Allahabad High Court
The New India Assurance Co Ltd vs Smt. Sushma Gupta And Others on 8 December, 2017
Author: Saral Srivastava
Bench: Amreshwar Pratap Sahi, Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 37 Case :- FIRST APPEAL FROM ORDER No. - 3165 of 2008 Appellant :- The New India Assurance Co Ltd Respondent :- Smt. Sushma Gupta And Others Counsel for Appellant :- Vinay Khare Counsel for Respondent :- Manish Goyal Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Saral Srivastava,J.
The present appeal has raised an issue of importance namely, as to whether an appeal filed under Section 173 of the Motor Vehicles Rules Act, 1988 before the High Court read with Rule 222 of the U.P. Motor Vehicles Rules, 1998, confers any right on the respondents in the appeal to file a Cross Objection as envisaged in terms of Order XLI Rule 22 of the C.P.C., or not.
To appreciate the controversy and the objection raised on behalf of the learned counsel for the Insurance Company to the said effect, we had passed an order on 14.11.2017 directing the matter to come up on the next day. The matter was heard by us on 15.11.2017 when we passed the following order :
The matter had been heard by us yesterday and the case was adjourned on the request of Sri Manish Goyal, learned counsel for the respondent. The order passed on 14.11.2017 is extracted hereinunder :
"Heard Sri Vinay Khare, learned counsel for the appellant has advanced his submissions contending that the right of appeal as conferred under Section 173 of the Motor Vehicles Act does not envisage the right of filing of a cross objection by the respondent in the appeal. He submits that the right of a cross objection as understood Order 41 Rule 22 of the Civil Procedure Code is at par with a substantive right of appeal and unless the Motor Vehicles Act, 1988 or the Rules framed thereunder create any such right for the filing of a cross objection, a cross objection would not be maintainable for which heavy reliance has been placed on the Full Bench of the Himanchal Pradesh High Court in the case of Lata Vs. United Indian Insurance Company Ltd and others 2005 Volume 2 TAC page 902.
He has further invited the attention of the Court to the judgments of the Apex Court in a matter arising out of Section 41 of the Arbitration Act, 1940 where according to him a similar argument had been advanced which was repelled after considering the provisions of Section 41 of the 1940 Act holding that a cross objection as contemplated under Order 41 Rule 22 would not be maintainable unless a right exists for which he has invited the attention of the Court to paragraph 25 of the said judgment.
It is therefore, urged that applying the said ratio and the principles and keeping in view the provisions of the Uttar Pradesh Motor Vehicle Rules, 1988 particularly Rule 221 and Rule 222 thereof, read with Section 173 and Section 169 of the Motor Vehicles Act, 1988, no such provision has been made for in order to enable the respondent to file a cross objection in an appeal filed under Section 173. The argument, therefore, is that the cross objection filed in the present case would not be maintainable.
There is one more aspect which also requires to be answered which in our opinion has to be dealt with namely that the right to file an appeal is subject to the limitation prescribed under the Act against an award. The appeal has to be filed within 90 days. There can be a case where a party who may be intending to raise objections against any of the findings does not file an appeal within 90 days but comes up with a cross objection in a time barred appeal filed by another aggrieved party. The appeal can be filed with a prayer for condoning delay even beyond 90 days which can be entertained and the period even extend to years together. In such an event, if a respondent in the appeal comes up with a cross objection where according to the statutory provision a cross objection can be filed within 30 days of the service of notice of the appeal, but as urged if the right of cross objection is not available, and an appeal has not been filed within 90 days, then by prescription an appeal of such a person would be barred by limitation, but on the other hand he will have a right to file a cross objection in a time barred appeal. This anomaly, therefore, also deserves to be considered, while taking into account the right of a aggrieved person to file a cross objection.
Sri Manish Goyal appearing for the respondent prays that the matter be taken up tomorrow.
Put up tomorrow, ie. 15.11.2017. "
Today Sri Archit Mehrotra holding brief of Sri Manish Goyal has invited the attention of the Court to the Full Bench judgment of this Court in the case of U.P.S.R.T.C. Vs. Smt. Janki Devi, 1982 ALR, 460 where the Full Bench while interpreting the provisions of Section 110-D of the Motor Vehicles Act, 1939 on the same issue has held a Cross Objection to be maintainable in First Appeal From Order filed under the then existing provisions of the Act. It is urged that at present also the same provisions are at pari materia for consideration before this Court namely, under Section 173 of the 1988 Act read with the relevant provisions and the 1998 Rules and, therefore, the same reasoning would apply which are relevant even today. In short, the ratio of the aforesaid Full Bench judgment on all squares applies with full force on the issue raised in the present appeal on the maintainability of the Cross Objection.
Learned counsel for the appellant has invited the attention of the Court to another judgment pertaining to the entertaining of a Cross Objection in a Letters Patent Appeal has stated in appeal under the High Court Rules of Madhya Pradesh which came up for interpretation before a Full Bench of the Madhya Pradesh High Court in the case of Jabalpur Development Authority Vs. Y.S.Sachan, 2004 (2) MPHT, 314. He has also urged that a similar issue under the Provincial Small Causes Court came up for consideration before a learned Single Judge of this Court where also it was held that in the absence of any statutory conferment of a right of Cross Objection, the same could not be maintainable. Reliance has been placed on Ram Prasad Vs. Panna Lal, 1997 AWC Supp., 302.
On a conspectus of the rival submissions that have been advanced and the decisions that have been cited at the bar, the issue deserves to be dealt with in order to settle the law, as there is no such judgment interpreting the provisions of the 1988 Act and the 1998 Rules framed thereunder and for which a reference may also have to be made to the Allahabad High Court Rules, 1952.
Consequently it would also be appropriate that the Stamp Reporting Section submits a report in relation to the entertaining of such Cross Objections in First Appeal From Orders filed in appeals under Section 173 of the Motor Vehicle Act, 1988 after taking into account the provisions Section 169 thereof and Rules 221 and 222 of the U.P. Motor Vehicle Rules, 1998. The Stamp Reporting Section will also take notice of the judgments referred to hereinabove and in our order dated 14.11.2017 and all such administrative orders or any other judgments touching upon the issue and then submit a comprehensive report for a consideration by this Court on the issue raised of the maintainability of the Cross Objection filed in this appeal.
As a measure of precaution we also find that the Cross Objections which are filed either beyond time or even within time, they are straight away kept on the records in the pending files of appeals without any reporting in relation to the Cross Objection. In the present case also there is no report of the office on the Cross objections filed. We, therefore, direct the Registrar General to take appropriate steps for issuing instructions to all Sections where Cross Objections are filed and are preserved in the files to be sent to the Stamp Reporter for a report keeping in view the provisions of Order 41 Rule 22 C.P.C., The Limitation Act, their valuation, Court Fees or Statutory Pre-deposits and the Allahabad High Court Rules, 1952 so that such Cross Objections do not have to be referred by the Court for reporting before the Stamp Reporter only when the case is listed before the Court. This will obviate consumption of unnecessary time of the Court as such report can be more conveniently obtained directly by the sending of the Cross Objection along with the records of the appeal by the concerned section to the Stamp Reporter for being reported, and then the report being placed before the Court whenever the matter is listed before it.
Let this order be brought to the notice of the Registrar General and the Stamp Reporter for taking appropriate steps in view of the issues which have been raised. The Stamp Reporter as directed will submit his report by the date fixed. We had summoned the Stamp Reporter and he has prayed for a reasonable time to submit the report and accordingly, we direct the case to come up on 30.11.2017.
The Stamp Reporter shall also submit a report on the Cross objection in the present case."
The case has been listed today along with the report of the Stamp Reporter dated 24.11.2017 which is extracted hereinunder :
"Reference your goodself's order dated 18.11.2017 in pursuance of Hon'ble Court's order dated 15.11.2017, the Stamp Report has been required to submit his report with regard to entertaining of the cross objections in FAFO under section 173 of the M.V.Act 1988 after taking into account the provisions of section 169 thereof and rules 221 & 222 of the Motor Vehicle Rules, 1988.
The S.R. very humbly submits that he has gone through the order passed by Hon'ble Court dated 15.11.2017 and found that Shri Vinay Khare learned counsel for the appellant has advanced his submission contending that the right of appeal as conferred under section 173 of M.V.Act 1988 does not envisage the right of filing of cross objections by respondent in the appeal.
In this connection it is very humble submitted that the Hon'ble Apex Court has held in its decision reported in (2009) 8 Supreme Court Cases 646 that the Motor Accident Claim Tribunal is "court subordinate" to the High Court and in view of this cross objection would lie in the proceeding of appeals under section 173 of the M.V.Act 1988.
So far as the Full Bench decision of this Hon'ble Court reported in A.L.R. 1982 page 460 is concern this much has not yet been overruled.
Submitted for kind perusal and others."
The Stamp Reporter has reported that a Cross Objection would lie and further the Full Bench judgment of this Court in the case of U.P. State Road Transport Corporation Vs. Smt. Janki Devi and others (Supra) interpreting the same issue under the then existing Motor Vehicles Act, 1939 and the Rules framed thereunder has not been over-ruled.
Consequently Cross Objections in this Court are being entertained and disposed of in all appeals arising out of the Motor Vehicles Act, 1988.
However, since the objection has been taken by the learned counsel for the Insurance Company citing several decisions of High Courts across the country and also supporting the said judgments with the aid of the ratio of the judgment of the Apex Court on similar issues, we have heard the matter at length and we proceed to deal with this issue finally before proceeding to dispose of the appeal itself on merits.
We had heard arguments and reserved the orders on 30.11.2017.
As noted in our order dated 15.11.2017 extracted hereinabove, learned counsel for the Insurance Company Sri Vinay Khare has urged that the right of Cross Objection is at par with the right of appeal and is not a mere procedural right but a substantive right conferred under Order XLI Rule 22 C.P.C. that can be exercised by a respondent in a regular appeal filed under Section 96 or Section 100 of C.P.C. This right to file a Cross Objection is however not available in an appeal filed under Section 173 of the Motor Vehicles Act, inasmuch as, this is not a regular appeal in terms of Section 96 read with Section 100 of the C.P.C. where all the provisions relating to appeals under the Code are applicable. Rule 221 of the 1998 Rules permits a limited application of the Code of Civil Procedure that does not include the applicability of Order XLI Rule 22.
Section 173 of the Motor Vehicles Act, 1988 confines itself to the filing of an appeal by any party aggrieved by the award of a Tribunal under the Motor Vehicles Act, 1988. Thus no party is remedyless and if aggrieved it can always file an appeal raising its grievances.
He submits that even the procedure of appeal as provided under Rule 222 of the U.P. Motor Vehicle Rules no where envisages the filing of a Cross Objection and in the absence of any explicit conferment of a right to file a Cross Objection, the same cannot be permitted as, such a right, is a substantive right which can only be created under the Statute and not otherwise. He submits that such a right can-not be inferred treating it to be a mere procedure or inherently available in terms of Section 173 of the 1988 Act. For this, he has placed heavy reliance on the Full Bench judgment of the Himachal Pradesh High Court in the case of Lata Vs. United India Insurance Company Limited and others (Supra) and in order to aid his submissions has referred to the decision in respect of other similar Special Statutes namely that under the Arbitration Act and under the Provincial Small Causes Courts Act. The decisions relied on by him are in the case of Superintending Engineer and others Vs. B.Subba Reddy, AIR 1999 SC, 1747 where it was held that a Cross Objection in an appeal under Section 39 of the Arbitration Act of 1940 would not be maintainable. The judgment in a matter arising out of Provincial Small Causes Court by a learned Single Judge of this Court has been relied upon namely that of Ram Prasad Vs. Panna Lal (Supra). To substantiate his submission he contends that if such a right is inferred, then several other provisions of the Civil Procedure Code like review and other miscellaneous provisions may also be argued to be available on the same analogy which cannot be permitted in the absence of any specific provision in the Statute.
Similarly, a right of Cross Objection cannot be read into the Statute in the same way as in the matter of Letters Patent Appeal as per the Madhya Pradesh High Court in its Full Bench decision in the case of Jabalpur Development Authority Vs. Y.S.Sachan (Supra).
He has urged that the judgment in the case of K.Chandrashekara Naik and another Vs. Narayana and another, AIR 1975 Karnataka 18 (FB) is clearly distinguishable and was under the old Motor Vehicles Act which has been considered by the Full Bench of the Himachal Pradesh High Court and he therefore contends that the judgment in the case of Lata Vs. United India Insurance Company Limited and others (Supra) by the Full Bench of Himachal Pradesh High Court should be considered to have laid down the law correctly on this issue which is directly on the point.
Advancing his submissions he contends that the Full Bench judgment of this Court in the case of U.P. State Road Transport Corporation Vs. Smt. Janki Devi and others (Supra) is of the year 1982 under the old Motor Vehicles Act, 1939 and further the said decision now can-not be treated to be laying down the correct law keeping in view the Apex Court judgment in the case of Superintending Engineer and others Vs. B.Subba Reddy (Supra) and the other decisions which form the ratio of the Full Bench judgment of the Himachal Pradesh High Court in the case of Lata Vs. United India Insurance Company Limited and others (Supra)(Supra) . He further submits that this Court can taking notice of the aforesaid judgments and the ratio thereof hold otherwise as a Cross Objection under a Special Statute, namely the 1988 Act, is not contemplated and would therefore not create any right on the respondents to file a Cross Objection in an appeal before the High Court under Section 173 of the 1988 Act. He contends that any such interpretation would be violative of the entire scheme of the 1988 Act for which the remedy of an aggrieved person is either to file his own appeal or otherwise it is open to the State Government to introduce a separate Rule to that effect in the U.P. Motor Vehicles Rules as was done by the Himachal Pradesh High Court in the Full Bench decision in the case of Lata Vs. United Indian Insurance Company Limited and others (Supra).
Sri Manish Goyal, learned counsel for the claimants who has filed a Cross Objection contends that in the absence of any prohibition or bar, the procedure of appeal under Rule 222 of the U.P. Motor Vehicle Rules has to be read along with Chapter IX and XI of the Allahabad High Court Rules, 1952 that prescribes the procedure of filing of appeal. He submits that a Cross Objection is not excluded and is only an opportunity to the respondent to point out defect about any findings recorded adverse to the respondent which can be asserted by way of a Cross Objection only in an appeal filed under Section 173 of the Motor Vehicles Act, 1988. He submits that the existence of a right of an appeal nowhere deprives the respondent in an appeal to file a Cross Objection if he is aggrieved by any finding and this being inherent on account of an appeal being maintainable before this Court, the ratio of the judgment of the Full Bench of this Court in the case of U.P. State Road Transport Corporation Vs. Smt. Janki Devi and others (Supra) applies on all squares. He has cited the Karnataka High Court Full Bench judgment in the case of K.Chandrashekara Naik and another Vs. Narayana and another (Supra) as also the Constitution Bench judgment in the case of Collector Varanasi Vs. Gauri Shanker Misra and others, AIR 1968 SC, 384 to buttress his submissions. Reliance has been placed on the following judgments as well :
1. New India Assurance Co. Ltd. Vs. Venkataramana and others, 2006 ACJ, 1778. (Paragraph No.7)
2. National Insurance Co., Baroda Vs. Diwaliben and others, 1982 (Sup) ACJ, 610. (Paragraph No.17).
3. H.P. Road Transport Corporation Vs. Pt. Jai Ram and etc., AIR 1980 (HP), 16 : 1979 TAC, 297 . (Paragraph Nos.39, 40 and 44).
4. M/s Automobiles Transport (Rajasthan) Pvt. Ltd. and another Vs. Dewalal and others, 1977 AIR (Raj.), 121 : 1977 ACJ, 150 (Paragraph No.7).
5. Government of A.P. Vs. Mrs. K. Padma Rani and others, 1976 AIR (A.P.), 122. (Paragraph No.19).
6. Major Triloki Nath Bhargava and another Vs. Smt. Jaswant Kaur and others, 1975 AIR (Punjab), 303. (Paragraph No.5).
7. The Phoenix Assurance Co. Ltd. Vs. Kalpana Rajput and another, 1975 AIR (Gauhati), 20. (paragarsph Nos.7 and 18).
8. Hari Shankar Rastogi Vs. Sham Manohar and others, (2005) 3 SCC, 761. (Paragraph No.5).
It is pointed out by Sri Goyal that the judgment in the case of Superintending Engineer and others Vs. B.Subba Reddy (Supra) has been over-ruled by a Three Judges decision of the Apex Court in the case of Municipal Corporation of Delhi and others Vs. International Security and Intelligence Agency Ltd., (2004) 3 SCC, 250.
The issue that has to be ultimately answered would be dependent on the enunciation of law about substantive and procedural rights in the background that the Motor Vehicles Act, 1988 and the corresponding Rules framed thereunder, including the U.P. Motor Vehicle Rules, 1998 is a codified law with State control in the matters of awarding compensation arising out of accidents on account of vehicular traffic at a public place. The social dimension therefore should not be lost sight of as this is a beneficial piece of Legislation framed for the purpose of providing ultimate benefit to a person suffering injury or to his dependents and heir in the event of the accident being fatal. The object of the Legislation therefore is to provide just and fair compensation as per the law of insurance and risk coverage prevalent in the country. Thus it is the substantive right to either receive or deny compensation which has been codified in essence in this welfare Legislation.
It is gain said that procedure is the hand maid of justice and therefore denial of any opportunity in this adjudicatory process to either of the aggrieved parties should not result in injustice or mis-carriage of justice. All procedure therefore to ensure for arriving at the correct assessment of just and fair compensation should be construed in a manner that it sub-serves the ultimate purpose and the object of the Legislation through fair means.
It is with this avowed object of ensuring the award of fair and just compensation that the Legislature has created an adjudicatory Tribunal under the 1988 Act empowering it to decide the rights, liabilities and obligations in respect of a claim of compensation arising out of an accident. The tools of procedure have also been prescribed keeping the Tribunal away from the rigors of strict rules of evidence and procedure which is to facilitate an easy, transparent and smooth expeditious disposal of such claims without any barriers of stringent modes of procedure.
"Section 169 Procedure and powers of Claims Tribunals.--(1) In holding any inquiry under Section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.
(2) The Claims Tribunal shall have all the powers of a civil court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry."
It is with this end in view that a right of appeal to an aggrieved person arising out of an adjudication of a claim has been conferred under Section 173 of the 1988 Act which is extracted hereinunder :
"Section 173.
(1) Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court, unless he has deposited with it twenty-five thousand rupees or fifty per cent, of the amount so awarded, whichever is less, in the manner directed by the High Court:
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.
Section 176 of the 1988 Act is the Rule framing power conferred on the State Government that also includes the form and manner of preferring appeals. The same is reproduced herein below:
"176. Power of State Government to make rules.--A State Government may make rules for the purpose of carrying into effect the provisions of Sections 165 to 174, and in particular, such rules may provide for all or any of the following matters, namely:
(a) the form of application for claims for compensation and the particulars it may contain, and the fees, if any, to be paid in respect of such application;
(b) the procedure to be followed by a Claims Tribunal in holding an inquiry under this Chapter;
(c) the powers vested in a civil court which may be exercised by a Claims Tribunal;
(d) the form and the manner in which and the fees (if any) on the payment of which an appeal may be preferred against an award of a Claims Tribunal; and
(e) any other matter which is to be, or may be, prescribed."
In exercise of the powers conferred under the 1988 Act Rules have been framed in the State of U.P. namely, the U.P. Motor Vehicle Rules, 1998. The procedure for deciding a claim is contained in Chapter IX of the 1998 Rules and Rules 221 and 222 that are relevant for the present controversy are extracted hereinunder :
"221. Code of Civil Procedure to apply in certain cases- The following provisions of the First Schedule to the Code of Civil Procedure, 1908 shall so far as may be apply to proceedings before the Claims Tribunal, namely, Rules 9 to 13 and 15 to 30 of Order V; Order IX, Rules 3 to 10 of Order XIII; Rules 2 to 21 of Order XVI; Order XVII and Rules 1 to 3 of Order XXII.
222. Form and number of appeals against the decision of Claims Tribunal- (1) An appeal against the award of a Claims Tribunal shall be preferred in the form of a memorandum stating concisely the grounds on which the appeal is preferred.
(2) It shall be accompanied by a copy of the judgment and award appealed against."
Rule 221 places a restriction on the limited applicability of the C.P.C on the Claims Tribunal as far as possible.
Rule 222 does not either spell out or prohibit the filing of a Cross Objection nor does it places restrictions on the applicability of rules relating to an appeal under Section 173 of the 1988, Act.
While dealing with the provisions of the Motor Vehicle Act, 1939, a Full Bench of our Court in the case of U.P. State Road Transport Corporation Vs. Smt. Janki Devi and others (Supra) discussed the scope of the word "appeal occurring under Section 110-D of the Motor Vehicles Act, 1939. " The question that was framed by the Full Bench for consideration is as follows:
"Whether a cross-objection as contemplated by Order XLI, Rule 22 of the Code of Civil Procedure is maintainable before the High Court at the instance of respondent to an appeal filed under Section 110-D of the Motor Vehicles Act, 1939 ?"
The Full Bench while proceeding to answer the said question began with enunciating that if a Statute directs an appeal to be maintainable before a Court, then such an appeal shall be regulated by the practice and procedure of that Court. While interpreting the issue, the Full Bench said that this is not a matter of any further right of appeal but the right to prefer a Cross Objection in an appeal pending before the High Court. It was then held that the right to prefer a Cross Objection is not different in nature than the right to prefer an appeal and therefore it is that right of appeal which is exercised when a Cross-Objection is preferred. To understand this Order XLI Rule 22 of C.P.C. is extracted hereinunder :
"22. Upon hearing, respondent may object to decree as if he had preferred separate appeal.- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the court below in respect of any issue ought to have been In his favour; and may also take any cross objection] to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation: A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
2) Form of objection and provisions applicable thereto--Such cross objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Omitted (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or Is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule."
High Court Amendment In Rule 22, the following words be inserted after the word "hearing" and before the word "the" : "or appearance in" (Noti No.348/VII-d-168, dated 8-8-1994, w.e.f. 22-10-1994).
The Court then went on to refer to Rule 10 of Order XLI-A of the Code of Civil Procedure as applied by the High Court amendment which is to the following effect :
"10. Upon hearing, respondent may object to decree as if he had preferred separate appeal---Any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection within one month from the day fixed for his appearance in the notice served upon him in accordance with Rule 4, or within such further time as the Court may deem fit to allow. "
The Full Bench found that the aforesaid Rule of Order XLI-A is in the same terms as Clause (1) of Rule 22 of Order XLI. It is on such construction that the Court came to the conclusion that the provision does not confer any new right on the respondents but only affords them a fresh opportunity to exercise the very same right which they had either under the Code of Civil Procedure Code or under the Special Statute. The Full Bench opined that the right to avail of the same procedure is available to a person who has a right of appeal conferred by the Special Statute that is the right to file a Cross Objection is included in the right of appeal conferred by the Statute.
The Court however, clarified that the person filing the Cross Objection can take only those pleas which he could have taken by way of his right of appeal and therefore such incidents indicated that there is no material difference between an appeal and a Cross Objection except the stage of the proceedings. The Full Bench relied on a Madras High Court judgment in the case of A.L.A. Alagappa Chettiar Vs. Chockalingam Chetty, AIR 1919 Mad, 784 in relation to insolvency proceedings where it was held that such a right was merely to allow a person to avail an additional rule of procedure by way of memorandum of objection when a right of appeal is exercised by the other side. The Court further relied on a Madhya Pradesh High Court judgment in the case of Inayatullah Khan Vs. Diwanchand Mahajan and others, AIR 1959 M.P., 58 where it was held that a Cross Objection would lie even though there may be no express provision conferring a right of filing Cross Objection. The Court further concluded that once an appeal lies before the High Court then it imports that the ordinary incidence of the procedure of that Court relating to appeal would include the right to file a Cross Objection. The judgment of the Apex Court in the case of Sahadu Gangaram Bhagade Vs. Special Deputy Collector and another, AIR 1971 SC, 1887 was further referred to in a matter arising out of the Bombay Court Fees Act where it was held that the memorandum of Cross Objection is a form of appeal and partakes the character of a cross appeal. The Full Bench has further held that the Motor Accident Claims Tribunal is not an Arbitration Tribunal but a Statutory Tribunal and the subject matter whereof bars the jurisdiction of the Civil Court to decide an original claim. It was also found by the Full Bench that practically all the High Courts in India barring a few exceptions had taken the same view and at this stage we may also refer to the judgment of the Karnataka High Court in the case of K.Chandrashekara Naik and another Vs. Narayana and another (Supra).
In contrast to the aforesaid Full Bench judgment of this Court learned counsel for the Insurance Company has come up with the ratio of the Full Bench judgment of the Himachal Pradesh High Court in the case of Lata Vs. United India Insurance Company Limited and others (Supra). The said Full Bench decision after taking notice of the contrary view of the Karnataka High Court countered the same with the aid of the reasoning that where, even though the Act is a Special Act and is a beneficial piece of Legislation, yet where the Act has a scheme of its own, and there is no vagueness or doubt therein, the Court would not travel beyond the same and extend the scope of the Statute that too even in the absence of any Rule to that effect. It also held that in view of the specific provision under the 1988 Rules of the limited application of the Civil Procedure Code, there is no occasion to expand the scope of applicability of the other provisions of C.P.C. in as much as the right of Cross Objection being at par with an appeal is a substantive right and has to be created by and under the Statute. It can-not be inferred by interpretation as to be available automatically as there is no inherent right either to file an appeal or a Cross Objection. The 1988 Act confers a right of appeal but it does not provide for any right to file a Cross Objection or even the procedure for filing a Cross Objection.
The Full Bench decision of the Himachal Pradesh High Court does not take notice of the decision or reasoning of the Full Bench of this Court in the case of U.P. State Road Transport Corporation Vs. Smt. Janki Devi and others (Supra) but notices the judgment of the Apex Court in the case of Municipal Corporation of Delhi and others Vs. International Security and Intelligence Agency Ltd., (2004) 3 SCC, 250 arising out of an appeal filed under Section 39 of the Arbitration Act, 1940. It was further held by the Himachal Pradesh High Court that the form and manner of exercise of right may be procedural but the right to file an appeal or a Cross Objection is a substantive right and it continues to be so and therefore it has to be specifically provided for and created under the Statute. It is after construing the reasoning of the Apex Court in the case of Municipal Corporation of Delhi and others Vs. International Security and Intelligence Agency Ltd. (Supra) that the Full Bench decision of Karnataka High Court judgment in the case of National Insurance Co. Ltd. Vs. Prema and others, 2002 (3) TAC, 724 was held not to be available of any help. While disagreeing with the same, the said Full Bench of Himachal Pradesh High Court then interpreted Sections 169 and 176 of the 1988 Act read with Rules 232 and 233 of the Himachal Pradesh Motor Vehicle Rules, 1999 that are pari-materia to Rules 221 and 222 of the U.P. Motor Vehicle Rules, 1998 quoted hereinabove. The Full Bench held that the Court can not import into the Act or the 1999 Rules a right to file a Cross Objection which was not in existence and created under the Statute.
Learned counsel for the Insurance Company buttressed his submissions with the judgment in the case of Superintending Engineer and others Vs. B.Subba Reddy (Supra) to the same effect and as noted the above he has also relied on the judgment of the Madhya Pradesh High Court in the case of Jabalpur Development Authority Vs. Y.S.Sachan (Supra) where it has been held that a Cross Objection would not be available in a Letters Patent Appeal filed under the Madhya Pradesh High Court Rules against a case decided in exercise of the powers under Articles 226 and 227 of the Constitution of India. The other judgments have also been referred to that have been referred to hereinabove.
It is this conflict of opinion and the later decisions of the Apex Court that has been pressed into service on behalf of the Insurance Company to deny the right to file a Cross Objection.
There is one more dimension which requires to be noticed before we delve in to the issue further. The same is that in the background that the Motor Vehicles Act, 1988 is a Special Legislation framed for the benefit of the Society at large, the principles contained in Order XLI Rule 33 of C.P.C. have also to be noticed. The same is extracted hereinunder :
"33. Power of court of Appeal.- The Appellate Court shall have power to pass any decree and made 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-suits 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."
It is in the aforesaid background we may now come to as to what is a right of appeal as ordinarily understood and as to whether a right of Cross Objection as contemplated under the Civil Procedure Code is part of such substantive right of appeal or is additionally an inherent facility and opportunity to a contesting party to take Cross Objection, and if so, then whether such a right to file a Cross Objection if not specifically created can be construed to be available by virtue of the procedure of appeals applicable in the High Court or is otherwise barred as it has not been created or conferred under the Motor Vehicles Act, 1988.
To understand this it would be appropriate to refer to a celebrated Constitution Bench decision of the Apex Court in the case of Sita Ram and others Vs. State of Uttar Pradesh, 1979 (2) SCC, 656. The majority opinion of the Three Hon'ble Judges led by Hon'ble Krishna Iyer, J. traversed the jurisprudence of the right of an appeal. The Apex Court referred to an authoritative text namely Final Appeal-- A study of the House of Lords in its Judicial capacity, by Louis Blom. The relevant extract of paragraph no.25 of the said judgment is extracted hereinunder :
25. .............. The nature of the appeal process cannot be cast in a rigid mould as it varies with jurisdictions and systems of jurisprudence. This point has been brought out sharply in "Final Appeal. "The learned authors ask :
"But what does 'appeal' really mean : indeed, is it a meaningful term at all in any universal sense ? The word is in fact merely a term of convenient usage, part of a system of linguistic shorthand which accepts the need for a penumbra of uncertainty in order to achieve universal comprehensibility at a very low level of exactitude. Thus, while 'appeal' is a generic term broadly meaningful to all lawyers in describing a feature common to a wide range of legal systems, it would be misleading to impute a precise meaning to the term, or to assume, on the grounds that the word (or its translated equivalent) has international currency, that the concept of an appeal means the same thing in a wide range of systems.
On any orthodox definition, an appeal includes three basic elements: a decision (usually the judgment of a court or the ruling of an administrative body) from which an appeal is made; a person or persons aggrieved by the decision (who is often, though by no means necessarily party to the original proceedings) and a reviewing body ready and willing to entertain the appeal."
The elasticity of the idea is illumined by yet another passage which bears quotation:
"'Appeals' can be arranged along a continuum of increasingly formalised procedure, ranging from a concerned man in supplication before his tribal chief to something as jurisprudentially sophisticated as appeal by certiorari to the Supreme Court of the United States. Like Aneurin Bevan's elephant an appeal can only be described when it walks through the court room door..... The nature of a particular appellate process- indeed the character of an entire legal system-depends upon a multiplicity of interrelated though largely imponderable) factors operating within the system. The structure of the courts; the status and rule (both objectively and subjectively perceived) of judges and lawyers, the form of law itself-whether, for example it is derived from a code or from judicial precedent modified by statute; the attitude of the courts to the authority of decided cases; the political and administrative structure of the country concerned-whether for example its internal sovereignty is limited by its allegience to a colonizing power. The list of possible factors is endless, and their weight and function in the social equation defy precise analysis."
In short, we agree in principle with the sum-up of the concept made by the author:
"Appeal, as we have stressed, covers a multitude of jurisprudential ideas. The layman's expectation of an appeal is very often quite different from that of the lawyer and many an aggrieved plaintiff denied his 'just' remedy by judge or jury has come upon the disturbing reality that in England a finding of fact can seldom, if ever, form the basis of an appeal. Similarly, a Frenchman accustomed to a narrowly legalistic appeal in cessation, subject to subsequent reargument in a court below, would find little familiarity in the ponderous finality of the judgment of the House of Lords. And a seventeenth-century lawyer accustomed to a painstaking search for trivial mistakes in the court record, which formed the basis of the appeal by writ of error, would be bewildered by the great flexibility and increased sophistication of a jurisprudential' argument which characterize a modern appeal."
The same judgment then goes on to observe in paragraph no.32 "The life of the law is not perfection of theory but realization of justice in the concrete situation of a given system". The Court also observed "that speaking generally, our adversary system finds fulfilment when both sides present rival points of view". It further expanded the theory of natural justice and fusing it with Article 21 observed "it is a binding mandate against blind justice". The court then in paragraph nos.41, 42 and 45 held as under :
"41. Going to the basics, an appeal"is the right of entering a superior court and invoking its aid and interposition to redress the error of the court below"..... An appeal, strictly so called, is one "in which the question is, whether the order of the court from which the appeal is brought was right on the materials which that court had before it" (per Lord Davey, Ponnamma v. Arumogam, 1905 AC, 390)..... A right of appeal, where it exits, is a mtter of substance, and not of procedure (Colonial Sugar Refining Co. v. Irving, 1905 AC, 369 and Newman v. Klausner, (1922) 1 KB, 228. Thus, the right of appeal is paramount, the procedure for hearing canalises so that extravagant prolixity or abuse of process can be avoided and a fair workability provided. Amputation is not procedure while pruning may be.
42. Or course, procedure is within the Court's power but where it pares down prejudicially the very right, carving the kernel out, it violates the provision creating the right. Appeal is a remedial right and if the remedy is reduced to a husk by procedural excess, the right became a casualty. That cannot be.
45. An appeal is a re-hearing and as Viscount Cave laid down, It was the duty of a court of appeal in an appeal from a judge sitting alone to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment where the credibility of witnesses comes into question, but with full liberty to draw its own inferences from the facts proved or admitted, and to decide accordingly.
Prof. A.L.Goodhart, dealing with appeals on questions of fact in the English Law, wrote :
.....it may be suggested, with all respect, that when the appellate judges are in agreement with the trial judge, they take the view that they are bound by his conclusions of fact, but when they disagree with his conclusions then they do not hesitate to overrule them...... if an appellate court has full liberty to draw its own inferences from the facts proved, then appeals on so-called questions of fact will have a far greater chance of success. The most highly trained judges may differ concerning the evaluation of facts, just as ordinary persons may. It is here that conflict of opinion is most frequently found. What is regarded as reasonable by one man, whether judge or layman, may be regarded as unreasonable by another. If, therefore, an appeal can be taken on the evaluation of facts, then there is always a chance that the appellant may succeed, even though the initial duty of showing that the judge below was in error may fall on him."
The Court however cautioned against the generality of interpretation and observed that the Court while interpreting a law should avoid any sweeping intendment as in its opinion "after all, to have a giant strength is not wrong but it is tyrannous to use it like a giant and Judges do know this judicious caution."
There is no doubt that Section 173 of the 1988 Act is a right of appeal and it does partake the character of an appeal with its ingredients as referred to in the judgment extracted hereinabove.
It is in this background that we now come to the issue of the distinction between a substantive right and a procedural right arising from a substantive law or a procedural law. This issue has been elucidly explained by another decision of the Apex Court in the case of M/s Bharat Barrel and Drum Mfg. Co. Ltd. and another Vs. The Employees State Insurance Corporation, 1971 (2) SCC, 860. This was also a judgment interpreting the purpose and intendment of the Employees State Insurance Act that was framed for the benefit of employees and dependents and paragraph nos.6 and 7 of the said judgment throw light on the same that are extracted hereinunder :
"6. The topic of procedure has been the subject of academic debate and scrutiny as well as of judicial decisions over a long period but inspite of it, it has defied the formulation of a logical test or definition which enables us, to determine and demarcate the bounds where procedural law ends and substantive law begins, or in other words it hardly facilitates us in distinguishing in a given case whether the subject of controversy concerns procedural law or substantive law. The reason for this appears to be obvious, because substantive law deals with right and is fundamental while procedure is concerned with legal process involving actions and remedies, which Salmond defines "as that branch of law which governs the process of litigation", or to put it in another way substantive law is that which we enforce while procedure deals with rules by which we enforce it. We are tempted in this regard to cite a picturesque aphorism of Therman Arnold when he says "Substantive law is canonised procedure. Procedure is unfrocked substantive law."
7. The manner of this approach may be open to the criticism of having over simplified the distinction, but nonetheless this will enable us to grasp the essential requisites of each of the concepts which at any rate "has been found to be a workable concept to point out the real and valid difference between the rules in which stability is of prime importance and those in which flexibility is a more important value. Keeping these basic assumptions in view it will be appropriate to examine whether the topic of limitation belongs to the Branch of procedural law or is outside it. If it is a part of the procedure whether the entire topic is covered by it or only a part of it and if so what part of it and the tests for ascertaining them. The law of limitation appertains to remedies because the rule is that claims in respect of rights cannot be entertained if not commenced within the time prescribed by the statute in respect of that right. Apart from Legislative action prescribing the time, there is no period of limitation recognised under the general law and therefore any time fixed by the statute is necessarily to be arbitrary. A statute prescribing limitation however does not confer a right of action nor speaking generally does not confer on a person a right to relief which has been barred by eflux of time prescribed by the law. The necessity for enacting periods of limitation is to ensure that actions are commenced within a particular period, firstly to assure the availability of evidence documentary as well as oral to enable the defendant to contest the claim against him; secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant, without asserting them in a court of law. The principle which forms the basis of this rule is expressed in the maximum vigilantibus, non dormientibus, jura subveniunt (the laws give help to those who are watchful and not to those who sleep). Therefore the object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to dis-courage and suppress stale, fake or fraudulent claims. While this is so there are two aspects of the statutes of limitation the one concerns the extinguishment of the right if a claim or action is not commenced with a particular time and the other merely bare the claim without affecting the right which either remains merely as a moral obligation or can be availed of to furnish the consideration for a fresh enforceable obligation. Where a statute prescribing the limitation extinguishes the right, it affects substantive rights while that which purely pertains to the commencement of action without touching the right is said to be procedural. According to Salmond the law of procedure is that branch of the law of actions which governs the process of litigation, both Civil and Criminal. "All the residue" he says "is substantive law, and relation not to the process of litigation but to its purposes and subject matter". It may be stated that much water has flown under the bridges since the original English theory justifying a statute of limitation on the ground that a debt long overdue was presumed to have been paid and discharged or that such statutes are merely procedural. Historically there was a period when substantive law was inextricably intermixed with procedure; at a later period procedural law seems to have reigned supreme when forms of action ruled. In the words of Maine "So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure". Even after the forms of action were abolished Maitland in his Equity was still able to say "The forms of action we have buried but they still rule us from their graves", to which Salmond added "In their life they were powers of evil and even in death they have not wholly ceased from troubling". Oliver Wendal Holmes had however observed in "The Common Law", "wherever we trace a leading doctrine of substantive law far enough back, we are likely to find some forgotten circumstance of procedure at its source". It does not therefore appear that the statement that substantive law determines rights and procedural law deals with remedies is wholly valid, for neither the entire law of remedies belongs to procedure nor are rights merely confined to substantive law, because as already noticed rights are hidden even "in the interstices of procedure". There is therefore no clear cut division between the two.
The distinction as to whether it is substantive or procedural came to be again considered by the Apex Court in the case of Thirumalai Chemicals Limited Vs. Union of India and others, (2011) 6 SCC, 739 where it was held that a right of appeal under the Foreign Exchange Management Act, 1999 was a substantive right and the procedure for filing such an appeal was a procedural right. However, the test to find out as to whether it was substantive or procedural was reiterated, that what has to be seen is, as to whether the Statute extinguishes merely the remedy or extinguishes the substantive right as well the remedy, and therefore as a matter of principle the safest course would be as to whether it effects substantive rights and extinguishes them or whether it merely concerns a procedural rule dealing with remedies. The same view was re-stated by another Supreme Court decision in the case of Videocon International Limited Vs. Securities and Exchange Board of India, (2015) 4 SCC, 33 holding that the right of appeal was a vested right and was therefore a right in substantive law.
In the instant case Section 173 of the 1988 Act creates a right of appeal and also the jurisdiction to adjudicate the appeal. The question that calls for consideration is as to whether there is a jurisdiction to entertain a Cross Objection and decide the same. To our mind, if the jurisdiction is to adjudicate an appeal then the same implies and inheres in it the right to decide an objection arising out of the same judgment which is in appeal. Discuss Section 169, 176 Rule 221, 222 (at page 10, 11) Legislature conscious of not placing restriction on court of appeal.
The jurisdiction of the High Court to entertain a Cross Objection will be available on the reasoning of Order XLI-A Rule 10 C.P.C. as extracted above and even by applying the substantive rule of procedure contained in Order XLI Rule 33 of C.P.C. A Cross Objection, the moment an appeal is filed, gives an opportunity to the other side which may be a matter of a procedure, but is an exercise of the same right as that of the appellant and which in our opinion does not require a separate Statutory conferment. The right to file a Cross Objection is a necessary concomitant of the right of appeal already created under the Statute. A Cross Objection can not be filed unless an appeal exists and conversely if an appeal is filed, the right to file a Cross Objection if denied can result in injustice or mis-carriage of justice. The reason is that a party may not intend to file an appeal as he may not be seeking any further relief but once an order of the Tribunal is put in jeopardy in an appeal then in order to save what has already been granted to or to demand what has been denied to the other side may be well at risk.
We now proceed to analyze the ratio of the judgment in the case of Municipal Corporation of Delhi and others Vs. International Security and Intelligence Agency Ltd. (Supra) which has also been referred to by the Himachal Pradesh High Court in its Full Bench judgment in the case of Lata Vs. United India Insurance Company Limited and others (Supra).
We have gone through the said judgment and what we find is that the Apex Court while over-ruling the judgment in the case of Superintending Engineer and others Vs. B.Subba Reddy (Supra) has extensively dealt with the right to prefer a Cross Objection vis-a-viz the provisions of Section 39 of the Arbitration Act, 1940. Paragraph nos.13 to 20 and again paragraph nos.21 to 23 of the said judgment are worth referring to. The nature of the objection was the same namely that the right of Cross Objection was not available explaining as to what is the right of Cross Objection vis-a-viz the right of appeal. The Apex Court in paragraph nos.14 and 15 held that the right of appeal would include the right to file a Cross Objection as taking any Cross Objection to a decree is the exercise of right of appeal though such said right is exercised in the form of taking the Cross Objection. The substantive right is the right of appeal and the form of Cross Objection is a matter of procedure. The Apex Court then in paragraph nos.16 and 17 of the judgment went on to explain certain decisions to support the said conclusion and in paragraph no.18 held that the right to take Cross Objection is the exercise of the substantive right of appeal conferred by a Statute. The Court held that the available grounds of challenge whether it is an appeal or a Cross Objection remain the same and then in paragraph no.19 proceeds to over-rule the judgment in the case of Superintending Engineer and others Vs. B.Subba Reddy (Supra).
The aforesaid observations and the ratio in our humble opinion have been completely omitted from being considered by the Full Bench of the Himachal Pradesh High Court. The conclusion drawn in the case of Lata Vs. United India Insurance Company Limited and others (Supra) by the Himachal Pradesh High Court with all due respect therefore suffers from an error of approach in construing the judgment of the Apex Court referred to hereinabove. The Apex Court judgment not only clarifies the said position but also further goes on to hold the effect on the Cross Objection if the appeal is not held to be competent or not maintainable. The doubt therefore stood cleared with regard to the right to file a Cross Objection as being available. Applying the said analogy we find that the said reasoning of the Apex Court supports the view taken by our Full Bench in the case of U.P. State Road Transport Corporation Vs. Smt. Janki Devi and others (Supra) and squarely applies on the provisions now applicable for an appeal under Section 173 of the 1988 Act. The form of Cross Objection is an exercise of the Statutory right of appeal and Rule 222 of the 1998 Rules does not prohibit such form or memorandum of Cross Objection to be taken in an appeal. A Cross Objection therefore is also possessed of the same ingredients as that of an appeal as explained in the case of Sita Ram and others Vs. State of Uttar Pradesh (Supra) that facilitates in advancing the cause of justice.
It is here that the element of a social and beneficial piece of Legislation coupled with the principles of Order XLI Rule 33 of C.P.C. clearly come into play in an appeal under Section 173 of the 1988 Act. We are reemphasizing this as the object and purpose of a Legislation can-not be lost sight of while interpreting such provisions which partake the character of a right and a substantive procedure. A finding can be questioned if adverse to a party only through a Cross Objection.
There is another dimension which should not be lost sight of namely, that the Apex Court in the case of Ranjana Prakash and others Vs. Divisional Manager and another, 2011 (14) SCC, 639 has held that a plea of enhancement by the claimant can not be entertained in an appeal by the Insurance Company unless an appeal or Cross Objection is filed to that effect by the claimant. Paragraph nos.6, 7 and 8 are extracted hereinunder :
"6. We are of the view that the High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of the future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134 being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that the claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objection.
7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.
8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."
This was a Two Hon'ble Judges decision and even though the same has not been noticed, yet in the case of Jitendra Khimshankar Trivedi and others Vs. Kasam Daud Kumbhar and others, (2015) 4 SCC, 237, the Apex Court has held that even if an appeal has not been filed then in order to provide just and fair compensation the High Court can proceed to enhance the compensation in favour of the claimant in an appeal filed by the Insurance Company. Paragraph no.12 of the judgment is extracted below :
"The Tribunal has awarded Rs.2,24,000 as against the same, the claimants have not filed any appeal. As against the award passed by the Tribunal when the claimants have not filed any appeal, the question arises whether the income of the deceased could be increased and compensation could be enhanced. In terms of Section 168 of the Motor Vehicles Act, the courts/the Tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the courts in awarding reasonable compensation was emphasised by this Court in Nagappa Vs. Gurudayal Singh, (2003) 2 SCC, 274, Oriental Insurance Co. Ltd. Vs. Mohd. Nasir (2009) 6 SCC, 280 and Ningamma Vs. United India Insurance Co. Ltd. (2009) 12 SCC 710. As against the award passed by the Tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of courts/the Tribunals to award just and reasonable compensation, it is appropriate to increase the compensation."
What we find from a perusal of the entire Full Bench decision of the Himachal Pradesh High Court that the aforesaid reasoning and logic has no where been taken into account and the decision has been narrowed down presumably applying the strict rules of Statutory interpretation. The purposive angle of the entire scheme of Chapter IX of the 1988 Act ought to have been, in our opinion, a more appropriate method for interpreting the provisions of the Act and Rules.
There are other issues which require consideration namely, can the Court generally presume the applicability of all miscellaneous rules of procedure on the aforesaid reasoning in an appeal under Section 173 of 1988 Act ? For illustration one may refer to the power of review and other miscellaneous provisions that have not been specifically provided for while applying only some of the provisions of the Code of Civil Procedure in Rule 221 for the claims Tribunal.
It is only the power of the Tribunal which is restricted in terms of Rule 221 of the 1998 Rules to apply the provisions of the Civil Procedure Code. This is not a restriction on the procedure of appeal filed under Rule 222 of the 1998 Rules.
Then there may be a Cross Objection in an appeal which can be taken by the owner of the vehicle who may not have filed his own appeal as in the present case. The question is that neither the claimant nor the owners are remedy less as they have a separate right of appeal which can be very easily preferred in terms of Section 173 of 1988 Act. However the larger question is that even assuming that a right of appeal is available, can this right of Cross Objection which is yet another opportunity in the absence of filing of an appeal be denied ?
Such issues have been traversed by other High Courts and we have come across the judgment of a learned Single Judge of the Delhi High Court in the case of The New India Assurance Co. Ltd. Vs. Bal Kishan Pawar and Ors., decided on 31.05.2012 where also the applicability of Rule 22 of Order XLI as well Rule 33 has been considered and it has been held with the aid of the aforesaid provisions that even in the absence of any Cross Objection the rate of interest as desirable can be enhanced. Paragraph no.20 of the said judgment is extracted hereinunder :
"In our opinion, the powers granted under the provisions of Order 41, Rule 33 of the Code are widest in amplitude and could be exercised in favour of the respondents notwithstanding that the respondents or claimants have not filed any cross-objection or appeal. The power of the Tribunal to award interest is provided in Section 171 of the Motor Vehicles Act, 1988 (corresponding Section 110-CC of the Motor Vehicles Act, 1939), where any court or Claims Tribunal allows claim for compensation made under this Act, such court or Tribunal may direct that in addition to the amount of compensation, simple interest shall also be paid at such rate and from such date but not earlier than making such application in this behalf. Thus, a wide discretion is given to the Tribunal for awarding rate of interest while granting the amount of compensation. Motor Vehicles Act is, undoubtedly, welfare legislation. Needless to reiterate that whenever unfortunate victims of road accident or the dependents of the deceased victims enter the thresholds of the court for justice, they should not be overburdened with the technicalities or strict pleadings of the law applicable in other civil cases. In fact, most of the accident victims in our country are pedestrians or cyclists, and most of them are illiterate and come from poor strata of the society and suffering from poverty and ignorance. Considering the benevolence in the provisions of the Motor Vehicles Act and the facts and circumstances emerging from the record of the cases on hand, we are of the opinion that the Tribunal has seriously erred in awarding rate of interest of 6 per cent only in a serious case of disintegration of the bodily frame of the claimant."
The next judgment that we have come across is directly on the point rendered by a learned Single Judge of the Andhra Pradesh High Court in the case of National Insurance Co. Ltd. Vs. Ganne Seshamma and others, decided on 13.03.2013 where the judgment of the Full Bench of this Court in the case of U.P. State Road Transport Corporation Vs. Smt. Janki Devi and others (Supra) has been endorsed in its entirety after taking into account the Apex Court decisions referred to hereinabove and the provisions of the 1988 Act. It has been held that a Cross Objection is maintainable in terms of Order XLI Rule 22 of C.P.C.
Having considered the same what we find is that the scheme of Legislation being a welfare Legislation has to be interpreted in order to protect the interest of the affected parties. This aspect of the matter has no where been touched upon by the Full Bench of Himachal Pradesh High Court in the case of Lata Vs. United India Insurance Company Limited and others (Supra). The entire purpose of the scheme under the 1988 Act is to provide for just and fair compensation and speedy disposal of such claims. It may be apt to mention that such claims are usually contested by widows and minor children or even destitutes at times who have to endlessly wait for the adjudication of their claims for years together. At the end of the day if they are informed that they have no right to file a Cross Objection, the same would be negating an opportunity to raise their plea which otherwise would be available to them had they filed an appeal. To deny such an opportunity would be against the scheme of the Act which does not prohibit the filing of a Cross Objection. The form of appeal and its manner of presentation as provided for under Section 176 of the 1988 Act read with Rule 222 of the 1998 Rules does not in any where restrict the filing of a Cross Objection which otherwise is available for the reasons given hereinabove in terms of Order XLI Rule 22 C.P.C. read with Rule 33 thereof and the reasoning of the Full Bench judgment in the case of U.P. State Road Transport Corporation Vs. Smt. Janki Devi and others (Supra). We also find support from Rule 10 of Order XLI-A C.P.C. as introduced by way of High Court Amendment in the State of U.P. The judgment of the Full Bench of this Court therefore appears to be more purposive and is in tune with the views taken by the other High Courts as well. In the matter of interpretation of a beneficial Legislation the approach of the Courts is to adopt a construction which advances the beneficient purpose underlying the enactment in preference to a construction which tends to defeat that purpose. This was held by the Apex Court while pronouncing on the interpretation of the provisions of the Motor Vehicles Act, 1939 in the case of Shivaji Dayanu Patil Vs. Vatschala Uttam More, 1991 (3) SCC, 530.
We are therefore unable to persuade ourselves to adopt the reasoning of the Full Bench of the Himachal Pradesh High Court in the case of Lata Vs. United India Insurance Company Limited and others (Supra) and hold that a Cross Objection under Order XLI Rule 22 C.P.C. would be maintainable in an appeal filed under Section 173 of the 1988 Act before the High Court.
So far as a Cross Objection by an owner is concerned, the same would also be maintainable subject to the Statutory pre-deposit as well as deposit of Court Fee and valuation for which the Cross Objection should carry a separate report by the Stamp Reporter. This will not in any way prejudice the cause of either of the parties and rather facilitate the entire process of adjudication avoiding any multiplicity of proceedings.
We may further clarify that our conclusions drawn hereinabove are confined only to the availability of the right to file a Cross Objection in an appeal under Section 173 of the 1988 Act before the High Court. The observations and the reasonings given herein therefore have to be read exclusively in relation to the said issue only. The question of applicability of any other miscellaneous provision including a provision of a procedure before the Tribunal is not the scope of this order and is confined only to appeals filed before the High Court.
Consequently the objection raised by the learned counsel for the Insurance Company on that count is rejected.
The Registrar General of this Court shall notify this order to the Stamp Reporter for being applied in the matter of Cross Objections in appeals filed under Section 173 of the 1988 Act.
The appeal shall now be listed for disposal on merits in the next cause list.
Order Date :- 08.12.2017 R./