FA/931/1999 1/14 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 931 of 1999 WITH CROSS-OBJECTION NO. 340 OF 1999 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE SHARAD D.DAVE =============================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =============================================== MAHOHARSINHJI R JADEJA & Another. Versus BHAVNABEN ASHOKBHAI RAYA & Others. =============================================== Appearance : MR RAJNI H MEHTA for the Appellants. MR MD PANDYA for respondents Nos. 1 to 4. RULE SERVED for Respondent no.5. RULE SERVED BY DS for Respondent No. 6. =============================================== CORAM : HONOURABLE MR. JUSTICE A. L. DAVE and HONOURABLE MR. JUSTICE S. D. DAVE Date : 14/05/2008 FA/931/1999 2/14 JUDGMENT ORAL JUDGMENT : (Per : A. L. DAVE, J.) 1. This appeal arises out of a judgment and award rendered by Motor Accident Claims Tribunal (Main), at Rajkot, on 24th December, 1998, in Motor Accident Claim Case No.1141 of 1996 (M. A. C. Case No.66 of 1995 of Surendranagar). The said Claim Case was preferred by present respondents No.1 to 4 against the present appellant and respondents No. 5 and 6 claiming a compensation of Rs.50 lakh for death of Ashokbhai Rajendrabhai Raya in a vehicular accident which occurred on 20th September, 1994, at about 11.45 A.M., near Hotel Darshan on Rajkot – Ahmedabad Highway involving luxury bus bearing registration No.GJ3-AT-9678 and Maruti Car bearing registration No.GJ11-313. 1.1 For sake of convenience, respondents No. 1, 2, 3 and 4 in the appeal are referred to as “the claimants”, whereas the appellant and respondents No.5 and 6 are referred to as “the opponents” in this judgment. 1.2 On notice of appeal being served, the original claimants have preferred cross-objections, which are also heard and decided today by us along with the appeal. 2. According to the claimants, deceased Ashokbhai Rajendrabhai Raya, aged about 36, was driving his Maruti Car No. GJ11-313 from Rajkot to Ahmedabad. When he reached near the place of incident at about 11.45 A.M. on 20th September, 1994, opponent No.1 approached the said spot driving luxury bus FA/931/1999 3/14 JUDGMENT bearing No.GJ-3T-9698 at an excessive speed in a rash and negligent manner and dashed with the motor car, resulting into a serious accident wherein the deceased suffered fatal injuries and died on the spot. According to the claimants, the accident was the result of gross negligence on the part of the driver of the bus and he was, therefore, solely responsible for the accident and primarily liable to pay compensation to the claimants. The said bus was owned by opponent No.2-present appellant and, therefore, he would be vicariously liable to pay compensation and original opponent No.3 had insured the said bus and, therefore, would be liable to indemnify the driver and owner or to pay the compensation to the claimants as indemnifier. 2.1 According to the claimants, the deceased was aged 36 years. Claimant No.1 lost her husband at a very young age and claimants No.2 and 3 lost their father at a very tender age. According to the claimants, claimant No.4 lost her son at her advanced age. The father of the deceased had also joined the petition as one of the claimants. However, he died pending the petition and his name came to be deleted as such. 3. The deceased was in the profession as an Income Tax Practitioner and he had studied upto B.Com., LL.B. He was working as a partner with M/s Ish Export since 1992 and his income per year was about Rs.5 lakh. He had a very bright future FA/931/1999 4/14 JUDGMENT and his income would have further increased. 4. Original opponents No.1 and 2, i.e. driver and owner, though were duly served, chose not to file any written statement, not to appear before the Tribunal and not to contest the claim petition. Original opponent No.3, the insurer of the bus, filed written statement at Exhibit 11 and resisted the claim contending, inter alia, that the claim petition is not legal and bona fide and merits dismissal. The written statement was more or less in the form of denials. It was also contended that the accident was the result of rash and negligent driving on the part of the deceased himself, who was driving the Maruti Car and, by way of an alternative plea, it was pleaded that there was greater negligence on the part of the deceased, which resulted into the accident. 5. The Tribunal, after considering the evidence on record, came to a conclusion that both the drivers had contributed to the cause of accident and held that the deceased had contributed 30 per cent towards the cause of accident whereas the driver of the bus was responsible to the extend of 70 per cent of the mishap. The Tribunal then held that the claimants were entitled to a total compensation of Rs.13 lakh and, after deducting 30 per cent therefrom on account of contributory negligence on the part of the deceased, the claimants would be entitled to a net compensation of Rs.9,10,000/- with proportionate costs and interest on that amount FA/931/1999 5/14 JUDGMENT at the rate of 15 per cent from the date of application till satisfaction of the amount. 6. The appeal came to be filed by original opponent No.2, the owner of the bus and original opponent No.3, the insurer of the bus, jointly. However, with the development of law, this Court was moved seeking permission to transpose appellant No.2, the insurer, as respondent No.6, for which permission was granted by the Court by order dated 13th February, 2008 and, as such, now, appellant is only one, namely, the owner of the vehicle, original opponent No.2 before the Tribunal. Respondents No. 1 to 4-original claimants have filed cross-objections contending, inter alia, that the awarded amount is not just but is assessed very conservatively and is on the lower side. 7. We have heard learned Advocate, Mr. R. H. Mehta, for the appellant and learned Advocate, Mr. M. D. Pandya, for the original claimants. We also have before us the record and proceedings, which we have considered in light of rival side contentions. 8. Much has been argued by both the sides on merits of their respective cases, but a contention has been raised that the appeal by the owner of the bus alone cannot be entertained in the facts of the present case and, in counter, it is contended that, if the FA/931/1999 6/14 JUDGMENT appeal is not maintainable, the cross-objections also cannot be entertained. 9. We, therefore, propose to deal with these contentions first. It is a matter on record that the appeal was originally preferred jointly by the owner of the bus and the insurer of the bus. However, later on, the insurer has been transposed as respondent No.6. The appeal, therefore, remains only by the owner of the bus. It is also a fact not in dispute that the insurer does not have any statutory defence or contention to raise in the appeal envisaged under Section 149(2) of the Motor Vehicles Act and, therefore, could not have preferred the appeal on merits as a solo appellant. 9.1 It is also a matter on record that the appellant, owner of the bus, had chosen not to contest the claim petition before the Tribunal and had not even filed any written statement and he, therefore, is not competent to challenge the award on merits by preferring an appeal. It is a settled proposition of law that an Insurance Company can prefer an appeal only on the grounds available to it under Section 149(2) of the Motor Vehicles Act or can prefer an appeal on merits only if it was granted a permission under Section 170 of the Motor Vehicles Act to contest the claim with wider defence. The Insurance Company got transposed as respondent No.6 and the appeal, therefore, remains only of the owner of the bus. Now, the question, therefore, would be whether FA/931/1999 7/14 JUDGMENT the appeal can be heard on merits and whether the owner of the vehicle can challenge the award of the Tribunal on merits in an appeal. The answer has to be in negative for the reason that the appellant, the owner of the bus, chose not to file any written statement before the Tribunal nor to contest the claim petition in any manner. In this regard, we may refer to the decision in the case of United India Insurance Company Ltd. v. Shilpa Jagdishbhai alias Jignesh Patel and Others, 2005(2) GLR 1784, where in a similar situation, the Court held that the owner of the vehicle, having not to filed written statement nor having appeared before the Tribunal, cannot challenge the award on merits. 10. We are, therefore, of a considered view that the appeal is not competent it having been preferred by the owner of the vehicle, who did not contest the claim petition before the Tribunal and was, therefore, not competent to challenge the award in appeal on merits. The appeal, therefore, has to fail. 11. The next question that arises for our consideration is that, if the appeal is not competent, whether the cross-objections filed by the original claimants can be entertained and heard on merits. In this regard, it was vehemently argued by learned Advocate, Mr. Mehta, for the appellant that the cross-objections must fall in light of decision in the case of Chanchalgauri FA/931/1999 8/14 JUDGMENT Ramanlal and Others v. Narendrakumar Chandulal and Others, AIR 1986 Gujarat 55 and the decision of the Apex Court in the case of Municipal Corporation of Delhi and Others v. International security & Intelligence Agency Ltd., (2004) 3 Supreme Court Cases 250. 11.1 On the other hand, it is vehemently contended by learned Advocate, Mr. Pandya, that those decisions will not apply to the facts of the present case for the reason that, in those cases, the appeals were held to be not maintainable or incompetent, whereas, in the instant case, the appeal cannot be considered as not maintainable but has to be dismissed for the reason that the owner had not contested the claim petition before the Tribunal. 12. It is a settled legal position that cross-objections are more or less in the form of a cross-appeal and can be preferred on service of notice of appeal by the other side. The appeal is required to be preferred within the stipulated time limit. But, if that appeal is not preferred and the notice of the appeal by the other side is served, then the respondent gets an extended right of challenging the award on the same grounds on which he could have challenged the decree or award by way of filing an appeal by preferring cross- objection. 13. The Apex Court, while addressing this question, has FA/931/1999 9/14 JUDGMENT observed that sub-rule (4) of Rule 22 of Order XLI of the Code of Civil Procedure provides for only two situations in which the cross- objection may be heard in respect of original appeal having not been heard on merits. These situations are (1) the original appeal being dismissed as withdrawn and (2) the original appeal being dismissed for default (default in appearance or any other default). The Court held that if the Appellate Court forms an opinion that the original appeal itself was incompetent or not maintainable as it was filed against an order not falling within clauses (i) to (vi) of sub- section (1) of Section 39 (of the Arbitration Act), then the cross- objections also fall to the ground and cannot be adjudicated upon merits. It has to be remembered that the law of limitation operates with all its rigour and equitable considerations are out of place in applying the law of limitation. The cross-objector ought to have filed appeal within the prescribed period of limitation calculated from the date of order, if he wished to do so. Having allowed that opportunity to lapse, he gets another extended period of limitation commencing from the date of service of notice of the appeal enabling him putting in issue for consideration of the Appellate Court the same grounds which he could have otherwise done by way of filing an appeal. The Apex Court further held that, if the appeal cannot be heard on merits for the reason that it was no appeal in the eye of law, service of notice of such appeal would not furnish cause for commencement of a new period of limitation for filing appeal in the form of cross-objection. The Apex Court also FA/931/1999 10/14 JUDGMENT observed clearly that the only exception in which cross-objection can still be heard is one where the memo of cross-objection can be said to have been filed within the period prescribed for filing an original appeal against the impugned order and the memo also independently satisfies all the requirements of a memo of appeal. [Municipal Corporation of Delhi & Ors. v. Industrial Security & Intelligence Agency (supra)] 14. Now, therefore we have to examine whether the cross- objections can be rejected on ground of failure of appeal. For this, we will have to examine whether the failure of appeal is a failure on merits or otherwise. 15. The appeal is preferred by the appellant, who was opponent No.2 before the Tribunal. He was served with a notice/summons, but he chose not to appear before the Tribunal, not to file any written statement and not to contest the claim petition. He, now, proposes to challenge the award of the Tribunal on merits which, in our view, he is not competent to do . 16. We may refer to decision in the case of Dhani Ram v. Sushila Devi, AIR 1977 HP 83, which has been referred to by the Apex Court in the case of Municipal Corporation of Delhi (Supra), wherein it was held that though order XLI Rule 22 speaks of an appeal, it contemplates a valid appeal which ordinarily calls for FA/931/1999 11/14 JUDGMENT consideration on merits. In the instant case, the appeal cannot be said to be one which would call for consideration on merits. This is an appeal by a party who did not contest the claim petition at the trial before the Tribunal and, therefore, cannot be heard on merits. 16.1 It is not possible to accept the contention raised by learned Advocate, Mr. Pandya, that appeal by the appellant is valid, but it is dismissed on merits because the appellant had not filed any written statement and had not contested the claim petition before the Tribunal. As stated above, if the appellant did not contest the petition before the Tribunal, he loses his competence to challenge the award on merits by preferring an appeal and the appeal, therefore, becomes incompetent. The failure of appeal is not on merits but on incompetence of the appellant to challenge the award on merits. The situation is somewhat similar to one where an appeal by insurer would fail for want of permission of the Tribunal to contest the claim petition on all grounds as envisaged under Section 170 of the Motor Vehicles Act. Such appeal is held to be incompetent by the Supreme Court in Shankarayya and Another v. United India Insurance Company and Another, (1998) 3 SCC 140 and National Insurance Company v. Nicolletta Rohtagi and Others, 2002 ACJ 1950. There the appeal would fail as the insurer failed either to prefer an application under Section 170 of the Motor Vehicles Act. Here the appeal fails because the appellant failed to contest the claim petition before the Tribunal. FA/931/1999 12/14 JUDGMENT 16.2 We are, therefore, of a considered view that the cross- objections also must fall because of failure of an appeal, which fails on aspect of competency. 17. Since we have come to a conclusion that both the appeal and the cross-objections are not maintainable, we do not propose to deal with the contentions raised before us by the learned Advocates on merits of the cross-objections. However, to complete the record, we narrate the submissions made by the learned Advocates on cross-objections. 17.1 Learned Advocate, Mr. Pandya, submitted that the Tribunal has erred in fastening 30 per cent responsibility for the cause of accident on the deceased because the claimants have not pleaded no negligence on the part of the driver of the car nor is there any evidence to that effect. No eye-witness has been examined. The bus driver has chosen not to depose before the Tribunal nor to file any written statement and the decision of the Tribunal is founded mainly on the Panchnama, etc. According to Mr. Pandya, the principle of res ipsa loquitur would be applicable to the facts of the present case, which would show that the deceased- driver of the car was not negligent in any way. By way of an alternative submission, he submitted that still greater negligence ought to have been attributed to the driver of the bus because he FA/931/1999 13/14 JUDGMENT was driving a vehicle which was a larger vehicle and such driver owes greater degree of care and caution towards other vehicles as well as passengers of the bus. 17.2 Mr. Pandya submitted that the Tribunal has also erred in assessing the income of the deceased. He submitted that it is true that the income-tax returns have been filed posthumously, but if they are seen, they reflect contemporaneous material in the form of tax deductions at source as well as investments being made by the deceased. The rise in income is slow and gradual, which could have been shown much more steeper, but that has not been done. All these aspects have been overlooked and, therefore, the award of the Tribunal may be accordingly modified. 18. Mr. Mehta for the original appellant, while opposing the cross-objections, submitted that the F. I. R., which is on record, if considered, would show how the accident occurred and who could have been more responsible for the mishap. Mr. Mehta submitted that all returns have been filed posthumously. The deceased was shown to be earning from a partnership firm, but if the document is seen, name of the deceased is not found. He also submitted that no assessment order in respect of income-tax returns have been produced. According to him, in fact, the Tribunal has adopted a liberal approach and has assessed the income on higher side. Mr. Mehta submitted that an Advocate could not have been partner in FA/931/1999 14/14 JUDGMENT any firm as per law and, as such, could not have earned from such a business. 19. To sum up, we may state that the appeal is found to be not competent and stands dismissed. Since the appeal is found to be not competent, the cross-objections also must fail and stand dismissed. There shall be no order as to costs. [ A. L. DAVE, J. ] [ S. D. DAVE, J. ] gt