SATYA PRAKASH DWIVEDI versus MUNNA ALIAS CHANDRABHAN YADAV AND OTHERS

Citation: [2021] 9 S.C.R. 259 · Decided: 17-09-2021 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Case Allowed

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Judgment (excerpt)

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SATYA PRAKASH DWIVEDI
v.
MUNNA ALIAS CHANDRABHAN YADAV AND OTHERS
(Civil Appeal No. 5926 of 2021)
SEPTEMBER 17, 2021
[DR DHANANJAYA Y CHANDRACHUD AND
B V NAGARATHNA, JJ.]
Code of Civil Procedure, 1908 – Or.XLI r.33 – Power of Court
of Appeal – Appellant-claimant met with an accident and sustained
grievous injuries – Appellant filed claim petition – Tribunal passed
the judgment and order awarding compensation of Rs.5,42,633/-
along with interest by accepting the permanent disability to the extent
of 50% to that particular part of the body – However, the High
Court construed functional disability at the rate of 20% rather than
50% as assessed by the Tribunal and reduced the overall
compensation from Rs.5,42,633/- to Rs.3,26,833/- – On appeal, held:
Or.XLI r.33 does not confer unrestricted rights to interfere with
decrees which are not assailed merely because the appellate court
does not agree with the opinion of the court appealed from – The
Appellate Court must apply its judicial mind – A judgment on merits
should not be lightly interfered with or reversed purely on technical
grounds unless it has resulted in failure of justice – The High Court
could not have reduced the percentage of functional disability from
50% to 20% when there was no challenge to the said finding arrived
at by the Tribunal by an appeal or cross objection filed by the
Insurance company and in the absence of recording justifiable
reasons for doing so – The High Court was not right in its approach
in the matter for another reason that the Insurance company had
not filed any appeal seeking a reduction in the compensation amount
awarded by the Tribunal – Thus, the High Court was not justified in
exercising its power u/Or. XLI r.33 of the CPC in the instant case
and reducing the compensation from Rs.5,42,633/- as awarded by
the Tribunal to Rs.3,26,833/- i.e. a total reduction of Rs.2,15,800/-
in the compensation amount – Thus, the impugned judgment of the
High Court is set aside and the compensation amount of Rs.5,42,633/
- awarded by the Tribunal is restored.
[2021] 9 S.C.R. 259
259
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
Allowing the appeal, the Court
HELD: 1. Upon a plain reading of Order XLI Rule 33 of
the CPC, it reveals that the Appellate Court has the power to
pass any decree or order which ought to have been passed, and
to pass such other decree or order as the case may require.
Notwithstanding that the appeal is against a part of the decree,
this power may be exercised by the court in favour of all or any of
the respondents although such respondent may not have filed
any appeal or objection. However, the said power must be
exercised with caution or circumspection, particularly, in the
absence there being any cross objection or appeal filed by the
respondents. Such a power has to be exercised in exceptional
cases when its non-exercise will lead to difficulties in the
adjustment of rights of the parties. [Para 13][265-C-E]
2. The Order XLI Rule 33 does not confer unrestricted
rights to interfere with decrees which are not assailed merely
because the appellate court does not agree with the opinion of
the court appealed from. It is the duty of the appellate court to
decide the appeal in accordance with law. The appellate court
must apply its judicial mind to the evidence as a whole while
deciding a case and a judgment on merits should not be lightly
interfered with or reversed purely on technical grounds unless it
has resulted in failure of justice. [Para 14][265-E-G]
3. In the instant case, although the High Court has placed
reliance on the judgment of this Court in Raj Kumar vs. Ajay
Kumar – (2011) 1 SCC 343, in view of this Court it could not
have reduced the percentage of functional disability from 50% to
20% when there was no challenge to the said finding arrived at
by the Tribunal by an appeal or cross objection filed by the
Insurance Company and in the absence of recording justifiable
reasons for doing so. The injured appellant-claimant had filed
the appeal seeking enhancement in the quantum of compensation
by contending that he had suffered 70% disability to the particular
parts of his body but the Tribunal had overlooked the same and
had assessed disability only at the rate of 50%. Instead of
considering that contention on merits, the High Court ignored
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the same and instead gave weightage to the contentions of the
respondent-Insurance Company which was to the effect that the
compu

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