- 1 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS FIRST APPEAL NO.22660 OF 2012 (MV-D) BETWEEN: DIVISIONAL MANAGER, THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, RADHIKA TALKIES, BALLARI, REP/BY DIVISIONAL MANAGER, THE UNITED INDIA INSURANCE CO. LTD., DIVISIONAL OFFICE, GANDHICHOWK, RAICHUR, … APPELLANT (BY SMT. PREETI SHASHANK, ADVOCATE) AND: 1. SMT. ASHWINI W/O LATE AMBARISH BINGI, AGE: 32 YEARS, OCC: HOUSEHOLD, R/O: MARAKUMBI, NOW AT BUDUGUMPA, TQ: KOPPAL, DIST: KOPPAL. 2. HANUMAVVA W/O THIPPANNA, AGE: 61 YEARS, OCC: NIL, R/O: MARAKUMBI, NOW AT BUDUGUMPA, TQ: KOPPAL, DIST: KOPPAL. 3. MARUTHI TADLIGI S/O MALLAPPA TADLIGI, AGE: 27 YEARS, OCC: BUSINESS, OWNER OF THE MOTOR CYCLE NO.KA-28 K-2573, R/O: MARUTHI TRADERS, PANNAPUR CROSS, KARATAGI, TQ: GANGAVATHI, DIST: KOPPAL. … RESPONDENTS (R1 TO R3-HELD SUFFICIENT) THIS MFA IS FILED UNDER SECTION 173(1) OF MV ACT, 1988, PRAYING TO MODIFY THE JUDGMENT AND AWARD DATED: 22-02- 2012 PASSED IN MVC NO.290/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND MACT, AT GANGAVATHI. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench Date: 2025.09.18 11:16:53 +0530 - 2 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the Insurance Company calling in question the judgment and award dated 22.02.2012 passed in MVC No.290/2006 on the file of Senior Civil Judge and MACT, Gangavathi, thereby, the claim petition filed by the claimants under Section 163-A of the Motor Vehicles Act, 19881, is dismissed but awarding compensation of Rs.50,000/- as per Section 143 of the Act, 1988 by holding that the insurer and owner of the motorcycle are jointly and severally liable to pay compensation. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Tribunal. 1 hereinafter referred to as ‘the ACT, 1988’ for short - 3 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 BRIEF FACTS OF THE CASE: 3. On 15.08.2009, the deceased and his wife/claimant No.1 were proceeding on the motorcycle bearing Reg.No.KA-28 K-2573 towards Uppal village and when they came near Karatagi-Gangavathi road at about 11.30 pm, at that time, one buffalo suddenly crossed the road. Due to which, the deceased being rider of the motorcycle tried to avoid the accident but dashed the vehicle to the stone by the side of the road, then the deceased fell down on the road and sustained grievous injuries to head and other parts of the body. The deceased succumbed to the injuries on the spot. Therefore, the claimants being wife and mother have filed claim petition under Section 163-A of the Act, 1988, claiming compensation for the death of the deceased. However, the claim petition filed under Section 163-A of the Act, 1988 is dismissed but the Tribunal has awarded compensation of Rs.50,000/- under the principle of no fault liability as per Section 143 of the Act, 1988 by holding insurer and owner - 4 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 of the motorcycle jointly and severally liable to pay compensation to the claimants. Thus, because of existence of insurance policy, it is held that the Insurance Company is liable to pay compensation to the claimants. 4. This judgment and award is under challenge in this appeal by raising various grounds and the learned counsel for appellant/Insurance Company has vehemently submitted opposing the judgment and award passed by the Tribunal stating that the accident in question is caused due to rash and negligent riding of the motorcycle by the deceased himself and in such a case, the claimants are not at all entitled for any compensation as per the judgment of Hon’ble Supreme Court in the case NINGAMMA AND ANOTHER VS. UNITED INDIA INSURANCE COMPANY LIMITED2. Further, the Tribunal has committed an error in allowing conversion of the petition from Section 166 into Section 163-A of the Act. The owner of the motorcycle has contested the petition but has failed to produce driving 2 (2009) 13 SCC 710 - 5 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 licence of the deceased to whom he has entrusted the motorcycle. Therefore, there is violation of conditions of policy, hence, the owner of the motorcycle alone is liable to pay compensation and the Insurance Company could not be responsible for paying compensation. 5. Further argued that though the Tribunal has dismissed the claim petition filed under Section 163-A of the Act, but committed an error in granting compensation by following principle of no fault liability under Section 143 of the Act, putting liability on the insurer of the motorcycle. Further submitted that when the deceased died due to his own rashness and negligence, therefore, the claimants are not entitled any compensation, hence, the appellant/Insurance Company is liable to be exonerated. Further submitted that an order of pay and recovery could be made. Therefore, prays to allow the appeal and set aside the liability fastened on the appellant/Insurance Company. - 6 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 6. The respondents/claimants though have served notice, are not represented through Advocate. 7. During the course of argument, when the Court has requested the learned counsel for the appellant/Insurance Company that why the appellate Court cannot exercise its power being appellate jurisdiction as per Order XLI Rule 33 of CPC, to give substantial justice for this, learned counsel for the appellant/Insurance Company submitted that under the peculiar facts and circumstances involved in the case, this Court being appellate jurisdiction cannot exercise its power under Order XLI Rule 33 of CPC. Therefore, submitted that this Court is not having authority under Order XLI Rule 33 of CPC to exercise its power. Hence, prays to allow the appeal by modifying liability to fasten on the owner of the motorcycle and exonerate the appellant/Insurance Company. - 7 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 8. Upon hearing the submissions by the learned counsel for the appellant/Insurance Company, the following points would arise for my consideration: i. Whether, under the facts and circumstances involved in the case, the appellant/Insurance Company is liable to be exonerated from paying compensation, since there is violation of conditions of policy as the deceased was not having driving licence to drive the motorcycle? ii. Whether under the peculiar facts and circumstances involved in the case, this Court is empowered to exercise its power under Order XLI Rule 33 of CPC for giving substantial justice for enhancing the quantum of compensation? iii. Whether, under the facts and circumstances involved in the case, in order to achieve substantial justice, an order of pay and recovery could be made as per the principle of law laid down by the Hon’ble Supreme Court in the cases of PAPPU AND OTHERS VS. VINOD KUMAR LAMBA AND ANOTHER; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS and also as per the judgment of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER? - 8 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 All points are interlinked to each other therefore, they are addressed by clubbing all the points and considered together in order to avoid repetition of facts and law. 9. Considering the facts pleaded by the claimants in the claim petition, on 15.08.2009 the deceased was riding the motorcycle and claimant No.1 being his wife and was pillion rider on the motorcycle and while both were proceeding so reached Uppal village and when they came near Karatagi-Gangavathi road at about 11.30 pm, due to sudden crossing of a buffalo, the deceased lost control over the motorcycle and the motorcycle hit the stone by the side of the road and deceased sustained grievous injuries on the head and succumbed to the injures on the spot and claimant No.1 being pillion rider had sustained injuries. 10. Claimant No.1 is wife and claimant No.2 is mother of the deceased. - 9 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 11. The claimants have filed claim petition under Section 163-A of the Act, 1988, but the Tribunal has dismissed the claim petition and has awarded compensation of Rs.50,000/- on the principle of no fault liability under Section 143 of the Act, 1988 by holding that the insurer and owner of the motorcycle are jointly and severally liable to pay compensation and in view of undisputed facts and existence of insurance policy as on the date of accident, the liability is put on the appellant/Insurance Company to pay compensation. This order is under challenge in this appeal. 12. Before the Tribunal, the appellant/Insurance Company has taken specific defence that the deceased was not holding driving licence. When this being the plea taken by the Insurance Company, then the onus shifts either on the claimants or on the owner to prove that the deceased was holding driving licence to ride the motorcycle. The owner of the motorcycle has contested the petition though has plea that the deceased was having - 10 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 driving licence, but he has not produced the driving licence. The claimants have also not produced driving licence. Therefore, inference could be drawn that the deceased was not having driving licence. Therefore, it is proved that the deceased was not having driving licence to ride the motorcycle. Hence, the Insurance Company has successfully established the fact that the deceased was not having licnece to ride the motorcycle. Therefore, the Insurance Company is liable to be exonerated from its liability. 13. The claim petition is filed under Section 163-A of the Act, but the Tribunal has dismissed the claim petition filed under Section 163-A of the Act, 1988 and awarded compensation under Section 143 of the Act, 1988 on no fault liability of Rs.50,000/-. There is no dispute as on the date of accident existence of insurance policy. The Insurance Company is seeking avoidance of its liability on the ground that the deceased was not having driving licence to ride the motorcycle, but whether dismissal of - 11 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 claim petition under Section 163-A of the Act, 1988 is correct or not is the question to be determined under the facts and circumstances involved in the case. 14. When the petition is filed under Section 163-A of the Act, 1988, the aspect of rash and negligence need not be pleaded and proved. The claim petition under Section 163-A of the Act, 1988 is based on no fault liability irrespective of the rash and negligence if the vehicle is involved in the accident. Then the owner and insurer are jointly and severally liable to pay compensation under structured formula basis. In this regard, I place reliance on the judgment of Hon’ble Supreme Court in the case of UNITED INDIA INSURANCE COMPANY LIMITED VS. SUNIL KUMAR AND ANOTHER3 (Sunil Kumar case). The judgment relied on by the counsel for the appellant/Insurance Company is not applicable in the present case due to subsequent full bench decision of the Hon’ble Apex Court in SUNIL KUMAR case (supra). 3 (2019) 12 SCC 398 - 12 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 Therefore, compensation is to be determined under Section 163-A of the Act, 1988 as it is maintainable. 15. Regarding grant of compensation under Section 163-A of the Act, 1988, the Hon’ble Supreme Court in the case of SUNIL KUMAR (supra), at paragraph Nos.5, 7 and 8 has held as follows: “5. In Deepal Girishbhai Soni v. United India Insurance Co. Ltd4. the issue before a three- Judge Bench of this Court was with regard to the mutual exclusiveness of the provisions of Section 163-A and Section 166 of the Act. While dealing with the said question, this Court had the occasion to go into the reasons and objects for the incorporation of Sections 140 and 163-A of the Act which came in by subsequent amendments, details of which are being noted separately hereinbelow. The Bench also took the view that while Section 140 of the Act deals with cases of interim compensation leaving it open for the claimant to agitate for final compensation by resort to the provisions of Section 166 of the Act, Section 163-A of the Act provides for award of final compensation on a structured formula following the provisions of the Second Schedule appended to the Act. Both sections i.e. Sections 140 and 163-A are based on the concpt of “no fault liability” and have been enacted as measures of social security. It was further noted that in a proceeding under Section 163-A of the Act, the Tribunal may be required to adjudicate upon various disputed questions like age, 4 (2004) 5 SCC 385 : 2004 SCC (Cri) 1623 - 13 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 income, etc. unlike in a proceeding under Section 140 of the Act. 7. As observed in Hansrajbhai V. Kodala5 one of the suggestions made by the Transport Development Council was “to provide adequate compensation to victims of road accidents without going into long-drawn procedure”. As a sequel to the recommendations made by the Committee and the Council, Section 140 was enacted in the present Act in place of Sections 92-A to 92-E of the old Act. Compensation payable thereunder, as under the repealed provisions, continued to be on the basis of no fault liability though at an enhanced rate which was further enhanced by subsequent amendments. Sections 140 and 141 of the present Act make it clear that compensation payable threunder does not forcelose the liability to pay or the right to receive compensation under any other provision of the Act or any other law in force except compensation awarded under Section 163-A of the Act. Compensation under Section 140 of the Act was thus understood to be in the nature of an interim payment pending the final award under Section 166 of the Act. Section 163-A, on the other hand, was introduced in the new Act for the first time to remedy the situation where determination of final compensation on fault basis under Section 166 of the Act was progressively getting protracted. The legislative intent and purpose was to provide for payment of final compensation to a class of claimants (whose income was below Rs.40,000 p.a.) on the basis of a structured formula without any reference to fault liability. In fact, in Hansrajbhai V. Kodala the Bench had occasion to observe that: (SCC pp. 188-89, para 15) 5 (2001) 5 SCC 175 : 2001 SCC (Cri) 857 - 14 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 8. From the above discussion, it is clear that grant of compensation under Section 163-A of the Act on the basis of the structured formula is in the nature of a final award and the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A(2). Though the aforesaid section of the Act does not specifically exclude possible defence of the insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the insurer and/or to understand the provisions of Section 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163-A of the Act, namely, final compensation within a limited time-frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability were taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention.” 16. When the claimants have not preferred appeal, then the next question that would come into consideration is under peculiar facts and circumstances involved in the case as the deceased was young man of 28 years old as - 15 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 on the date of accident died unfortunately in the accident, claimant No.1 has become widow at the young age of 24 years and claimant No.2 is old age mother. It is stated in the claim petition that the deceased was the only bread winner and earning member in the family and due to sudden death of the deceased, the life of the claimants had become miserable. When, claimant No.1 being wife of the deceased has become widow at the young age of 24 years and claimant No.2 is also widow as her husband was predeceased, as per the records and especially upon considering the claim petition both the claimants are residing in the village and are rustic women and illiterate. The claimants being widows are vulnerable as there are no other male members in the family. Therefore, they could not prefer the appeal against the impugned judgment and award. Considering the power of appellate Court to be exercised under Order XLI Rule 33 of CPC, this power must be exercised sparingly in order to achieve substantial cause. - 16 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 17. The case is to be considered and determined on substantial cause not to render the claimants, who are widows to throw away them in the streets as the provisions under Sections 166, 163-A and 140 of the Act, 1988 and other allied statutes/laws are beneficial legislatures. The technical hindrances shall not come in the way of giving substantial justice with this owed object, the legislature has empowered the appellate Court to give substantial justice by exercising power under Order XLI Rule 33 of CPC, though the claimants have not preferred appeal seeking enhancement. Therefore, the claimants are entitled for benefit of receiving substantial justice, therefore, under Order XLI Rule 33 of CPC, for awarding just and reasonable compensation as the claimants have already suffered trauma, mental agony, hardship and are leading miserable life in the village as they are widows. 18. Unfortunate event is that, in the accident, the deceased died and claimant No.1 being wife of the deceased has become widow at the young age of 24 years - 17 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 and claimant No.2 is also widow as her husband was predeceased, as per the records and especially upon considering the claim petition both the claimants are residing in the village and are rustic women and illiterate and the deceased was the only bread winner and earning member in the family and due to sudden death of the deceased, the life of the claimants had become miserable. However, it is found that the Tribunal was insensitive while considering the case and not awarding just and reasonable compensation. Therefore, though the claimants have not preferred appeal, but upon the appeal filed by Insurance Company, the claimants are entitled for benefit of invoking power under Order XLI Rule 33 of CPC for awarding just and reasonable compensation without remanding the case to the Tribunal for the reason that the claimants have already suffered much trauma and mental agony and once again, remanding to the Tribunal is not proper. Therefore, this Court finds this case is one of the exceptional case, where the appellate Court has to exercise power under - 18 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 Order XLI Rule 33 of CPC to give substantial justice to the claimants upon following principle of law laid-down by the Hon’ble Supreme Court in various decisions. This Court in very similar facts and circumstances in the case of NEW INDIA ASSURANCE CO. LTD., HUBLI vs. BASAPPA & OTHERS6 has invoked its power under Order XLI Rule 33 of CPC and at paragraph No.24 after following the various decisions of the Hon’ble Supreme Court under Order XLI Rule 33 of CPC, it is observed as follows: “24. In view of the law laid down by the Hon’ble Supreme Court and the Learned Division Bench of this Court this Court, in the decisions referred to supra, if it is clear from the judgment of the Tribunal that the Tribunal has committed a grave error resulting in the compensation awarded being grossly inadequate having regard to the law of award of compensation, in order to do justice, this Court should exercise discretionary power under Order 41 Rule 33 C.P.C. Thus, in may considered view, this is a fit case in which the exercise of powers under Order 41 Rule 33 C.P.C. is warranted. Hence, I deem it appropriate to enhance the compensation in favour of the claimants notwithstanding the fact that they have not preferred any appeal against the judgment and award of the Tribunal seeking such enhancement.” 6 ILR 2021 KAR 1101 - 19 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 17. The Court is cautious while exercising Order XLI Rule 33 of CPC that if remanding the case or directing the claimants to prefer any other appeal, then, under those circumstances also the same could have been the result. If this Court in this appeal exercises power under Order XLI Rule 33 CPC, then that would give substantial justice to the claimants without making the claimants to make roving walk once again agitating the proceedings. The claimants being wife and mother of the deceased have already suffered trauma and mental agony. Therefore, this Court inclines to exercise its power under Order XLI Rule 33 of CPC based on the principle of law laid down by the Hon’ble Supreme Court in the case of K. MUTHUSWAMI GOUNDER Vs. N. PALANIAPPA GOUNDER has observed as under: “12. Order 41 Rule 33 enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (i) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed an appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the - 20 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 court and the question raised properly arises (sic out of) one of the judgments of the lower court and in that event, the appellate court could consider any objection to any part of the order or decree of the court and set it right. We are fortified in this view by the decision of this Court in Mahant Dhangir v. Madan Mohan [1987 Supp SCC 528 : AIR 1988 SC 54]. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order 41 Rule 33 CPC and each case must depend upon its own facts. The Rule enables the appellate court to pass any order/decree which ought to have been passed.The general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily the appellate court must not vary or reverse a decree/order in favour of a party who has not preferred any appeal and this Rule holds good notwithstanding Order 41 Rule 33 CPC. However, in exceptional cases, the Rule enables the appellate court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal. The power though discretionary should not be declined to be exercised merely on the ground that the party has not filed any appeals.” (Emphasis supplied) The Hon'ble Supreme Court further in case of BANARSI Vs. RAMPHAL [(2003)9 SCC 606], interprets Order XLI Rule 33 of CPC: “15[Ed. : Para 15 corrected as per Official Corrigendum No. F.3/Ed.B.J./65/2003]. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The above said provisions confer power of the widest - 21 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject- matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The power is subject to at least three limitations : firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the - 22 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41. 16. Panna Lal v. State of Bombay [AIR 1963 SC 1516 : (1964) 1 SCR 980] so sets out the scope of Order 41 Rule 33 in the widest terms: The wide wording of Order 41 Rule 33 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 a 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 respondents as ‘the case may require’. If there was no impediment in law the High Court in appeal could, therefore, though allowing the appeal of the defendant-appellant by dismissing the plaintiff's suits against it, give the plaintiff-respondent a 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. The suit was filed by the plaintiff impleading the State Government and the Deputy Commissioner seeking recovery of compensation for the work done under a contract and the price of the goods supplied. The trial court held that the State was liable as - 23 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 it had beyond doubt benefited by the performance of the plaintiff. The suit was decreed against the State. The State preferred an appeal in the High Court. The plaintiff and other defendants including the Deputy Commissioner were impleaded as respondents. Disagreeing with the trial court, the High Court held that the contract entered into by the Deputy Commissioner was not binding on the State Government; that the Deputy Commissioner signed the contract at his own discretion; and further, that the contract not having been entered into in the form as required under Section 175(3) of the Government of India Act, 1935, was not enforceable against the State Government. The High Court also held that the Government could not be held to have ratified the action of the contract entered into by the Deputy Commissioner. The State was held also not to have benefited by the performance of the plaintiff. On this finding, the High Court set aside the trial court's decree passed against the State Government. In an appeal to this Court, the Constitution Bench held that it was a fit case for the exercise of jurisdiction under Order 41 Rule 33 CPC. On the findings arrived at by the High Court, while setting aside the decree against the State, the High Court should have passed a decree against the Deputy Commissioner. It was not necessary for the plaintiff to have filed any cross-objection and the Illustration appended to Order 41 Rule 33 was enough to find solution. 17. In Rameshwar Prasad v. Shambehari Lal Jagannath [AIR 1963 SC 1901 : (1964) 3 SCR 549] the three-Judge Bench speaking through Raghubar Dayal, J. observed that: “Rule 33 really provides as to what the appellate court can find the appellant entitled to. It empowers the appellate court to pass any decree and make any order which ought to have been passed or made in the proceedings before it and thus could have - 24 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 reference only to the nature of the decree or order insofar as it affects the rights of the appellant. It further empowers the appellate court to pass or make such further or other decree or order as the case may require. The court is thus given a wide discretion to pass such decrees and orders as the interests of justice demand. Such a power is to be exercised in exceptional cases when its non- exercise will lead to difficulties in the adjustment of rights of the various parties.” (emphasis supplied) 18. In Harihar Prasad Singh v. Balmiki Prasad Singh [(1975) 1 SCC 212] the following statement of law made by Venkatarama Aiyar, J. (as His Lordship then was) in the Division Bench decision in Venukuri Krishna Reddi v. Kota Ramireddi [AIR 1954 Mad 848 : (1954) 2 MLJ 559] was cited with approval which clearly brings out the wide scope of power contained in Rule 33 and the Illustration appended thereto, as also the limitations on such power : (SCC p. 236, para 36). “Though Order 41 Rule 33 confers wide and unlimited jurisdiction on courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well- defined principles in accordance with which that jurisdiction should be exercised. Normally, a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Order 41 Rule 33. But there are well-recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties. A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. A third class of - 25 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 cases is when the relief prayed for is single and indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory. This, however, is not an exhaustive enumeration of the class of cases in which courts could interfere under Order 41 Rule 33. Such an enumeration would neither be possible nor even desirable.” 19. In the words of J.C. Shah, J. speaking for a three-Judge Bench of this Court in Nirmala Bala Ghose v. Balai Chand Ghose [AIR 1965 SC 1874 : (1965) 3 SCR 550] the limitation on discretion operating as bounds of the width of power conferred by Rule 33 can be so formulated : (AIR p. 1884, para 22) “The rule is undoubtedly expressed in terms which are wide, but it has to be applied with discretion, and to cases where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so as to enable the court to adjust the rights of the parties. Where in an appeal the court reaches a conclusion which is inconsistent with the opinion of the court appealed from and in adjusting the right claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by Order 41 Rule 33 may properly be invoked. The rule however does not confer an unrestricted right to reopen decrees which have become final merely because the appellate court does not agree with the opinion of the court appealed from.” 20. A Division Bench decision of the Calcutta High Court in Jadunath - 26 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 Basak v. Mritunjoy Sett [AIR 1986 Cal 416 : (1986) 2 CHN 44] may be cited as an illustration. The plaintiff filed a suit for declaration that the defendant had no right or authority to run the workshop with machines in the suit premises and for permanent injunction restraining the defendant from running the workshop. The trial court granted a decree consisting of two reliefs: (i) the declaration as prayed for, and (ii) an injunction permanently restraining the defendant from running the workshop except with the terms of a valid permission and licence under Sections 436 and 437 of the Calcutta Municipal Act, 1951 from the Municipal Corporation. The defendant filed an appeal. The Division Bench held that in an appeal filed by the defendant, the plaintiff cannot challenge that part of the decree which granted conditional injunction without filing the cross-objection. The Division Bench drew a distinction between the respondent's right to challenge an adverse finding without filing any appeal or cross-objection and the respondent seeking to challenge a part of the decree itself without filing the cross-objection. The Division bench held that the latter was not permissible. We find ourselves in agreement with the view taken by the High Court of Calcutta.” In a later judgment, the Hon'ble Supreme Court in case of PRALHAD vs. STATE OF MAHARASHTRA3, has held as follows: “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 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” - 27 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 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.” 22. In terms of the statute and the judgments of the Apex Court as extracted hereinabove, this Court, in appropriate cases, can exercise its power and grant the relief that ought to have been granted by the Tribunal. 23. It is apposite to refer to a judgment of a Learned Division Bench of this Court, wherein this Court exercising power under Order XLI Rule 33 has enhanced the compensation in an appeal filed by the Insurance Company, in the absence of an appeal by the claimant, in the case of ORIENTAL INSURANCE CO. LTD. v. AKKAYAMMA4. 9. The Learned Counsel appearing for the respondent Nos. 1 to 6 who are the claimants in the court below contended that though the claimants have not filed any cross objections or independent appeal, since the tribunal has committed serious error of law and procedure, while computing the loss of dependency by not taking the gross salary as reflected in the salary certificate at Ex.P-8, and has erroneously, applied split multiplier method, this Court in exercise of its power under order 41 Rule 33 CPC should grant the relief which ought to have been granted by the tribunal, as in a claim arising under Motor Vehicles Act, the Tribunal is required to award just and reasonable compensation. 10. Order 41 Rules 33 of CPC reads as under: - 28 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 “Order XLI Rule 33. Power of court of Appeal. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross suite or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order. 11. The question as to what is the power of Appellants Court under Order 41 Rule33 of CPC and as to under what circumstances, the Appellant Court should exercise this discretionary power have come up for consideration both before the Apex Court and before this Court in several cases. 12. The leading case on this question is the decision of the Hon'ble Supreme Court in the case of Panna Lal v. State of Bombay [1963 SC 1516]. In this reported decision the Hon'ble Supreme Court, after referring to Rule 33 of Order 41 has stated thus in paras 12 and 14; “12. Even a bare reading of O. 41 R. 33 is sufficient to convince anyone that the wide wording, was intended to empower the appellate Court to make whatever order it - 29 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 thinks fit, not only as between the appellant and the respondent but also as between a 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 respondents as “the case may require In the present case, if there was no impediment in law the High Court could therefore, though allowing the appeal of the State by dismissing the plaintiffs suits against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the section make this position abundantly clear the illustration puts the position beyond argument. 14. The whole argument is based on the assumption that the plaintiff could by filing a cross-objection under O.41 R.22, C.P.C., have challenged the Trial Court’s decree in so far as it dismissed the suit against the defendants other than the State. We are not, at present advised, prepared to agree that if a party who could have filed a cross-objection under O.41 R.22 of the Code of Civil Procedure has not done so, the Appeal Court can under no circumstance give him relief under the provisions of O.41 R.33 of the Code. It is, however, not necessary for us to discuss the question further as, in our opinion, the assumption made by the High Court that the plaintiff could have filed a cross-objection is not justified.” In the case of Giani Ram v. Ramlal [(1969) 1 SCC 813 : AIR 1969 SC 1144.], the Supreme Court while explaining the meaning of expression “which ought to have been passed” occurring in Order 41 Ride 33 of CPC has held that the said expression mean “what ought in law to have been passed”. Following this observation, again the Apex Court in the case of Kosingh v. Smt. Deokabai [(1976) 1 SCC - 30 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 383 : AIR 1976 SC 634.] in paras 6 and 7 has observed thus: “6. In Giani Ram v. Rami Lal (1969) 3 SCR 944+ ((1969) 1 SCC 813 : AIR 1969 SC 1144) the court said that in O.41 R.33 the expression “which ought to have been passed” means “what ought in law to have been passed” and if an appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the Court below, it may pass or make such further or other decree or order as the justice of the case may require. 7. Therefore, we hold that even if the respondent did not file any appeal from the decree of the Trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge”. 13. A Learned Single Judge of this Court in the case of Smt. Kanthamma v. Nanjunda Devaru [AIR 1998 Kar 4271.] has followed the principles laid down by the Apex Court in the aforesaid cases. A division bench of this Court in the case of Patel Chandrappa v. Hanumanthappa [(1990) (3) KLJ 264.] has granted reliefs to certain parties who have not come up in appeal against the judgment of the Trial Court. The Division Bench in this reported decision has observed that having regard to the provisions contained in Rule 33 of Order 41 of CPC, it is the duty of the Court to grant relief to them if in law they are entitled to a share in the suit schedule property. 14. Again the Hon'ble Supreme Court in Delhi Electric Supply Undertaking v. Basanti Devi [(1999) 8 SCC 229 : AIR 2000 SC 43.] has considered the powers of Appellants Court under Order 41 Rule 33 of CPC. Relevant observations are found in para 18 and 19 which read thus: - 31 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 “18. This provision was explained by this Court in Mahant Dhangir v. Madan Mohan, 1987 Supp SCC 528 : (1987 Supp SCC 528 : AIR 1988 SC 54) in the following words (at P. 58 of AIR): “The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co- respondents. The appellate Court could pass any decree or order, which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words “as the case may required” used in Rule 33 of Order 41 have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. What then should be the constrain? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these: That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of the Judgment of the lower court. I these two requirements are there, the appellate court could considered any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal. It is true that the power of the appellate court under rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities. 19. Conditions as laid in provision of Order 41, Rule 33 are satisfied in the present case. When circumstances exist which necessitate the exercise of discretion conferred by Rule 33, the Court cannot be found wanting when it comes to exercise its powers”. (emphasis supplied)” - 32 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 18. Further, the Hon’ble Apex Court in the case of Sunil Kumar (supra) has observed at paragraph Nos.5 to 8 and 9 as under: “5. In Deepal Girishbhai Soni v. United India Insurance Co. Ltd. the issue before a three-Judge Bench of this Court was with regard to the mutual exclusiveness of the provisions of Section 163-A and Section 166 of the Act. While dealing with the said question, this Court had the occasion to go into the reasons and objects for the incorporation of Sections 140 and 163-A of the Act which came in by subsequent amendments, details of which are being noted separately hereinbelow. The Bench also took the view that while Section 140 of the Act deals with cases of interim compensation leaving it open for the claimant to agitate for final compensation by resort to the provisions of Section 166 of the Act, Section 163-A of the Act provides for award of final compensation on a structured formula following the provisions of the Second Schedule appended to the Act. Both sections i.e. Sections 140 and 163-A are based on the concept of “no fault liability” and have been enacted as measures of social security. It was further noted that in a proceeding under Section 163-A of the Act, the Tribunal may be required to adjudicate upon various disputed questions like age, income, etc. unlike in a proceeding under Section 140 of the Act. 6. Deepal Girishbhai Soni case, in fact, arose out of a reference made for a decision on the correctness of the view expressed in Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala that determination of compensation in a proceeding under Section 163-A of the Act is final and further proceedings under Section 166 of the Act are barred. The opinion rendered in Hansrajbhai V. Kodala contains an elaborate - 33 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 recapitulation of the reasons behind the enactment of Sections 92-A to 92-E of the old Act (i.e. the Motor Vehicles Act, 1939) (corresponding to Sections 140 to 144 of the present Act) introducing for the first time the concept of “no fault liability” in departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for death or permanent disablement caused on account of a motor vehicle accident. In the said report, there is a reference to the deliberations of the Committee constituted to review the provisions of the Motor Vehicles Act, 1988 and the suggestions of the Transport Development Council on the basis of which the draft Bill of 1994 was enacted, inter alia, to provide for: (h) increase in the amount of compensation to the victims of hit-and-run cases; (k) a new predetermined formula for payment of compensation to road accident victims on the basis of age/income, which is more liberal and rational.” 7. As observed in Hansrajbhai V. Kodala one of the suggestions made by the Transport Development Council was “to provide adequate compensation to victims of road accidents without going into long-drawn procedure”. As a sequel to the recommendations made by the Committee and the Council, Section 140 was enacted in the present Act in place of Sections 92-A to 92-E of the old Act. Compensation payable thereunder, as under the repealed provisions, continued to be on the basis of no fault liability though at an enhanced rate which was further enhanced by subsequent amendments. Sections 140 and 141 of the present Act make it clear that compensation payable thereunder does not foreclose the liability to pay or the right to receive compensation under any other provision of the - 34 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 Act or any other law in force except compensation awarded under Section 163-A of the Act. Compensation under Section 140 of the Act was thus understood to be in the nature of an interim payment pending the final award under Section 166 of the Act. Section 163-A, on the other hand, was introduced in the new Act for the first time to remedy the situation where determination of final compensation on fault basis under Section 166 of the Act was progressively getting protracted. The legislative intent and purpose was to provide for payment of final compensation to a class of claimants (whose income was below Rs 40,000 p.a.) on the basis of a structured formula without any reference to fault liability. In fact, in Hansrajbhai V. Kodala the Bench had occasion to observe that: “Compensation amount is paid without pleading or proof of fault, on the principle of social justice as a social security measure because of ever-increasing motor vehicle accidents in a fast-moving society. Further, the law before insertion of Section 163-A was giving limited benefit to the extent provided under Section 140 for no-fault liability and determination of compensation amount on fault liability was taking a long time. That mischief is sought to be remedied by introducing Section 163-A and the disease of delay is sought to be cured to a large extent by affording benefit to the victims on structured-formula basis. Further, if the question of determining compensation on fault liability is kept alive it would result in additional litigation and complications in case claimants fail to establish liability of the owner of the defaulting vehicles.” 8. From the above discussion, it is clear that grant of compensation under Section 163- A of the Act on the basis of the structured formula is in the nature of a final award and - 35 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 the adjudication thereunder is required to be made without any requirement of any proof of negligence of the driver/owner of the vehicle(s) involved in the accident. This is made explicit by Section 163-A(2). Though the aforesaid section of the Act does not specifically exclude a possible defence of the insurer based on the negligence of the claimant as contemplated by Section 140(4), to permit such defence to be introduced by the insurer and/or to understand the provisions of Section 163-A of the Act to be contemplating any such situation would go contrary to the very legislative object behind introduction of Section 163-A of the Act, namely, final compensation within a limited time-frame on the basis of the structured formula to overcome situations where the claims of compensation on the basis of fault liability were taking an unduly long time. In fact, to understand Section 163-A of the Act to permit the insurer to raise the defence of negligence would be to bring a proceeding under Section 163-A of the Act on a par with the proceeding under Section 166 of the Act which would not only be self-contradictory but also defeat the very legislative intention. 9. For the aforesaid reasons, we answer the question arising by holding that in a proceeding under Section 163-A of the Act, it is not open for the insurer to raise any defence of negligence on the part of the victim.” 19. Since the claim petition is filed under Section 163-A of the Act, 1988, the compensation is to be determined on the principle of no fault of liability and on the structured formula basis. Therefore, dismissal of the - 36 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 claim petition filed under Section 163-A of the Act, 1988 is hereby set aside. Hence, the claimants are entitled for compensation under Section 163-A of the Act, 1988 on the structured formula basis. The deceased was 28 years old at the time of accident, hence, as per schedule-II of the Act, 1988, the appropriate multiplier is ‘17’ and fixed annual income would be Rs.40,000/- and 1/3rd amount is to be deducted towards personal and living expenses. Hence, the compensation is to determined as follows: Rs.40,000/- x 2/3rd x 17 = Rs.4,53,335/- 20. Therefore, the claimants are entitled compensation of Rs.4,53,335/- as determined above with interest at the rate of 6% p.a. from the date of petition till the date of realization. 21. There was no dispute regarding existence of insurance policy as on the date of accident, but as held above the deceased was not having driving licence to ride the motorcycle. Therefore, breach of conditions of policy is - 37 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 proved. Hence, as discussed above, as per the principle of law laid down by the Hon’ble Supreme Court and this Court, the claimants are entitled for compensation under the principle of pay and recovery. REGARDING PAY AND RECOVERY: 22. The Insurance Company is able to establish the defence as per sub-section (2) of section 149 of yh Act, 1988. However, the claimants are third party to the vehicle. Hence as per sub-section (1), (5) and (7) of section 149 of the Act, 1988, and also as per the principle of law laid down by the Hon’ble Supreme Court in the cases of PAPPU AND OTHERS VS. VINOD KUMAR LAMBA AND ANOTHER7; NATIONAL INSURANCE COMPANY LIMITED VS. SWARAN SINGH AND OTHERS8; and also as per the Full Bench decision of this Court in the case of NEW INDIA ASSURANCE COMPANY LIMITED VS. YELLAVVA AND ANOTHER9, 7 (2018) 3 SCC 208 8 (2004) 3 SCC 297 9 2020 ACJ 2560 - 38 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 the Insurance Company shall satisfy the claim at the first instance to the claimants and then recover it from the owner of the motorcycle. However, the Insurance Company is at liberty to file execution petition before the jurisdictional executing Court as against the owner of the motorcycle and may seek attachment of movables or immovable properties or both, till recovery is made and also the recovery process can be as per the decision of the Hon’ble Supreme Court in ORIENTAL INSURANCE CO. LTD., VS. NANJAPPAN AND OTHERS10 (Nanjappan case). 23. Therefore, the appellant/Insurance Company is directed to pay compensation to the claimants at first instance and then recover it from the owner of the motorcycle. Accordingly, an order of pay and recovery is made. 10 2004 AIR SCW 952 - 39 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 24. Learned counsel for the appellant/Insurance Company submitted in all fairness that claimant No.1 has become widow at the young of 24 years and she has remarried. When this being the fact, when claimant No.1 has remarried, then claimant No.2 being old age mother alone is entitled for compensation as determined above. Accordingly, I answer point Nos.(i) to (iii) in the Affirmative. 25. In the result, I proceed to pass the following: ORDER i. The appeal filed by the Insurance Company is dismissed. ii. By exercising power under Order XLI Rule 33 of CPC, the judgment and award dated 22.02.2012 passed in MVC No.290/2006 on the file of Senior Civil Judge and MACT, Gangavathi is modified holding that claimant No.2 being mother of the deceased alone is entitled compensation of Rs.4,53,335/- along with interest at the - 40 - HC-KAR NC: 2025:KHC-D:8973 MFA No. 22660 of 2012 rate of 6% p.a. from the date of petition till its realization. iii. The appellant/Insurance Company shall deposit/pay the compensation at first instance to claimant No.2, then recover it from the owner of the motorcycle by following the principle of law laid by the Hon’ble Supreme Court in the case of NINJAPPAN CASE (supra). iv. Registry is directed to send back the Trial Court records along with a copy of this judgment to the Tribunal. v. No order as to costs. vi. Draw modified award accordingly. In view of disposal of the appeal, pending IAs’ if any shall stand disposed of. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE SRA CT:BCK LIST NO.: 1 SL NO.: 48