‘no entry road’ despite which the bus was being driven on that road. The Tribunal accepted the evidence of P.W. 1 and held that the facts speak for themselves and consequently applied the doctrine of res ipsa loquitor and
awarded compensation quantified at Rs. 40,000/- plus a sum of Rs. 2,500/- against funeral expenses aggregating in all Rs. 42,500/- with interest at the rate of 9% p.a. The Tribunal has justified the award of compensation on the ground that the evidence has indicated that the deceased was a bright boy who had done well in his studies and that it was also demonstrated that he had excelled in Sports and other extra curricular activities. The Tribunal therefore took stock of the fact that the young student had the potential of embarking on a bright career and that in these circumstances it could be reasonably assumed that he would have done well for himself in life and, being the youngest son of the family that he would have in all probability been a source of support to his parents. The decision in question has been assailed by the Corporation principally on the ground that the evidence in this case is very minimal and that consequently, the finding of rashness and negligence against the driver of the bus is unjustified. In sum and substance, the Corporation disputes its liability.
3. When the appeal came up for hearing, it did appear to me that the compensation awarded in this case was inadequate. The respondents’ learned Advocate stated that after the loss of their son, the parents were in a state of shock and distress. He also stated that after the decision of the Tribunal, the learned Advocate who had conducted the matter had passed away and that his clients were altogether in no position to either file an appeal or cross-objections but he has advanced a strong plea that in the interest of justice, the Court should award compensation that is in consonance with what the claimants would legitimately be entitled to. In view of the fact that this was a case in which no appeal or cross objections had been filed by the original claimants, I passed an order dated 12-8-1997 calling upon the Corporation to show cause as to why the original compensation should not be enhanced. The order dated 12-8-1997 is reproduced below.–
“I have heard the appellant’s learned Advocate as also the respondents’ learned Advocate. The deceased was a young school boy who was run over by a B.T.S. bus in Bangalore City. The compensation claim for Rs. 2 lakhs was presented to the Tribunal and the Tribunal, in a thoroughly unsatisfactory judgment has awarded a sum of Rs. 42,500/- as aggregate compensation along with the usual interest at 9% p.a. etc. An appeal has been presented against the award by the Corporation which was admitted. When the appeal came up for hearing, the Corporation’s learned Advocate advanced certain submissions and so did the respondents’ learned Advocate. One of the points made by the respondents’ learned Advocate was that the boy’s father died shortly after the incident and he submitted that in the conditions in which the family was placed, that they were hardly in a position to file an appeal for enhancement or to file cross-objections in the current appeal, but his submission was that having regard to the facts and circumstances, that the amount awarded is on the low side. The Corporation’s learned Advocate pointed out that if the claimants were dis-satisfied with the quantum, that nothing prevented them
from filing an appeal against it but not having done so, that they are estopped in law from raising any such contention at this late point of time. There does appear to be considerable substance in this contention but an entirely different angle has arisen in this case namely the question as to what is the role of the Court in a situation where it prima facie appears that the compensation awarded may be inadequate. Whether in such a situation, it is open to the Court to issue a suo motu notice to the appellant to show cause as to why the compensation amount should not be enhanced, is an issue which to my mind is thrown up in this appeal and which requires to be decided. The Corporation shall accordingly show cause as to why the amount awarded as compensation should not be enhanced. It shall be open to the Corporation to file written objections or to make oral submissions both on points of fact as also on the points of law. For this purpose, the matter shall be relisted on 9-9-1997”.
4. At the hearing today, Mr. Pavin, learned Counsel who represents the Corporation submitted in the first instance that there is a bar of estoppel against the respondents because he pointed out that the order passed by the Tribunal was very much to their knowledge and that they have accepted that order and he submitted that in this background, that they cannot be permitted to now raise the contention that the compensation amount should be enhanced. He put forward a familiar argument vis-a-vis the respondents that the order has assumed finality and that under Order 41 of the CPC they would have been entitled to support that order but that they are precluded in law from asking for enhancement in view of the fact that they have waived their right to file an appeal or cross-objections. In support of his submissions, he drew my attention to two Division Bench decisions of this Court, the first of them in Jayakunvar Manilal Shah and Others v Syndicate Bank, Banavasi, Uttara Kannada District and Others, and the second one M/s. Sikka-N-Sikka Engineers Private Limited Bangalore v M/s. Cargo Transports, Bangalore. In both these cases, the Division Bench of this Court while considering the scope of the Appellate Court in Civil proceedings relating to a money decrees held that it is not open to the Court to enhance the liability by allowing a plea from the opposite party for variation of the decree in the absence of a formal appeal or cross objections. A more or less similar view has been propounded by the Supreme Court in the decisions in Raghunath and Others v Kedarnath, and Tummalla Atchaiah v Venka Narasingarao, wherein again, the Supreme Court was dealing with the ambit and scope of Order 41, Rule 22, CPC. Learned Counsel submitted on the basis of these decisions that the law is well-settled insofar as irrespective of which the record may indicate,
that Court cannot at the appellate stage enhance the compensation in the absence of a formal appeal or cross objections having been filed.
5. As against this position, the respondents’ learned Advocate drew my attention to a decision rendered by a five Judge Bench of the Supreme Court in Pannalal v State of Bombay and Others. The Court on that occasion was dealing with the provisions of Order 41, Rule 33 of CPC and while interpreting this provision of law laid down that if the circumstances so warrant, nothing precludes an appeal Court from granting a well deserved relief having regard to the powers vested in it under Order 41 Rule 33, CPC. This view has been reiterated in a later decision of the Supreme Court in Koksingh v Smt. Deokabai. The learned Advocate drew my attention to two more decisions in Oriental Fire and General Insurance Company Limited v Jagadish Babu and Others, and National Insurance Company Limited v Labanya Roy and Others, wherein, in slightly different circumstances the same views have been expressed. The submission canvassed by him is a two fold one, the first being that irrespective of whether an appeal or cross objections have been filed, if the interests of justice so require that there is nothing to stop a Court at the appellate stage from granting a relief and the second submission is that on the facts of the present case that merely because the respondents who because of their circumstances were either ill advised or were unable to prefer a formal appeal or cross objections, that this circumstance should not deprive them of their rightful entitlement. To my mind, both these submissions embody a situation which calls for this Court to decide the basic issue that is being debated in this proceedings, namely the question as to whether such a course of action as asked for by the respondents is permissible and secondly, if so in what category of cases. This last aspect of the matter assumes importance because the appellant’s learned Counsel has, with considerable justification pointed out to me that often times even if a Court makes any exception, that it may give rise to serious complications when the case is quoted as a precedent and is sought to be wrongly used, even in situations where such a relief is not warranted and that therefore, it may virtually open the flood gates. Apart from this, on facts, he has submitted that in this case no valid or cogent reasons have been set out for the respondents not having filed an appeal or cross objections.
6. I am in general agreement with the basic proposition of law that has been canvassed by the appellant’s learned Advocate when he points out that it is a well-settled principle that a party who suffers an order or a decree and does not appeal against it or assail it would normally not be permitted at the hearing of the appeal to try and take advantage of the situation by asking for enhancement. The issue is not that but really as to whether this situation prescribes an absolute and total bar to the
Court granting a relief if in the interest of justice such a relief is an absolute must: One has to view the situation from a rather practical point of view, the first of them being with regard to the very poor quality of legal assistance that is usually available in and around the M.A.C.T. and thereafter, the second aspect of the matter being that the status of the parties and their general condition themselves may be such that they are unable to agitate the matter further and the third aspect of the
matter which is relevant having regard to the present case, is the possibility of certain further tragic occurrences such as deaths that may have intervened, all of which may contribute to a situation wherein the Court finds that no appeal or cross objections have been filed. The essence of doing justice requires that compensation when awarded has got to be reasonable but has got to be fair and it has also got to be adequate having regard to the totality of the circumstances. The hearing of the appeal involves a total review of the case and the appeal is virtually an extension of the proceeding before the lower Court. The law is well-settled with regard to one interesting aspect of the matter namely that the Courts do come across a few instances where instead of overpitching the case before the Trial Court, a very modest amount is claimed and the
Tribunals in these circumstances have been wrongly limiting the relief to the amount that has been claimed on the ground that even though the party is entitled to something higher, what was asked for is a lower figure. This Court had occasion to correct these orders and to lay down that the Tribunal is required to pass an order quantifying the compensation correctly irrespective of what has been claimed on the basis of the principle that it is not the amount that is claimed in that matter, insofar as if the Court has the power to award a lesser amount, that it is equally equipped with the powers to award a higher amount. It is that principle which applies with equal force to the appeal Court and though I do not dispute that a Court would normally not permit a party to ask for enhancement unless an appeal or cross objections have been filed but there could be a very small category of cases in which a Court would make an exception, the reason being that the essence of doing justice requires that a Court will not refuse a relief only because of a technical or a procedural bar. I need to amplify here that if the technicalities are upheld, the result would be doing injustice insofar as the party will be left with a compensation lesser than what a fair evaluation entitles the party to. Again, I do not on the basis of the law as enunciated by the Courts in the decisions set out by me above, subscribe to the view that there exists any bar in the way of this Court exercising such powers. The powers do exist under Order 41, Rule 33, CPC and more importantly, such powers can certainly be exercised under Section 151, CPC in the interest of justice.
7. On facts, this is an extremely gruesome case. This is a case in which it has been demonstrated that the bus belonging to a public authority was being driven on a public road in total and flagrant breach of the law insofar as the vehicle was proceeding on a street which it was precluded from going on since the no entry rule proscribes it. In addition to this, the incident took place at 8.15 a.m. on a road that was relatively uncrowded in broad day light and the facts of the case themselves are
eloquent insofar as P.W, 1 has demonstrated how the young school boy was run over and died on the spot. These are circumstances that virtually aggravate the situation. On the other hand, the Tribunal has completely overlooked the potential of the young boy who was a brilliant student and who had excelled in several other extra curricular activities. He was on the threshold of a very promising career and by virtue of the principle of legitimate expectation the claimants were fully justified in contending that he would have certainly done well within a short period of time and that he would have been a support to them. A Court in these circumstances is required to evaluate as to what would be a fair and adequate compensation. It is true that mathematical formulas such as age factors should be applied but they only provide scientific guidelines to the Court. Having regard to the overall situation, a Court is required to gauge as to what would be the fair figure of compensation. There are two aspects to the matter, the first being the virtual investment of the parents in that young student over the years which is some sort of a parameter but the future potential is the safer guide. The status of the parties is also a factor to be taken into consideration and having regard to all these factors on a careful evaluation of the record, to my mind the claimants would be entitled to compensation aggregating to Rs. 1.50 lakhs in the present case, The Tribunal has awarded a sum of Rs. 2,500/- against funeral expenses which order is maintained.
8. The appeal accordingly fails and stand disposed of. The award passed by the Tribunal is modified insofar as the amount of Rs. 42,500/- is enhanced to Rs. 1,52,500/-. The rate of interest that was awarded i.e., at 9% p.a. from the date of filing of the application till the date of realisation is maintained. The Tribunal shall give credit to the appellants for the amount that has already been paid. The appellants are directed to deposit the balance amount with the Tribunal within a period of twelve weeks from today. On receipt of the amount, the Tribunal shall disburse the same to the respondent 2 since the first respondent has since passed away. The appeal to stand disposed of. No order as to costs.
9. Before parting with this judgment, it is very necessary in the public interest to render certain stringent directions. The facts of this case unmistakably establish that the life of a promising young school boy and that too, the son of a teacher of modest means has been ruthlessly curtailed due to the callousness of the driver of a public transport vehicle. The manner in which the B.T.S. and K.S.R.T.C. vehicles are driven within this State indicates beyond doubt that the drivers have absolutely no regard or concern for the safety of the passengers in the vehicles or for anybody else on the road. The driving styles betray clear homicidal tendencies and despite repeated admonitions from Court after Court, the situation, instead of improving has only worsened. It is ironical but true that if the passengers reach their destination alive and uninjured, that they are fortunate and that if the vehicle does not kill or maim somebody on the road that it is providential. The buses are driven at abnormal speeds but more importantly with such aggression and with no regard whatsoever for the rules of the road or for the consequences. The Corporation has done nothing to improve this situation apart from complaining that its Officers are helpless because of the muscle power and because of the arrogance that is displayed by its employees and the muscle power that the Union has openly demonstrated. The Corporation shall therefore, in the public interest and in the interest of safety and
welfare of the passengers and other road users issue written instructions to every driver of the Corporation and obtain an acknowledgement from the employee and retain the same on record. The Circular shall clearly point out the following.–
(a)that with immediate effect, any driver of the Corporation who is involved in any traffic offence will have to pay the fine personally out of his own salary,
(b)that in the event of damage being caused to the Corporation’s vehicle as a result of rash and negligent driving and the liability devolving on the Corporation, that the whole or percentage of the amount as the Disciplinary Authority may consider fit shall be recovered from the concerned employee.
(c)that in the event of the vehicle being involved in a serious incident resulting in death, that the employee shall be placed under suspension until the disposal of the legal proceedings as it shall not be considered safe in the public interest to permit him to operate a passenger transport vehicle unless cleared of the charges by the competent Court.
(d)that in the event of the Corporation being held liable to pay compensation for injury or death, that a fair percentage of the compensation shall be recovered from the employee concerned if the Court/Disciplinary Authority finds that it is a case of gross rash and negligent driving.
(A copy of this judgment shall be forwarded to the Minister for Transport, Government of Karnataka and to the Managing Director, Karnataka State Road Transport Corporation, both of whom shall be requested to acknowledge the receipts of the copy and to confirm that the directions issued by the High Court will be implemented by the Corporation.)