THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD MACMA NO.794 OF 2007 AND CROSS-OBJECTIONS % 19-01-2011 Between: #1. The New India Assurance Co. Ltd.rep. by its Divisional Manager, Dindigal, Tamil Nadu State & Anr. …Appellants and $ Vasireddy Sujatharani ..Respondent ! COUNSEL FOR APPELLANTS: MR. KOTA SUBBA RAO ^COUNSEL FOR RESPONDENT: MR.N.SUBBA RAO < Gist: > Head Note: ? CITATIONS: 1) 2002 (6) ALD 1 (SC) = (2002) 7 SCC 456 2) (2010) 10 SCC 341 3) (1999) 4 SCC 423 4) 2009 ACJ 2020 5) 2009 ACJ 1924 6) (2009)2 Supreme Court Cases 225 7) (1999) 1 Supreme Court Cases 90 8) AIR 2001 SUPREME COURT 485 9) (2009) 6 Supreme Court Cases 121 10) 1985-APLJ-1-1246 11) 2005 AIR SCW 1712 12) 2007 (3) ALD 531 13) 2005 ACJ 825 14) 1997 ACJ 428 15) 1997 ACJ 623 16) (2004)3 S C C 250 17) (1996) 4 SCC 362 18) 1987 ACJ 561 THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD MACMA NO.794 OF 2007 AND CROSS-OBJECTIONS Date: 19th January, 2011 Between: The New India Assurance Co. Ltd. Rep. by its Divisional manager, Mian Road, Dindigal, Tamilnadu & Anr. …Appellants and Vasireddy Sujatharani …Respondent/ Cross-objector *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD MACMA NO.794 OF 2007 AND CROSS-OBJECTIONS COMMON JUDGMENT: ( Per Hon’ble Sri Justice B.Seshasayana Reddy) This MACMA and the Cross-Objections arose out of the order dated 06.01.2005 passed in MVOP No.1270 of 2000 on the file of the Chairman, Motor Vehicles Accidents Claims Tribunal-cum-III Additional District Judge, Guntur, (for short, ‘the Tribunal’), whereby and whereunder the Tribunal allowed the petition filed under Sections 163-A and 166 of the Motor Vehicles Act, 1988, (for short, ‘the Act’) and Rule 455 of the A.P. Motor Vehicles Rules, in part and granted compensation of Rs.13,59,300/- with interest at the rate of 9% p.a. from the date of petition to the date of payment. 2. a) Vasireddy Sujatharani is the claimant in MVOP No.1270 of 2000. Vasireddy Chandraiah @ Chandraiah Naidu is her father. Her father and mother were proceeding in a Maruti Car bearing registration No.AP 9B 1566 from Kavali to Guntur. Her father was driving the Maruti Car. On nearing Chagallu village, a lorry bearing No. TDI 7677 came in high speed from opposite direction, driven in a rash and negligent manner and dashed the Maruti car. As a result, Maruti car got badly damaged, her father and mother received fatal injuries. Her father met with instantaneous death and whereas, her mother succumbed to the injuries while undergoing treatment in the Government Hospital, Kavali. Her father was a Reader and Head of Department of Commerce in Jawahar Bharathi Degree College, Kavali. He was earning Rs.24,200/- per month. He did P.Hd. in Commerce. A case in Crime No.76 of 2000 came to be registered against the driver of the lorry by the Station House Officer, Ulavapadu P.S. P.Yasoda Rani is the owner and the New India Insurance Company Limited is the insurer of the offended lorry. The owner and the insurer are liable to pay the compensation claimed by her jointly and severally. As on the date of accident, she was pursuing MBBS course. According to her, had her father alive, there would have been hike in his salary because of the revision of pay scales. She claimed compensation of Rs.20,00,000/- for the untimely death of her father in the road accident. b) The owner of the offended lorry remained ex parte. c) The insurer filed counter resisting the claim of the claimant. The insurer pleaded that the accident occurred due to rash and negligent driving of the Maruti Car by the deceased himself. The claimant did not implead the owner and insurer of the Maruti car and therefore, application is bad for non-joinder of necessary parties. The insurer further pleaded that the quantum of amount clamed by the claimant is on high side. The liability of the insurer is governed by the provisions of the Act and terms and conditions of the policy. d) The Tribunal framed the following issues for trial: i) Whether the accident occurred due to rash and negligent driving of the driver of lorry bearing No. TDI 7677 ? ii) Whether the petitioner is entitled to compensation and if so, to what amount and against whom? iii) To what relief? e) On behalf of the claimant, she got herself examined as PW.1 besides examining two more witnesses as PWs.2 and 3, and marked 6 documents as Exs.A1 to A6. On behalf of the insurer, neither ocular nor documentary evidence was adduced. f) The Tribunal, on considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the accident occurred due to rash and negligent driving of the driver of the lorry bearing No.TDI 7677 and that the claimant is entitled to Rs.13,54,300/- as compensation for the death of her father in road accident occurred on 15.10.2000 and that P.Yasoda Rani being the owner and the New India Insurance Company Limited being the insurer of the offended lorry are liable to pay compensation jointly and severally. Accordingly, allowed the O.P. in part, by order dated 06.01.2005. 3. The insurer filed MACMA No.794 of 2007 under Section 173 of the Act questioning the very grant of compensation and whereas, the claimant filed cross-objections under Order 41, Rule 22 of CPC, dis- satisfied with the quantum of compensation. 4. Since the appeal and the cross-objections arose out of the same order, they were heard together and are being disposed of by this common judgment. 5. The parties hereinafter referred to as the claimant and the insurer. At the cost of repetition, we may state that the insurer filed MACMA No.794 of 2007 under Section 173 of the Act and whereas, the claimant filed cross-objections under Order 41, Rule 22 of CPC. 6. Heard learned counsel appearing for the parties. 7. Learned counsel appearing for the insurer submits that the Tribunal over-compensated the claimant and the quantum of amount awarded by the Tribunal to the claimant is irrational and therefore, the quantum of compensation is to be reduced considerably. 8. In a way his contention is that the claimant is the daughter of the deceased and she got married within few months of the date of the accident, and thereby, she became the member of her husband’s family and in which case loss of dependency due to the death of her father has become minimal. Expectancy of the period of dependency is also one of the factors in assessing the quantum of compensation. However, the learned counsel does not dispute the fact that the insurer had not filed any application before the tribunal under Section 170 of the Act seeking leave to take defences other than those available to the insured under sub-section (2) of Section 149 of the Act. Therefore, in view of the ratio laid down in National Insurance Company Ltd. V. Nicolleta Rohtagi[1], the appeal preferred by the appellant/insurer questioning the quantum of compensation without obtaining permission under Section 170 of the Act is not maintainable. Thus, the appeal filed by the Insurer is liable to be dismissed as not maintainable. 9. Learned counsel appearing for the claimant vehemently argued that the compensation granted by the Tribunal is not fair and reasonable and therefore, the compensation granted by the Tribunal is required to be enhanced considerably. He would also contend that even though the claimant got married within few months after the death of her father, it does not have any effect so far as loss of dependency is concerned. In a way, his contention is that the Tribunal has to decide what is the loss of estate and then award the same to the claimant as compensation, since she is the sole surviving legal heir to her deceased father. A further contention has been advanced that there is no distinction between compensation and damages and the expression `compensation’ may include a claim for damages and compensation is more comprehensive and in the matter of compensation, the approach will be slightly more broad-based than what is done in the matter of assessment of damages. In support of his submissions, reliance has been placed on the following decisions:- 1) Yadava Kumar v. National Insurance Co. Ltd.[2] 2) Superintending Engineer v. B.Subba Reddy[3] 3) Ningamma v. United India Insurance Co. Ltd.[4] 4) R.K.Malik vs. Kiran Pal[5] 5) Syed Basheer Ahamed v. Mohd. Jameel[6] 6) Helen C.Rebello (Mrs) and others v. Maharashtra State Road Transport Corporation[7] 7) S.Kaushnuma Begum v. The New India Assurance Co. Ltd.[8] 8) Sarla Verma v. DTC[9] 9) A.S.Papanna Dikshitulu v. His Holiness Sriman Perika Koil Kelvi Appan Sri Sundararamanuja Pedda Jeeyangar, Tirupathi[10] 10) Hari Shankar Rastogi v. Sham Manohar[11] 10. It is trite to note at this stage that father and mother of the claimant died in the accident. She filed two claim petitions – one claiming compensation for the death of her mother and another claiming compensation for the death of her father. 11. The issues that calls for adjudication in these proceedings are:- 1) Whether the cross objections filed by the claimant once the appeal filed by the insurer is not maintainable survives for adjudication? 2) Whether the claimant made out any valid ground for enhancement of the compensation awarded by the tribunal? ISSUE NO.1: 12. Learned counsel appearing for the insurer submits that Order 41, Rule 22 CPC is not applicable to the proceedings initiated under the provisions of the Motor Vehicles Act, 1988 as amended in the year 1994. In support of his contentions, reliance has been placed on the following judgments: 1) Branch Manager, New India Assurance Co. Ltd v. Are Ramulu @ S.Ramulu & Anr.[12]; 2) United India Insurance Co. Ltd. v. Dasari Lakshmi & Ors.[13]; 3) Vaidyanath Singh v. Gulabkali & Ors.[14] 4) New India Assurance Co. Ltd. V.Kehro Devi & Ors.[15] 13. I n Branch Manager, New India Assurance Co. Ltd v. Are Ramulu @ S.Ramulu & Anr.’s case (12 supra), learned Single Judge of this Court has dealt with the same issue and observed as hereunder: “Now the point for consideration is whether the cross-objections are maintainable? The contention of the learned counsel for the appellant is that the question raised by the learned counsel for respondent is not res integra, because in Ashok Kohli v. Prakash Chand and others, AIR 1996 MP 50, it is held that the cross-objections cannot be maintained when the appeal itself is not maintainable. In that case, it was held that the right to prefer cross- objections is a contingent right and the contingency would arise only if an appeal is filed by the other side after fulfilling all the statutory conditions, and for cross-objections to survive, there must be an appeal which is maintainable and which survives for decision, and that cross-objections would survive the appeal either when it is withdrawn or is dismissed for default but if the appeal itself is not maintainable, the 'default' will have no role to play and the 'withdrawal' would also not be of any avail, as the appeal would be dismissed for not being maintainable, and when a party who has a right to appeal, does not prefer the same and waits for the adversary to file appeal and then to take a cross-objection, runs the risk of availing the qualified alternative remedy on the maintainability of the appeal preferred by the adversary, and so, mere filing of cross-objections does not ipso facto invest in the respondent an independent right of being heard on cross-objections. In this case, the appeal is being dismissed as not maintainable. So, as per the ratio in the above decision, question of cross-objections surviving does not arise. Unfortunately, the Tribunal without mentioning as to what amount it is awarding under what head, just awarded the consolidated amount of Rs.1,50,000/- to the first respondent. From the evidence on record, I am of the opinion that the compensation awarded by the tribunal is more than just and reasonable compensation payable to the respondent, If a correct appraisal is made, respondent would have been entitled to lesser compensation than that was awarded by the Tribunal. So, it cannot be said that the compensation awarded by the Tribunal also is not adequate. For that reason also, I find no merits in the cross-objections.” 14. In United India Insurance Co. Ltd. V. Dasari Lakshmi & Ors.’s case (13 supra), the learned single Judge of this Court while dealing with an appeal filed under Section 30 of the Workmen’s Compensation Act, 1923, has observed that none of the provisions of Section 30 provides for or otherwise authorize any of the aggrieved parties to file any cross-objections in a C.M.A. that will be filed by the other aggrieved party. 15. In Vaidyanath Singh v. Gulabkali & Ors.’s case (14 supra), the Madhya Pradesh High Court has observed that there is no provision in the Motor Vehicles Act (old or new) for filing cross-objections in an appeal preferred against the award of the Claims Tribunal. Order 41, Rule 22 of the Code of Civil Procedure has no application to the Motor Vehicles Act. Therefore, cross objections filed by the claimants in an appeal filed by the Insurer are not maintainable. 16. In New India Assurance Co. Ltd. v. Kehro Devi & Ors.’s case (15 supra), the Himachal Pradesh High Court at Shimla has held that the memorandum of cross-objections of the claimant in an appeal filed by the Insurance Company is not maintainable. Para.4 of the cited judgment reads as hereunder: “The memorandum of cross-objection is not maintainable inasmuch as this appeal is filed only by the assurance company and not by the owner of the vehicle or the driver. It has been held recently by a Division bench of this Court in National Insurance Co. Ltd. V. Rukmani Devi, F.A.O. (MVA) No.88 of 1988 with Cross-Objection No.24 of 1989, to which one of us was a party (P.K.Palli, J.) that such cross-objection is not maintainable. The Division Bench has rendered its judgment on 4.9.1996. They placed reliance on a judgment of the Kerala High Court in Oriental Insurance Co. Ltd. v. Sreedharan, I (1996) ACC 429 and that of the Madras High Court in United India Insurance Co. Ltd. v. M.R.Subramanian, 1996 ACJ 1260 (Madras). We agree with the view expressed by the Division Bench and hold that the cross-objection in this case is not maintainable. Hence, the cross-objection is dismissed. The appeal is allowed to the extent indicated above. There will be no order as to costs.” 17. Learned counsel appearing for the claimant contends that despite the withdrawal of the appeal or dismissal of the appeal for default, cross-objections are required to be adjudicated on merits. In a way, his contention is that the cross-objections survive despite the appeal being not maintainable. In support of his submission, reliance has been placed on a judgment of this Court in A.S.Papanna Dikshitulu v. His Holiness Sriman Perika Koil Kelvi Appan Sri Sundararamanuja Pedda Jeeyangar, Tirupati & Ors.( 10 supra). 18. In the above case, the appeal was filed under Order 41 CPC. Whereas, cross-objections were filed under Order 41, Rule 22 CPC. Sub-rule (4) of Rule 22 obligates the appellate authority to hear the cross-objections despite the appeal being withdrawn. For better appreciation, we may refer sub-rule (4) of Rule 22 of Order 41 CPC, which reads as hereunder: “(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.” 19. Coming to the facts of the case on hand, the appeal is filed by the insurer under Section 173 of the Motor Vehicles Act. Section 173 of the Motor Vehicles Act, reads as hereunder: “173. Appeals.--- (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 be against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.” A plain reading of the above referred provision does not indicate of the sustainability of the cross-objections in the event of appeal filed by the insurer found to be not maintainable. 20. Under Rule 473 of the Andhra Pradesh Motor Vehicles Rules, 1989, only limited provisions of the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908) are made applicable to the proceedings initiated before the Claims Tribunal. For better appreciation, we may refer Rule 473 of the A.P.Motor Vehicles Rules, 1989, which read as hereunder:- “473. Code of Civil Procedure to apply in certain cases:- The following provisions of the First Schedule to the Code of Civil Procedure, 1908 (Central Act 5 of 1908), shall so far as may be, apply to proceedings before the Claims Tribunal namely, Order V, Rules 9 to 13 and 15 to 30; Order IX, Order XIII, Rules 3 to 10; Order XVI, Rules 2 to 21; Order XVII and Order XXVIII, Rules 1 to 3.” 21. A question came up for consideration before the Supreme Court in Superintending Engineer V. B.Subba Reddy (3rd supra) with regard to the maintainability of the cross objection in an appeal filed under Section 39 of the Arbitration Act, 1940. Before quoting the proposition of law laid down in the above-referred case, few facts of the cited case need to be noted. An agreement was entered into between the appellant and the respondent for execution of the work called “providing lining to bed and side slopes of Pamidipadu Branch Canal of N.S. Canals from KM 0-0-008 to 1-00-004 KM”. Four separate agreements were entered into. Disputes arose and they were referred to the sole arbitrator who gave separate awards dated 18.4.1986 in respect of each of the agreements. The arbitrator directed payment of interest at the rate of 18% per annum on the amounts so awarded. The Civil Court, i.e., Principal Subordinate Judge Court reduced the award of interest from 18% P.A to 12% P.A. But for reduction of rate of interest, the Civil Court made all the four awards the rule of the Court and passed decrees in terms thereof. The respondent did not challenge the grant of interest at the lower rate of 12% per annum by the Civil Court by filing an appeal against the judgment making the awards the rule of law. It was the appellant who appealed to the High Court against the judgment of the Civil Court. Notice of appeal was served on the respondent. He filed cross- objection under Order 41 Rule 22 of the Code of Civil Procedure challenging the judgment of the Principal Subordinate Judge, whereby the award of interest was interfered with. The High Court while dismissing the appeals allowed the cross-objections and restored the award of interest at the rate of 18% per annum as given by the arbitrator. The appellant contended before the Supreme Court that the High Court could not do so as cross-objections were not competent in the appeal filed by the appellant under Section 39 of the Act. Whereas the respondent contended that since the provisions of the Code of Civil Procedure are applicable to the appeal filed under Section 39 of the Act, cross objection filed under Order 41 Rule 22 is maintainable. The Supreme Court referred Sections 39 and 41 of Arbitration Act, 1940 and observed as hereunder:- “( 23 ) FROM the examination of these judgments and the provisions of S. 41 of the Act and Order 41, Rule 22 of the Code, in our view, following principles emerge : (1) Appeal is a substantive right. It is creation of the statute. Right to appeal does not exist unless it is specifically conferred. (2) 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 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well. (3) Court-fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by indigent person also apply to cross-objection. (4) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined. (5) Respondent even though he has not appealed may support the decree on any other ground but if wants to modify it, he has to file cross-objection to the decree which objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the Court like in appeal. (6) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give quietus to whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order. ( 24 ) IN the present case, as noted above, the respondent did not file any appeal under Section 39 of the Act in the High Court which right he admittedly had when the award of interest @ 18% per annum was reduced to 12% per annum by the trial Court. Section 41 of the Act is merely procedural in nature. If there is no right of cross-objection given under Section 39 of the Act, it cannot be read into Section 41 of the Act. Filing of cross-objection is not procedural in nature. Section 41 of the Act merely prescribes that procedure of the Code would be applicable to the appeal under Section 39 of the Act. We are, therefore, of the opinion that cross-objection by the respondent was not maintainable and the High Court was not correct in holding otherwise and restoring the award of interest to 18% per annum and, thus, interfering in the decree of the trial Court. ( 25 ) WE would, therefore, set aside the award so far it grants damages by way of interest at the rate of 15% per annum on the amount found due to the respondent for the period prior to the date of reference. We would further restore the award of interest at the rate of 12% per annum as decreed by the trial Court.” 22. In the cited case, the Supreme Court held that the Statute has to provide for filing cross objections. In the absence of any provision entitling the respondent to file cross objection, the same is not maintainable. I n Municipal Corporation of Delhi and others v. International Security & Intelligence Agency Ltd.[16], a question came up for consideration as to what happens to cross-objections if the appeal itself is found to be incompetent or