Madhya Pradesh High Court
New India Assurance Co. Ltd. vs Smt. Guddi And Ors. on 2 April, 2002
Equivalent citations: 2003ACJ1526, 2002(2)MPHT308, 2002 A I H C 4276, (2002) 2 MPHT 308, (2003) 3 ACJ 1526, (2003) 1 JAB LJ 79, (2002) 3 ACC 274
JUDGMENT S.S. Jha, J.
1. These appeals are filed by the Insurance Company against the common order passed by the learned Single Judge in Misc. Appeal No. 138/19% and Misc. Appeal No. 139/1996.
2. Appellant/Insurance Company has filed appeals against the Award passed by II Additional Motor Accident Claims Tribunal, Gwalior, challenging therein that the Insurance company is not liable to pay compensation as the driver of the vehicle did not possess driving licence. Cross-objection under Order XLI Rule 22 Code of Civil Procedure was filed by the claimants. Learned Single Judge dismissed the appeal, but allowed the cross-objection and enhanced the quantum of compensation. Yearly income of the deceased was assessed at Rs. 6,000/- and after deducting 1/3rd amount, dependency was assessed at Rs. 4,000/- per year and applying the multiplier of 16 compensation was enhanced to Rs. 64,000/- with interest at the rate of 12% per annum.
3. Only contention raised by the counsel for the appellant that in an appeal under Section 173 of the Motor Vehicles Act, 1988, (hereinafter, referred to as the 'Act') there is no scope for cross-objection under Order XLI Rule 22 of the Code of Civil Procedure (hereinafter, referred to as the 'Code'). In support of his contention, counsel for appellant has relied upon the judgment of Single Bench of this Court in the case of Vaidyanath Singh v. Gulabkali and Ors. (1997 ACJ 428). In this case, it is held that the provisions of Order XLI Rule 22 of the Code have not been made applicable to the Act, therefore, cross-objection is not tenable. He further referred to the judgment of Madras High Court in the case of United India Insurance Co. Ltd. v. Rajammal and Ors. (1993 ACJ 486). In that case, it has been considered that the appeal filed by the insurance company was limited to the question of its liability and the insurance company in that appeal had neither questioned the finding regarding the negligence nor the quantum of compensation. It was held that in such appeal, cross-objection by claimants for enhancement of compensation is not admissible.
4. Counsel for appellant then referred to the judgment in the case of United India Insurance Co. Ltd. v. M.R. Subramanian and Anr. (1996 ACJ 1260) and submitted that the insurance company has wrongly been held liable to pay compensation, since the driver of the vehicle did not possess valid licence, which is an admitted position. In such case, the Courts below were not justified in holding that the insurance company is jointly and severally liable with the owner of the vehicle. In this judgment, judgment in the case of United India Insurance Co. Ltd. Vs. Rajammal (supra) was followed wherein it is held that the cross-objection under Order XLI Rule 22 of the Code is not maintainable.
5. Counsel for appellant then referred to the judgment in the case of Superintending Engineer and Ors. v. B. Subba Reddy, 1999 Arb. W.L.J. 333 : (AIR 1999 SC 1747). In this case, the Apex Court held that in an appeal under Section 39 of the Arbitration Act, cross-objection by respondent is not maintainable. He submitted that if there is no right of cross-objection given under Section 39 of the Arbitration Act, it cannot be read into Section 41 of the aforesaid Act. In this judgment, it is held that appeal is a substantive right. It is a creation of the statute. Right to appeal does not exist unless it is specifically conferred. Regarding cross-objection, it is held that cross-objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule 1 pf Order XLI of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to the cross-objection as well. Cross-objection is nothing but an appeal, a cross-appeal at that. Filing of cross-objection is not procedural in nature. In this judgment, scope of Sections 39 and 41 of the Arbitration Act was considered and it was held that since Section 39 does not permit filing of cross-objection, then cross-objection is not maintainable.
6. In the case of New India Assurance Co. Ltd. v. Prem and Ors. (1999 ACJ 63) it is held that when the driver did not possess valid driving licence, then the insurance company is exempted from its liability. Scope of Section 149(2)(a)(ii) of the Act has been considered in this case.
7. In the case of Kashiram Yadav and Anr. v. Oriental Fire & General Insurance Co. Ltd. (1989 ACJ 1078), it is held that if the driver does not possess valid licence, it will be breach of conditions of policy and the insurance company is exempted from its liability.
8. In the case of Mallawwa and Ors. v. Oriental Insurance Co. Ltd. and Ors. (1999 ACJ 1) it is held that the insurance company is exempted from its liability in case of death or injury sustained by a person carrying goods in a goods vehicle either alongwith their goods or after paying fare or gratuitously, and is not liable to pay compensation.
8-A. In the case of Collector, Varanasi v. Gauri Shankar Misra (AIR 1968 SC 384), scope of Arbitration Act and Defence of Indian Act was considered and it is held in para 4 of the judgment that appeal shall lie to the High Court against an award of an arbtirator. Apex Court was informed in that case that neither Act nor Rules framed thereunder prescribe any special procedure for the disposal of the appeals under Section 19(1)(f) of the Defence of India Act, 1963. It was held that when the appeal reached the High Court, it had to be determined by the High Court according to the rules of practice and procedure of that Court. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice and procedure of that Court.
9. The question requires consideration is whether cross-objection is permissible under the Act.
10. On perusal of Section 173 of the Act, it provides that any person aggrieved by the award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court. It further provides that no appeal by a 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 25,000/-rupees or fifty percent, of the amount so awarded, whichever is less, in the manner directed by the High Court.
11. Question whether appeal is maintainable or not is to be determined in the light of the provisions of the rules framed under the Act, The Madhya Pradesh Motor Vehicles Rules, 1994 (hereinafter, referred to as 'Rules') have been framed in exercise of the powers conferred by Sections 28, 38, 65, 95, 96, 107, 111, 138, 159, 176, 211 and 213 of the Act, having been previously published as required by Sub-section (1) of Section 212 of the Act. Form of appeal is provided under Rule 242 of the Rules. Rule 242 is reproduced below:--
"242. Form of appeal and contents of memorandum.-- (1) Every appeal against the award of the Claims Tribunal shall be preferred in duplicate in the form of memorandum signed by the appellant or an Advocate or Attorney of the High Court duly authorised in that behalf by applicant and shall be presented within ninety days from the date of the award to the Registrar of the High Court or to such officer authorised by him in this behalf. The Memorandum shall be accompanied by a certified copy of the award.
(2) The memorandum in sub-rule (1) shall set forth concisely and under distinct heads the grounds of objection to the award appealed from without any argument or narrative; and such ground shall be numbered consecutively.
(3) Save as provided in sub-rules (1) and (2) the provisions of Order XXI and Order XLI of the First Schedule of the Code of Civil Procedure, 1908 (V of 1908) shall mutatis mutandis apply to appeals preferred to the High Court under Section 173."
Thus, from bare perusal of sub-rule (3), it is apparent that the provisions of Order XXI and XLI of the First Schedule of the Code of Civil Procedure, 1908 shall mutatis mutandis apply to appeals preferred to the High Court under Section 173 of the Act. Thus, it is amply clear that in an appeal under Section 173 of the Act, provisions of Order XLI of the Code shall apply.
12. Counsel for appellant then submitted that notification is not under Section 173 of the Code, therefore, cross-objection is not maintainable.
13. From bare reading of Rule 242 of the Rules, it is clear that the provisions of Order XLI of the Code shall mutatis mutandis apply to the appeals preferred to the High Court under Section 173 of the Act. On plain reading of Rule 242, it is clear that the provisions of Order XLI of the Code will be applicable in appeals filed against the award of Claims Tribunal under Section 173 of the Act. Since the statute has conferred power and applicability of Order XLI of the Code, the provisions of cross-objection shall also apply. Contention of the counsel for appellant that since the insurance company has come up in appeal against a limited question, hence, appeal cannot be reopened under the garb of cross-objection on the questions which have not been challenged by the appellant is misconceived. Cross-objection is nothing but a form of appeal and this right has accrued to the party after it has received the notice of appeal. The party gets right to file cross-objection within thirty days from the date of receipt of notice. As such, it is open for the claimants to file cross-objection and the claimants cannot be stopped from challenging the quantum of compensation by way of cross-objection. In the said facts of the case, we are of the considered opinion that the learned Single Judge has not committed any error in entertaining the cross-objection and passing the award. In the said facts of the case, we hold that the law laid down in the case of Vaidyanath Singh (supra) is not the correct law, and the cross-objection under Order XLI Rule 22 of the Code is maintainable in an appeal under Section 173 of the Act.
14. It is contended by the appellant/Insurance-Company in the connected L.P.A. No. 16/98 that no cross-objection is filed by the claimants. It is, therefore, urged that in the absence of cross-objection, compensation could not be enhanced.
15. In the case of Choudhary Sahu v. State of Bihar (AIR 1982 SC 98), it is held that while exercising powers under Order XLI Rule 33 of the Code, Court can grant relief depending upon the exigency of the circumstances and the situation in a particular case in order to render justice. It is further held that even in the absence of cross-objection/appeal, in the interest of justice, equity and conscience, if aggrieved party is able to satisfy, then it is open for the Court to grant proper relief in favour of the aggrieved person. Appellate Court is competent to enhance quantum of compensation awarded by the Claims Tribunal even in the absence of cross-objection. In the said facts of the case, since Appellate Court has enhanced the compensation in the interest of justice, equity and conscience, and the claimants were permitted to canvass the correctness of the order for which they have not chosen to challenge by way of appeal or cross-objection, the Court can exercise its power under Order XLI Rule 33 of the Code and grant equitable relief. Since the powers have been exercised under the aforesaid provision, no interference is warranted with the order passed by learned Single Judge.
15-A. In the result, appeals fail and are dismissed without any order as to costs.