Jharkhand High Court
The New India Assurance Company Ltd. vs Jyotilal Mahato And Anr. on 24 April, 2003
Equivalent citations: 2004ACJ1935, [2003(3)JCR75(JHR)]
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
ORDER
1. Jyotilal Mahato son of Jagarnath Mahato, a resident of Saraidhela, Mahato Colony, Dhanbad sustained injuries in a motor accident on 2.2.1995. On an application under Section 166 of the Motor Vehicles Act, 1988 (hereinafter to be referred to as 'the Act'), Title (M.V.) Suit No. 84 of 1995 was registered before the Motor Vehicle Accident Claims Tribunal, Dhanbad. In the said proceeding the Tribunal assessed total amount of Rs. 98,416/- payable as compensation Lo him.
2. The Insurer of the truck (UMU 4691) involved in the accident has filed the present Appeal under Section 173 of the Act, challenging direction of the Tribunal to the Insurance Company to indemnify owner's liability for payment of compensation.
3. According to the Insurance Company, the driver of the truck had a forged and fake driving license and as such the Insurance Company was not liable to pay the compensation amount. This fact was neither pleaded nor supported by evidence by the Insurance Company before the Tribunal.
4. Mr. D.C. Ghose, counsel for the appellant submitted that during pendency of the claim case, the Insurance Company has appointed Investigator, who has submitted his report on the basis of the facts ascertained regarding the driving license in question from the office of the District Transport Officer, Cuttack. In this regard a certificate was also issued by the said office, but the Tribunal did not consider those papers filed by the Insurance Company.
5. The said Investigator was not examined and, therefore, his report was not proved. The Insurance Company also could not prove the certificate said to be issued by the District Transport Officer, Cuttack by examining any body from that office. Those papers, therefore, could not be marked as Exhibits. In such circumstance, there was no occasion for the Tribunal to consider the allegation of the Insurance Company regarding the forged driving license. We are also not in a position to consider those papers in absence of any pleading or proper proof in support thereof. The tribunal also rightly did not consider them. We, therefore, find no substance in the submission of Mr. Ghose. There is no merit in this Appeal.
6. I.A.No. 838 of 2000 (R) was filed in this Appeal by the claimant respondent No. 1 by way of cross-objection under Order XLI, Rule 22 of the Code of Civil Procedure for enhancement of the compensation amount. It is well settled that liability of the Insurer is only to indemnify the insured by paying to the claimant the amount of award obtained by him as if he was the judgment debtor. The liability is only to pay such sum as is adjudged payable by the insured, i.e. owner of the vehicle. Admittedly, the owner of the vehicle has not joined the Appeal. Cross-objection should, as the general rule primarily be against the appellant. It is only in exceptional cases, such as where the relief sought against the appellant in the objection is inter-mixed with the relief granted, it cannot be granted without the question being re-opened between the objecting respondent and the others & held that it can be directed also against the other respondents. The relief of enhancement of compensation in the cross-objection is directed against the owner of the vehicle, who is a co-respondent herein. The appellant-Insurer does not become liable for any further amount unless an enhanced award is passed against the owner of the vehicle, who is only the co-respondent in this Appeal. The memorandum of cross-objection is, therefore, not maintainable under Order XLI, Rule 22 of Code of Civil Procedure. In the present Appeal, quantum of compensation has not been challenged by the Insurance Company rather only their liability on the ground of fake driving license has been challenged. If quantum of compensation has not been challenged in the present Appeal by the appellant, enhancement of compensation amount cannot be considered by way of cross-objection under Order XLI, Rule 22 of Code of Civil Procedure. In the present case, owner of the offending vehicle did not challenge the quantum of compensation. The said quantum fixed by the Tribunal has become final between the owner of the vehicle and the claimant, who are co-respondent in the present Appeal and, therefore, the claimant cannot by way of cross-objection challenge the quantum and pray for enhancement thereof. Hence, the cross-objection is not maintainable.
7. In the result, both the Appeal as well as the Cross-objection are dismissed.