Madras High Court
G. Anbalagan vs Managing Director, Thanthai Periyar ... on 5 February, 1997
Equivalent citations: II(1998)ACC103, 1999ACJ1453, 1997 A I H C 1636, (2000) 1 TAC 647, (1998) 2 ACC 103, (1997) 1 MAD LW 660, (2000) 3 CIVLJ 200, (1999) 2 ACJ 1453
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT AR. Lakshmanan, J.
1. This Letters Patent Appeal is directed against the judgment of V. Ratnam, J., as he then was, in C.M.A. No. 330 of 1991 dated 2.9.1993 allowing the appeal and setting aside the award of the Motor Accidents Claims Tribunal/Chief Judge, Court of Small Causes, Madras in M.C.O.P. No. 546 of 1988. The claimant is the appellant herein.
2. According to the claimant-appellant, the bus belonging to respondent Corporation was driven by its driver in a rash and negligent manner and due to the same, the appellant sustained grievous injuries. Therefore, a compensation of Rs. 1,00,000 was claimed. The claim was resisted by the respondent Corporation. The Corporation denied the factum of accident itself. The Motor Accidents Claims Tribunal by its order dated 30.7.1990, after considering the evidence adduced on both sides, both oral and documentary, awarded a total compensation of Rs. 40,000 to be shared by the appellant and the respondent in equal moiety, together with interest at the rate of 12 per cent per annum from the date of the petition till the date of payment. Aggrieved by the award of the Tribunal, the Corporation filed C.M.A. No. 330 of 1991 before this Court under Section 173 of the Motor Vehicles Act, 1988. V. Ratnam, J., as he then was, held that the accident must have happened only in the manner spoken to by RWs 1 and 2 and that it occurred only owing to the fall from the running bus by the appellant when he attempted to get into the bus. The learned Judge has further held that it is clearly established that the appellant had attempted to enter into the bus in motion and that too through the front entrance and had slipped down and sustained injuries and, therefore, the driver of the Corporation bus cannot be held responsible for the accident. In the result, the learned Judge allowed the appeal filed by the Corporation and dismissed M.C.O.P. No. 546 of 1988 filed by the claimant. Aggrieved by the judgment of the learned single Judge, the claimant has filed the present appeal.
3. A preliminary point was raised by the learned Counsel for the appellant that the learned single Judge has disposed of the appeal without hearing the points raised by the appellant-claimant in his Cross-Objection No. 120 of 1993, which was filed by him claiming the balance disallowed portion of the claim. Therefore, it is contended that the judgment of the learned single Judge should be set aside and the matter remitted back to a learned single Judge with a direction to hear both the appeal and the cross-objections.
4. To verify the correctness of the statement made by the learned Counsel for the appellant, we sent for the notice papers in CM. A. No. 330 of 1991 and also the cause list for 2.9.1993 of the learned single Judge. As already stated, the Corporation has filed C.M.A. No. 330 of 1991 against the award of compensation to the claimant by the Tribunal. Along with the appeal, the Corporation also filed C.M.P. No. 4934 of 1991 to stay all further proceedings in pursuance of the award of the Tribunal in M.C.O.P. No. 546 of 1988 dated 30.7.90, pending disposal of the appeal. Interim stay was granted by this Court and notice was ordered on 4.4.1991 returnable by four weeks. The notice sent to the claimant was returned with the endorsement 'no such person'. Subsequently, the claimant himself has filed vakalath in the appeal on 16.8.1991. In the appeal, two notices were returned and finally, the notice was served on the counsel for the claimant on 20.8.1993. Mr. M. Swamikkannu, counsel for the appellant-claimant has also made an endorsement in the notice paper that he received a copy of the memorandum of grounds on 20.8.1993. Immediately thereafter, the claimant filed memorandum of cross-objections within three days, i.e., on 23.8.1993-vide S.R. No. 58141 of 1993. The same was numbered as Cross-Objection No. 120 of 1993. Even in the preamble portion to the cross-objections, it has been clearly stated that the notice and the date fixed for the appeal was served on the cross-objector on 20.8.1993 and, therefore, the cross-objector files the memorandum of cross-objections under Order 41, Rule 22 of the Code of Civil Procedure.
5. It is seen from the cause list dated 2.9.1993 that C.M.A. No. 330 of 1991 alone was listed for hearing before the learned single Judge. According to the learned Counsel for the appellant-claimant, he informed the court about the filing of the cross-objections and requested the learned Judge to hear the cross-objections also along with the appeal. It is further stated that his request was not entertained by the learned Judge and the appeal alone was disposed of and the learned Judge allowed the appeal filed by the Corporation.
6. In the memorandum of grounds filed in the Letters Patent Appeal, the appellant has specifically raised the point of non-hearing of the cross-objections along with the appeal, in ground Nos. 15 and 16. Therefore, at the time of hearing, learned Counsel for the appellant prayed that an opportunity may be given to the learned Counsel for the appellant-claimant to argue the cross-objections also along with the appeal.
7. Order 41, Rule 22 of the Code of Civil Procedure reads thus:
22. (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) Such cross-objection shall be in the form of 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) Unless the respondent filed with the objection a written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof, the appellate court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
(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 pauper appeal shall, so far as they can be made applicable, apply to an objection under this rule.
8. The claimant, under this rule, is entitled to file a cross-objection within one month from the date of service on him or his pleader of the notice of the day fixed for hearing the appeal or within such further time as the appellate court may see fit to allow. This rule requires the cross-objection to be filed by the respondent in the appeal within one month from the date of service of the notice in the appeal.
9. As already noticed, the notice in the appeal was served on the counsel for the appellant-claimant on 20.8.1993. Therefore, the appellant had thirty days time from 20.8.1993, i.e., up to 20.9.1993. In this case, the claimant has filed the cross-objections within three days of service of notice in the appeal. So on the date when the appeal was taken up for hearing, i.e., on 2.9.1993, the cross-objection was very much on file. So, it is the duty of the office to post the cross-objection also along with the appeal so that the court will be able to dispose of the appeal and the cross-objections together. We are not inclined to go into the merits of the submissions made by the learned Counsel for the appellant-claimant that when he had represented to the learned single Judge that the cross-objections filed by the claimant also should be heard along with the appeal, the learned Judge had not entertained the submission made by the counsel and proceeded to dispose of the appeal alone.
10. The notice papers and other records in CM.A. No. 330 of 1991 would clearly go to show that the notice was served in the appeal on the counsel for the claimant on 20.8.1993 and he filed the cross-objections on 23.8.1993, which was taken on file on 2.9.1993. Therefore, we feel that in the interest of justice, an opportunity must be given to the claimant to hear the cross-objections filed by by him
11. In the result, we allow the Letters Patent Appeal, set aside the judgment of the learned single Judge in CM.A. No. 330 of 1991 and remit the matter to a learned single Judge of this Court to hear both the appeal and the cross-objections together and dispose of them in accordance with law. Since the claim is of the year 1988, we request the learned Judge to dispose of the matter as expeditiously as possible. No costs.