B.K. Patra, J.

1. The Appellant is the insurer of a truck bearing No. ORS 54 which was involved in an accident as a result of which Rahamatulla the driver of the truck died at the spot on 21.3.1962. Respondent No. 1 is the widow, Respondent No. 2 is the mother, Respondent No. 3 is the son and Respondents 4 and 5 are the daugthers of the deceased driver and they filed an application under Section 110A of the Motor Vehicles Act before the Motor Accidents Claims Tribunal, Sambalpur claiming compensation of Rs. 60,000/. from Harbansalal and Shankarlal (Respondents 6 and 7 respectively) who were the employers of the deceased driver, the Oriental Fire and General Insurance Company, Ltd. with which the truck was insured and the Governor of Orissa who is the owner of the State Transport Bus bearing No. ORS 2838 the driver of which by his negligence caused the accident which resulted in the death of Rahmatulla on 21.3.1962 while the truck ORS 54 loaded with timber was standing stationary on the left side of the road facing towards Sambalpur, the State Transport Bus ORS 2838 which was coming from the direction of Sambalpur collided with the truck in consequence of which Rahmattulla who was sitting on the driverss seat of the truck died on the spot and the truck was damaged. It was alleged that the accident took place because the driver of the bus was guilty of rash and negligent driving.

2. In the written statement filed by the State of Orissa, the allegation that the driver of the bus was guilty of rash and negligent driving was denied and it was contended that the deceased driver was guilty of contributory negligence. Regarding the compensation claimed it was said that the claimants could not claim more than what they were entitled to under the Workmens Compensation Act.

3. The Two owners of the truck and the Insurance Company in the written statement filed by them supported the claimants case that the accident took place due to the negligent driving of the bus by its driver Balakrushna Mohapatra. They also admitted that the deceased driver was in receipt of monthly wages of Rs. 250/- but contended that the claimets are entitled only to the amount of Rs. 4000/- which is provided for under the Workmans Compensation Act and that no liability over and above this amount can be fixed on these Defendants.

4. Two witnesses were examined on behalf of the claimants P.W. 2 stated that he was coming just behind the truck in a separate vehicle and according to him the truck was standing stationary on the extreme left on the kutcha portion of the road when the bus coming from the opposite direction dashed against it. P. W. 1 is the Motor Vehicle Inspector who after examining the place of occurrence and the two vehicles involved in the accident had submitted his report Ext. 1. He found that the truck was on its extreme left facing Sambalpur and its left wheels were on the earthen portion of the road. But he opined basing on his observations that the impact took place while the truck was also in motion. O.P.W. 1 who was the only witness examined on the other side is Balakrushna Mohapatra, the driver of the State Transport Bus ORS 2838. He stated that on 21.3.1962, he was driving the bus from Sambalpur to Meramundali and that after the twenty-sixth mile from Sambalpur, he heard a "Khut" sound and the bus went out of control and moved to the right side. He then applied the brake but it did not work and consequently there was a collision between the bus and the truck which was coming from the opposite direction. He admitted that the truck was on its left side and that the width of the road at that place is such that two heavy vehicles can pass. The spot map Ext. 2 shows that the road at the place where the occurrence took place is a straight one. Significantly, there is no mention in the written statement filed by the State of Orissa that just before the accident took place, the bus either developed some mechanical trouble or that the brakes became ineffective. There is no evidence on record to show that the brake of the bus was defective and Ext.2 the report of the Motor Vehicle Inspector is absolutely silent on this point.

5. Having regard to the evidence on record the Tribunal came to the conclusion that the collision took place due to negligence of the driver of the State Transport Bus and that the driver of the truck was not guilty of any contributory negligence. Regarding the claim of compensation, the Tribunal accepted the claimants case that the deceased driver was in receipt of monthly salary of Rs. 250/- and that he was 30 years old when the accident took place. P.W. 2 has stated that out of the monthly salary of Rs. 250/- the deceased driver was spending Rs. 100/- for himself and was sending the balance of Rs. 150/- to the members of his family who were residing at Allahabad. Accordingly, the Tribunal found that due to the death of the driver, the net monthly loss in terms of earnings which his family sustained was Rs. 150/-. On the basis that the driver would have lived for 25 years more, the net loss to the family was calculated to be Rs. 45,000/-, The Tribunal, however, awarded Rs. 25000/-as compensation to the applicants, and directed that out of this amount. Rs. 8000/- should be paid by the the two owners of the truck and the Insurance Company and the balance of Rs. 17000/- by the State of Orissa. He also apportioned that out of the compensation amount, the wife of the deceased was to get l/8th, the mother l/6th, the son 17/36th and the two daughters 17/144th share.

6. Being aggrieved by this decision, the Insurance Company has filed the appeal contending that the compensation of Rs. 25000/- fixed as payable to the claimants is high and excessive and that in any case the liability of the Insurance Company cannot be more than Rs. 4000/-, as provided in Schedule IV of the Workmens Compensation Act as it stood before it was amended by Act 64 of 1962 which came into force on 13.1963.

7. On receipt of the notice of appeal, Respondent No. 8, the Governor of Orissa filed a memorandum of cross objections raising several pleas and contending that the deceased driver was guilty of contributory negligence and that the total amount of compensation decreed in favour of the claimants is also high and excessive, and praying that the Award of Rs. 17000/-passed against the Governor of Orissa being unjustified should be set aside.

8. The finding of the Tribunal that the accident which resulted in the death of the driver of the truck was the result of negligence of the driver of the State Transport bus appears to me to be unassailable. There is abundant evidence on record and it is also admitted by the bus driver O.P.W. 1 who was the only witness examined on the side of the opposite parties that when the accident took place, the truck was on its extreme left side. It was also admitted by O.P.W. 1 that his bus which was coming from the opposite direction, moved to its right side and knocked against the truck. He, however, contended that this was not due to his rash and negligent driving but because just at that point, the bus developed some mechanical trouble which was responsible for the bus moving to its right. This plea, however, was not substantiated. Such a plea does not appear to have been put forward when the Motor Vehicle Inspector made an enquiry at the spot because there is absolutely no mention about any such defect in the report submitted by the Motor Vehicle Inspector. In these circumstances, the conclusion is inevitable that the accident was brought about by the rash and negligent driving of the bus by O.P.W.1.

9. As already indicated, the Tribunal held that the applicants (Respondents 1 to 5) are entitled to get Rs. 25900/- as compensation from the Appellant and Respondents 6 to 8 and that out of this amount of Rs. 25000/-, the Appellant and Respondents 6 and 7 should pay Rs. 8000/- to the claimants and the balance of Rs. 17000/- should be paid to them by the State of Orissa Respondent No. 8. The Appellant and Respondents 6 and 7 were held liable to pay Rs. 8000/-on the basis of Schedule IV of the Workmens Compensation (Amendment) Act, 1962. Section 3 of the Workmens Compensation Act provides that if a personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter II. As admittedly, the deceased Rahamatulla was employed under Respondents 6 and 7 Harbans Lal and Shankar Lal, and his death was caused by an accident arising out of and in the course of his employment, there can be no doubt that Respondents 6 and 7 are liable to pay to the driver compensation payable under the Workmens Compensation Act. The amount of compensation payable is provided for in Section 4 which says inter alia that where death results from the injury and the deceased workman is in receipt of monthly wages falling within limits shown in the first column of Schedule IV, the compensation payable shall be the amount shown against such limits in the second column thereof. Under Schedule IV, as it stood before its amendment by Act 64 of 1962 which came into force on 1.3.1963, compensation payable in respect of the death of any employee who was in receipt of monthly emoluments of not less than Rs. 200/- and not more than Rs. 300/-, was Rs. 4000/-. It is not disputed that Rahamatulla was in receipt of monthly emoluments of Rs. 250/- and consequently under Schedule IV as it stood before the amendment, his heirs were entitled to receive Rs. 4000/- as compensation under the Workmens Compensation Act.

10. It is not disputed that the truck ORS 54 had been insured with the Appellant company. Chapter VIII of the Motor Vehicles Act, 1939 deals with insurance of motor vehicles against third party risks. Section 95 which occurs in that chapter in so far as is material reads thus:

95. (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which:

(a) * * *

(b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place:

Provided that a policy shall not be required

(i) to cover liability in respect of the death, arising out of and in the course of his employment of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to, any such employee

(a) engaged in driving the vehicle, or

**

(2) Subject to the proviso to Sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely:

(a) when: the vehicle is a goods vehicle, a limit of twenty thousand rupees in all, including the liabilities, if any, arising under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle;

* * *

Although the policy of insurance has not been exhibited in this case, there cannot be any doubt having regard to the provisions of Section 95 that in the said policy the insurer company must have undertaken the liability referred to in the section material portions of which have been quoted above. It follows consequently that the Appellant company is liable to pay to the heirs of the deceased the amount which the insured, Tamely, Respondents 6 and 7 are bound to-pay to the heirs in terms of Schedule IV of the Workmens Compensation Act.

11. Admittedly, by the time the Tribunal passed its award, Schedule IV had been amended. Under the amended schedule, the amount of compensation payable in case of death of one who was in receipt of monthly emoluments of not less than Rs. 200/- and not more than Rs. 300/-, is Rs. 8000/-. It is this amount of Rs. 8000/- which is saddled on the Appellant company, obviously on the ground that this schedule as amended is applicable. It is contended or behalf of the Appellant that the schedule which was in force on the date of the death of the driver would govern the case and not the schedule in force on the date on which the compensation was awarded. The normal rule of construction of statutes is that its operation is prospective unless it is made retrospective either expressly or by necessary implication. The rights and liabilities under the Workmens Compensation Act get crystalised on the date of death of the workman and the making of the application is only a procedural matter. On the date of death of the deceased, the unamended schedule was in force and under that schedule, the driver was entitled only to Rs. 4000/-. There is nothing in the amendment Act which makes the amended provision retrospective. The Appellant is, therefore, correct in its contention that under the Workmens Compensation Act, its liability, if any, is limited only to Rs. 4000/-.

12. It was next argued on behalf of the Appellant that even assuming that the insurance company is liable to pay compensation under the Workmens Compensation Act. the Claims Tribunal under the Motor Vehicles Act has no jurisdiction to pass an award against the insurance company and that only in proceedings before the Commissioner under the Workmens Compensation Act such an award can be made and that once proceedings have been initiated under the Motor Vehicles Act before the Claims Tribunal, not only the remedy under the Workmens Compensation Act but also the liability to enforce it has been lost and consequently the insurance company is no longer liable in this behalf. The Workmens Compensation Act which is a special enactment, intended to provide for payment by certain classes of employers to their workmen of compensation for injury by accident, prescribes a special forum and a special procedure and it entitles only a special class of dependants to claim compensation under the Act. Clause (5) of Section 3 of the Workmens Compensation Act gives an option to the claimants to choose either the forum prescribed under the Workmens Compensation Act or the Civil Court, and once the claimants elect either forum, they would be precluded under that clause from resorting to the other forum. There is nothing in Section 3 of the Workmens Compensation Act to indicate that the liability of the insurance company to indemnify the employer against compensation payable to the employee under that Act would be lost the moment the claimants or the employees in exercise of their option resort to the Civil Court or the Claims Tribunal, which under Section 110F of the Motor Vehicles Act, has substituted the Civil Court in the matter of adjudicating upon any question which may be adjudicated by the Claims Tribunal under the Motor Vehicles Act. It is also not shown that there is anything in the insurance policy which says that the insurance company would be liable to the insured only if proceedings are instituted under the Workmens Compensation Act and an award is made thereunder. Section 95 of the Motor Vehicles Act in consonance with which the insurance policy is to be moulded provides that the insurance company should undertake to indemnify the insured in so far as it is necessary to meet the requirements of Section 95 of the Motor Vehicles Act in relation to the liability under the Workmens Compensation Act. The limitation is with reference to the quantum of the liability under the Workmens Compensation Act, and not with reference to the forum in which the liability is to be quantified. If proceedings were instituted before the Claims Tribunal and the claimants succeed in proving negligence, they may get a far larger amount by way of compensation than the amount payable under the Workmens Compensation Act. In such a case, the liability of the insurance company would be limited only to the amount payable under the Workmens Compensation Act and the balance amount would in that case be payable by the person through whose negligence the death has occurred. Such being the circumstances, it is not open to the insurance company to plead non-liability mainly on the ground that the proceedings have been initiated in this case under the Motor Vehicles Act. I am fortified in this view by a decision of the, Madras High Court in Venkataraman v. Abdul Munaf Sahib 1971 A.C.J. 77. It, therefore, follows that the Appellant insurance company cannot avoid the liability altogether but that its liability is limited only to Rs. 4000/-. To that extent, the appeal preferred by the insurance company has to be allowed.

13. I would now take up the memorandum of cross objections filed by the State of Orissa in which it is contended that the total amount of compensation allowed is high and excessive. The basis on which the Tribunal fixed the compensation is indicated in para 5 above. The deceased driver was receiving a salary of Rs. 250/- per month and there is evidence to show that he was spending Rs. 100/- per month for himself and sending the balance of Rs. 150/- for the maintenance of his family members at Allahabad. The Tribunal held that by the death of the driver, the claimants who are his dependants sustained a monetary loss of Rs. 150/- per month. The Tribunal further assumed that the driver who was 30 years old at the time of his death would have lived for 25 years more. On that basis, the total monetary loss which the dependants of the deceased driver would sustain would be Rs. 45000/-. But the Tribunal awarded a total compensation of Rs. 25000/- to the claimants. It is argued on behalf of the State that in fixing the compensation, the Tribunal has not taken into consideration the several contingencies which would have affected the earning capacity of the deceased driver and that the Tribunal has also failed to keep in view the fact that a lump sum amount was being paid to the claimants. My attention was particularly drawn to what the Tribunal stated in para 18 of its award, justifying the grant of compensation of Rs. 25,000/- that if the said amount is deposited in a Bank on fixed deposit basis, it would fetch interest of about Rs. 150/-per month and the claimants would thereby get what they were getting from the deceased driver towards their maintenance per month. It is argued that on this basis the claimants would get perpetually per month what they were receiving towards maintenance from the deceased driver leaving the principal amount of Rs. 25,000/-intact and that this makes the compensation awarded high and excessive. At the same time, the Tribunal has not also taken into consideration the fact that as time would have passed on, the earning capacity of the deceased might have also increased resulting in the dependants getting more towards their monthly maintenance than what they were receiving at the time of the death of the driver. It is well established that unless there are compelling reasons, the appellate Court should not interfere with the compensation awarded by the Claims Tribunal. Far from there being any compelling reasons, I find that if the Tribunal has at all erred in fixing the compensation it is on the conservative side. In Union of India and Anr. v. Viranwali 1967 A.C.J. 41 a Bench of the Delhi High Court awarded Rs. 45,000/- as compensation to a cooly earning Rs. 150/-per month who died as a result of a fatal accident at the age of 30 years. A Bench of the Allahabad High Court in Shiv Prasad Gupta v. S.M. Sabir Zaidi 1967 A.C.J. 321 while awarding compensation proceeded on the basis that the average span of life in India is 70 years. This basis was also adopted by the Punjab High Court in Jaswant Kaur and Ors. v. Ratti Ram and Ors. 1971 A.C.J. 31 where the compensation awarded was Rs. 94,400/- in the case of an S.D.O. who was in receipt of monthly emoluments of Rs 675/- and as the result of a fatal accident died at the age of 44 years. In H.V. Transport and Ors. v. Basiram Bibi 1971 A.C.J. 458 a Bench of the Gujarat High Court awarded compensation of Rs. 45,975/-to the dependants of a person who died as the result of a fatal accident in his 45th year and whose earnings per year were Rs. 4,500/-. In ascertaining pecuniary loss caused to the dependants on the death of the deceased, It must be borne in mind that the damages are not to be given as solatium but that they should be calculated with reference to a reasonable expectation of pecuniary benefit from the continuance of the life of the deceased. Judged in the light of these decisions, the pecuniary loss caused to the dependants of the deceased in the present case has been calculated at Rs. 45,000/-. The Tribunal, therefore, in awarding Rs. 25,000/- as compensation to the claimants cannot at all be said to have committed an error and there is absolutely no justification to interfere with the quantum. The cross objections filed by the State of Orissa must therefore be dismissed.

14. The question then arises whether in view of my finding that the Appellant company who under the orders of the Tribunal has been saddled with a liability of Rs. 8000/- is not liable to pay more than Rs. 4,000/-, the claimants should lose the balance of Rs. 4,000/- or whether it is permissible to saddle the State of Orissa with this extra liability of Rs. 4,000/-. The answer to the question depends upon the correct interpretation of Rule 33 of Order 1, Code of Civil Procedure which reads as follows:

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:

Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.

Relying on the wide wording of the above rule, it is urged on behalf of the claimant-Respondents that they preferred a claim for compensation against the Appellant and the other Respondents and the Court held that they are entitled to a total sum of Rs. 25,000/-. Having so determined the amount, the Court apportioned it between the Appellant company and the State of Orissa. If, for any reason, the Court considers that the Appellant company is not liable to pay Rs. 8,000/-, as ordered by the Tribunal, but is liable to pay Rs. 4,000/-only the claimants should not suffer on that account because in their original application they never prayed for any apportionment, and it is therefore only fair and equitable that the State of Orissa should be saddled with this extra liability. In support of this contention, they rely particularly on the illustration to the rule. The counter argument advanced on behalf of the Slate is that as the claimants were satisfied by the apportionment made by the Tribunal and they neither filed any independent appeal nor a memo of cross objections objecting to the manner of apportionment, they should suffer if this Court reduces the liability of the Appellant company, and that in the circumstances, the Court has no power to saddle one of the Respondents, namely, the State of Orissa with the extra liability. Having regard to the language of the rule it appears to me that it is not a case where the Court has no jurisdiction to interfere under Rule 33 of Order 41, but the question is whether it should exercise its jurisdiction. Although Rule 33 confers wide and unlimited jurisdiction on Courts to pass a decree in favour of a party who has not even preferred an appeal, there are 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. But there are well recognised exceptions to this rule. One such exception is where as a result of interference in favour of the Appellant it becomes necessary to re-adjust the rights of other parties. Another class of cases in which this rule is to be applied is when the relief prayed for is single and indivisible, but, as in the present case, is claimed against a number of Defendants These are cases in which it is legitimate to exercise the power under the rule although there is no appeal relating to the subject matter. In Hari Sankar v. Anath Nath 1949 F.C.R. 106 the dispute related to the apportionment of a certain amount of compensation as between the proprietors of a land and their lessees. Against the award of compensation, some of the proprietors filed an appeal impleading as Respondents the lessees and the other proprietors. The appellate Court allowed the appeal and modified its order only in favour of the Appellants. On appeal it was held by the Federal Court that even the non-appearing proprietors who figured as Respondents should also have been granted relief under Rule 33 of Order 41, Code of Civil Procedure Code. In Panna Lal v. State of Bombay : A.I.R. 1963 S.C. 1516, the Plaintiff filed a suit claiming relief in the alternative against A or B. The suit was decreed against A, but dismissed against B. A preferred an appeal and that was allowed. B was Respondent in that appeal, but the Court declined to consider the claim against him as the Plaintiff had not filed any cross-objections. It was held by the Supreme Court that both on the language of this rule and the illustration, the Court had ample power to pass a decree against B. Their Lordships in allowing the relief to the Plaintiff as against B stated thus:

Even a bare reading of Order 41, Rule 33 is sufficient to convince any one that the wide wording was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the Appellant and 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 suit 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.

The present case is fully covered by the Federal Court and Supreme Court decisions referred to above. To repeat what has already been stated, the claimants were held entitled to a total compensation of Rs. 25,000/-. They did not pray for any specific apportionment as between the Appellant and the other Respondents. It is the Tribunal which stated:

Accordingly, out of Rs. 25,000/-, Harbansalal and Shankarlal, the owners of the truck, and the Oriental Fire & General Insurance Company, Limited should pay Rs. 8,000/- as compensation to the claimants. The balance of Rs. 17,000/- shall be paid by the State of Orissa as compensation to the claimants.

It is, therefore, clear from the order that the chimantis are entitled to a sum of Rs. 25,000/-, no matter how it is apportioned. I have no manner of doubt in my mind that if the Tribunal had been appraised of the correct position of law so far as the liability of the insurance company is concerned, it would have while making the company liable for Rs. 4,000/, saddled the State of Orissa with the balance of Rs. 21,000/-. So long as the claimants got Rs. 25,000/- in full, they were not interested as to who would pay this amount to them and consequently they had no occasion either to file an independent appeal against the order of the Tribunal or to file a memo of cross objections, under no circumstances, therefore can the claimants be deprived of any portion of the compensation. Now that the liability of the Appellant is reduced, there should be a corresponding increase in the liability of the State of Orissa.

15. In the result, the appeal filed by the Insurance Company is partly allowed and the memorandum of cross-objections filed by the State of Orissa is dismissed. The order of the Tribunal that Respondents 1 to 5 are entitled to a total compensation of Rs. 25,000/- is upheld. But in modification of the apportionment made by the Tribunal it is ordered that out of this amount of Rs. 25,000/- the Appellant company is to pay Rs. 4,000/- to the claimants and the balance of Rs. 21,000/- should be paid to the claimants by Respondent No. 8 the State of Orissa. The apportionment of the compensation as between the claimants inter se as ordered by the Tribunal shall stand. In the circumstances, the parties shall bear their own costs in this appeal.