URMILA DEVI & ORS. versus BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD. & ANR.
[2020] 3 S.C.R. 498, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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URMILA DEVI & ORS.
v.
BRANCH MANAGER, NATIONAL INSURANCE
COMPANY LTD. & ANR.
(Civil Appeal No. 838 of 2020)
JANUARY 30, 2020
[S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]
Motors Vehicles Act, 1988 – s.173 – Appeal – Cross objections
– Maintainability of – Husband of claimant-appellant no.1 (who
was also father of appellant nos.2-4 & son of appellant no.5) met
with accident – MACT directed Insurance Company to pay
Rs.2,47,500/- to the claimants – Appeal filed by Insurance Company
before High Court was dismissed in default – Cross objection filed
therein by the appellants was dismissed as not maintainable – Held:
In view of r.249 of 1992 Motor Vehicle Rules, the High Court rightly
held that the claimants were entitled to file cross-objection – However,
it restricted said right to file objection only when an appeal is filed
by the insurance company challenging the quantum of compensation
and not just its liability to pay compensation as in the present case
– s.173 provides that any person aggrieved by an award of a Claims
Tribunal, subject to Sub-s.(2) thereof, may prefer an appeal to High
Court – r.249(3) shows that save as provided in sub-rules (1) and
(2), the provisions of Or.XLI and Or.XXI, CPC shall apply mutatis
mutandis to appeals preferred to the High Court u/s.173 – Conjoint
reading of s.173; r.249 and Or. XLI, r.22 reveals that there is no
restriction on the right to appeal of any of the parties – Any
party
aggrieved by any part of the award would be entitled to prefer an
appeal – Thus, any respondent, though he may not have appealed
from any part of the decree, apart from supporting the finding in
his favour, is also entitled to take any cross-objection to the decree
which he could have taken by way of appeal – Further, r.22(4) of
Or. XLI specifically provides that even if original appeal is withdrawn
or dismissed for default, the cross-objection would nevertheless be
heard and determined – Therefore, even if the appeal of the
Insurance Company was dismissed in default and it was not
interested to revive the appeal, still the High Court was required to
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decide the cross-objection of appellants on merits – Impugned
judgment set aside – Matter remitted to High Court for deciding the
cross-objection on merits – Code of Civil Procedure, 1908 – Or.
XLI, r.22; Or.XXI – Bihar Motor Vehicle Rules, 1992 – r.249 –
Arbitration Act, 1940 – s.39.
Allowing the appeal, the Court
HELD: 1.1 In view of Rule 249 of the Bihar Motor Vehicle
Rules, 1992, the High Court has rightly come to a conclusion
that the claimants would be entitled to file a cross-objection.
However, it restricted the right of the claimants to file cross-
objection only when an appeal is filed by the Insurance Company
challenging quantum of compensation. It held, that when the
Insurance Company has not challenged the quantum of
compensation but only challenges its liability to pay compensation
on the ground that there is a breach of terms and condition by
the driver and/or the owner of the vehicle, the cross-objection
would not be tenable at the instance of the claimants. Section
173 of the M.V. Act provides, that any person aggrieved by an
award of a Claims Tribunal, subject to the provisions of sub-section
(2) thereof, may prefer an appeal to the High Court. The restriction
imposed under Sub-s. (2) of Section 173 is with regard to non-
filing of appeal against any award of a Claims Tribunal if the amount
in dispute in the appeal is less than ten thousand rupees. The
single judge of the High Court himself observed that in view of
Rule 249, Bihar Motor
Vehicle Rules, 1992, there cannot be any
issue with regard to the tenability of the cross-objection. Sub-
rule (3) of Rule 249 of the Bihar Motor Vehicle Rules, 1992 would
show, that save as provided in sub-rules (1) and (2), the provisions
of Order XLI  and Order XXI in First Schedule to the CPC shall
apply mutatis mutandis to appeals preferred to the High Court
under Section 173 of the M.V. Act. A conjoint reading of the
provisions of Section 173 of the M.V. Act; Rule 249 of the Bihar
Motor Vehicle Rules, 1992; and Order XLI rule 22 of the CPC
would reveal, that there is no restriction on the right to appeal of
any of the parties. It is clear, that any party aggrieved by any part
of the Award would be entitled to prefer an appeal. It is also clear,
that any respondent, though he may not have appealed from any
part of the decree, apart from supporting the finding in his favour,
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is also entitled to take any cross-objection to the decree which
he could have taken by way of appeal. [Paras 15, 22-24][505-D-
E; 511-E-G]
1.2 When in an appeal the appellant could have raised any
of the grounds against which he is aggrieved, the Court fails to
understand, as to how a respondent can be denied to file cross-
objection in an appeal filed by the other side challenging that
part of the Award with which he was aggrieved. The said
distinction as sought to be drawn by the High Court is not in tune
with conjoint reading of the provisions of Section 173 of the M.V.
Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order
XLI rule 22 of the CPC. It could be seen from the prayer clause
in the appeal preferred by the respondents (Insurance Company)
before the High Court that the entire award was challenged by
the respondents-Insurance Company. Not only that, but the
appellants (the claimants) were also impleaded as party
respondents to the said appeal. In such circumstances, the High
Court erred in declining to consider the cross-objection of the
appellants herein (the claimants) on merits. Sub-rule (4) of Rule
22 of Order XLI of the CPC specifically provides, that even if the
original appeal is withdrawn or is dismissed for default, the cross-
objection would nevertheless be heard and determined after such
notice to the other parties as the Court thinks fit. Therefore,
even if the appeal of the Insurance
Company was dismissed in
default and the Insurance Company had submitted that they were
not interested to revive the appeal, still the High Court was
required to decide the cross-objection of the appellants herein
on merits and in accordance with law. [Paras 25-27][512-C-G]
1.3 The impugned judgment and order is quashed and set
aside. The matter is remitted back to the High Court for deciding
the cross-objection filed by the present appellants on its own
merits. [Para 28][512-H; 513-A]
Municipal Corporation of Delhi & Ors. v. International
Security & Intelligence Agency Limited (2004) 3 SCC
250 : [2003] 1 SCR 951; Bhadurmal v. Bizaatunnisa
Begum AIR 1964 AP 365; Inayatullah Khan v.
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Diwanchand Mahajan AIR 1959 MP 58; Ramasray
Singh & Ors. v. Bibhisan Sinha AIR 1950 Cal 372;
Baru Ram v. Prasanni AIR 1959 SC 93 : [1959] SCR
1403; Superintending Engineer & Ors. v. B. Subba
Reddy (1999) 4 SCC 423 : [1999] 2  SCR   880 –
referred to.
Case Law Reference
[2003] 1 SCR 951
referred to
Para 16
AIR 1964 AP 365
referred to
Para 19
AIR 1959 MP 58
referred to
Para 19
AIR 1950 Cal 372
referred to
Para 19
[1959] SCR 1403
referred to
Para 20
[1999] 2 SCR 880
referred to
Para 20
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 838 of
2020.
From the Judgment and Order dated 21.01.2016 of the High Court
of Judicature at Patna in Miscellaneous Appeal No. 521 of 2011.
Shivam Singh, Rohit Kumar Singh, Harpreet Singh Gupta, Guru
Sharan Maurya, Animesh Kumar, Sumit Kumar, Rana Prashant, Neeraj
Shekhar, Advs. for the Appellants.
Ashok Kumar Sharma, Sr. Adv., Parmanand Gaur, Kshitij Mudgal,
Ekansh Bansal, Akhil Sharma, Advs. for the Respondents.
JUDGMENT
The following Judgment of the Court was delivered :
1. Leave granted.
2. Heard the learned counsels for the parties.
3. The present appeal challenges the judgment and order dated
21.01.2016 passed by the learned single judge of the High Court of Patna
in Miscellaneous Appeal No.521 of 2011 thereby, holding the cross-
objection of the claimant to be not maintainable.
4. The facts, bare necessary, for decision of the present appeal,
are as under:
URMILA DEVI & ORS. v. BRANCH MANAGER, NATIONAL
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5. On 2.5.2008, Sanjay Tanti, husband of appellant No.1; father
of appellant Nos. 2 to 4 and son of appellant No.5 met with an accident
while he was travelling from Ladma to Goradih by a Tata Maxi. The
appellants filed a Claim Petition under Section 166 of the Motor Vehicles
Act, 1988 (hereinafter referred to as “the M.V. Act”). The owner of the
vehicle was joined as Opponent No.1; the driver of the vehicle was
joined as Opponent No.2 whereas, the National Insurance Company
Limited (hereinafter referred to as “the Insurance Company”) were
joined as Opponent Nos. 3 and 4.
6. The claim of the Insurance Company was that the driver and
owner of the vehicle had breached the terms and conditions of the
insurance policy and, as such, they are not liable for payment of
compensation.
7. The Motor Vehicle Accidental Claim Tribunal (hereinafter
referred to as “the Tribunal”) vide judgment and order dated 29.1.2011,
rejected the contention of the Insurance Company that the driver and
owner of the vehicle had breached the terms and conditions and while
allowing the Claim Petition directed the Insurance Company to pay
compensation of Rs.2,47,500/- to the claimants in terms of the order
dated 29.1.2011.
8. Being aggrieved by the judgment and award passed by the
learned Tribunal, the Insurance Company preferred Misc. Appeal No.521
of 2011 before the High Court at Patna contending therein, that the
learned Tribunal had erroneously
fastened the liability on it. In the said
appeal, a cross-objection came to be filed by the appellants herein. When
the appeal came up for hearing, it was noticed that the appeal was
dismissed for want of office objections and the counsel for the appellants
therein (Insurance Company) stated that the appellants (Insurance
Company) were not interested in reviving the appeal. The appeal was,
as such, disposed of by the High Court. Insofar as the cross-objection of
the appellants herein (the claimants) is concerned, the High Court vide
the impugned judgment and order dated 21.01.2016 held, that when the
appeal filed by the Insurance Company is only restricted to denial of its
liability to make the payment of compensation then in such case the
cross-objection at the behest of the claimants in the shape of appeal
would not be tenable. It, however, held that if the Insurance Company in
the appeal challenges the quantum of compensation, in such a case, the
claimant(s) will have a right to file an objection in terms of Order XLI
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rule 22 of the Code of Civil Procedure, 1908 (hereinafter referred to as
“CPC”) and, as such, dismissed the cross-objection as not maintainable.
9. The High Court of Patna in view of Rule 249 of the Bihar
Motor Vehicles Rules, 1992 has held, that there is no impediment for the
claimant(s) to file cross-objection in an appeal filed by the Insurance
Company if the Insurance Company had challenged the quantum of
compensation awarded to the claimant. It, however, held that if the appeal
filed by the Insurance Company is restricted only to its liability to make
the payment of compensation on the ground of breach of terms and
conditions of the insurance policy by the vehicle owner and/or driver of
the vehicle, then the cross-objection filed by the claimant would not be
tenable. It has been held, that in such a case the claimant(s) will have a
right to file an appeal as provided under Section 173 of the M.V. Act.
10. Being aggrieved, the appellants are before us by way of present
appeal by special leave.
11. The learned counsel appearing on behalf of the appellants
submit that the High Court has totally erred in holding that the cross-
objection filed by the claimants was not maintainable since the appellant
- Insurance Company has not challenged the quantum of compensation.
12. Per contra, the learned counsel for the Insurance Company
submit, that the High Court has rightly rejected the cross-objection of
the appellants herein. It is submitted that since the
Insurance Company
had not pressed the appeal, the cross-objection was rightly rejected by
the High Court.
13. The provisions of Section 173 of the M.V. Act and Order XLI
rule 22 of the CPC, relevant for the present appeal, read thus:
Section 173 of the M.V. Act.
“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 percent of the amount so awarded, whichever is
less, in the manner directed by the High Court:
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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.”
Order XLI rule 22 of the CPC
“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) * * *
(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.
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(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.”
14. Rule 249 of the Bihar Motor Vehicle Rules, 1992 reads thus:
“249. Manner of appeals. - (1) Every appeal against the Claims
Tribunal shall be preferred in the form of a memorandum signed
by the appellant or an advocate or attorney of the High Court duly
authorised in that behalf by the applicant and presented to the
High Court or to such officer as it appoints in this behalf. The
memorandum shall be accompanied by a copy of the award.
(2) The memorandum shall set forth concisely and under district
heads the grounds of objection to the award against which the
appeal is preferred without any argument or narrative and such
grounds shall be numbered consecutively.
(3) Save as provided in sub-rules (1) and (2), the provisions of
Order XLI and Order XXI in First Schedule to the Code of Civil
Procedure, 1908 (V of 1908) shall mutatis mutandis apply to
appeals preferred to the High Court under Section 173.”
15. In view of the aforesaid provision, the High Court has rightly
come to a conclusion that the claimants would be entitled to file a cross-
objection. However, it has restricted the right of the claimants to file
cross-objection only when an appeal is filed by the Insurance Company
challenging quantum of compensation by placing reliance on previous
judgments of Patna High Court. It has been held, that when the
Insurance
Company has not challenged the quantum of compensation but only
challenges its liability to pay compensation on the ground that there is a
breach of terms and condition by the driver and/or the owner of the
vehicle, the cross-objection would not be tenable at the instance of the
claimants.
16. An issue arose before the learned Three-Judge Bench of this
Court in the case of Municipal Corporation of Delhi & Ors. vs.
International Security & Intelligence Agency Limited1, as to whether
in an appeal under Section 39 of the Arbitration Act, 1940, a respondent
has a right to file cross-objection and, if so, whether the cross-objection
must be heard and decided on merits though the appeal by reference to
which cross-objection has been filed is itself dismissed as not maintainable.
1 (2004) 3 SCC 250
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17. This Court in the said judgment observed thus:
“14. Right of appeal is creature of statute. There is no inherent
right of appeal. No appeal can be filed, heard or determined on
merits unless the statute confers right on the appellant and power
on the court to do so. Section 39 of the Act confers right to file
appeal, insofar as the orders passed under this Act are concerned,
only against such of the orders as fall within one or other of the
descriptions given in clauses (i) to (vi) of sub-section (1) of Section
39. Parliament has taken care to specifically exclude any other
appeal being filed, against any order passed under the Act but not
covered by clauses (i) to (vi) abovesaid, by inserting the expression
“and from no others” in the text of sub-section (1). Clause (a) of
Section 41 extends applicability of all the provisions contained in
the Code of Civil Procedure, 1908 to (i) all proceedings before
the court under the Act, and (ii) to all the appeals, under the Act.
However, the applicability of such of the provisions of the Code
of Civil Procedure shall be excluded as may be inconsistent with
the provisions of the Act and/or of rules made thereunder. A bare
reading of these provisions shows that in all the appeals filed under
Section 39, the provisions of the Code of Civil Procedure, 1908
would be applicable. This would include the applicability of Order
41 including the right to take any cross-objection
under Rule 22
thereof to appeals under Section 39 of the Act.
15. Right to prefer cross-objection partakes of the right to prefer
an appeal. When the impugned decree or order is partly in favour
of one party and partly in favour of the other, one party may rest
contented by his partial success with a view to giving a quietus to
the litigation. However, he may like to exercise his right of appeal
if he finds that the other party was not interested in burying the
hatchet and proposed to keep the lis alive by pursuing the same
before the appellate forum. He too may in such circumstances
exercise his right to file appeal by taking cross-objection. Thus
taking any cross-objection to the decree or order impugned is the
exercise of right of appeal though such right is exercised in the
form of taking cross-objection. The substantive right is the right
of appeal; the form of cross-objection is a matter of procedure.
16. Though the statement of law made hereinabove flows simply
by the reading of the relevant statutory provisions yet some
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available decisions may also be noticed. In  Bhadurmal v.
Bizaatunnisa Begum [AIR 1964 AP 365 : (1964) 1 An WR 290]
a Division Bench presided over by Jaganmohan Reddy, J. (as His
Lordship then was) held cross-objection to be maintainable in an
appeal preferred under Sections 47 to 49 of the Hyderabad
Jagirdars Debt Settlement Act, 1952 because the provisions of
the Civil Procedure Code were generally applicable by virtue of
Section 51 thereof. The applicability of Order 41 Rule 22 to the
appeals under that Act was held not excluded merely because
provisions governing grounds of appeal and court fees were
specifically enacted in the Hyderabad Act. In Inayatullah
Khan v. Diwanchand Mahajan [AIR 1959 MP 58 : 1958 MP
LJ 786] Chief Justice M. Hidayatullah (as His Lordship then was)
upheld maintainability of the cross-objection in an election appeal
under Section 116-A of the Representation of the People Act,
1951 because the High Court as an appellate court hearing an
appeal under Section 116-A was enjoined to exercise the same
powers, jurisdiction and authority and to follow the same procedure
as it would have exercised or followed in respect of a civil appeal
under the Code of Civil Procedure. In Ramasray Singh v.
Bibhisan Sinha [AIR 1950 Cal 372] the Division Bench consisting
of Harries, C.J. and Bachawat, J. (as His Lordship then was)
held that conferment of right of appeal by Section 38 of the Bengal
Money-Lenders Act, 1940 which spoke of the order being
appealable in the same manner as if it were a decree of the court
implied a right in the respondent to file cross-objection inasmuch
as the jurisdiction to hear appeal was conferred on a pre-established
civil court, namely, the Court of the District Judge and nothing
was expressly stated as to the procedure regulating such appeal.
In A.L.A. Alagappa Chettiar v. Chockalingam Chetty [AIR
1919 Mad 784 : ILR 41 Mad 904 (FB)] a Full Bench of the High
Court of Madras presided over by Wallis, C.J. held that right of
the respondent to proceed by way of memorandum of cross-
objections was strictly incidental to the filing of appeal by opposite
party and therefore in an appeal under Sections 46 and 47 of the
Provincial Insolvency Act, 1907, cross-objections were
maintainable as the procedure prescribed in the Civil Procedure
Code is the standard procedure and applicable to courts exercising
powers in insolvency cases.
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17. With advantage, we may also refer to observations of this
Court made in Baru Ram v. Prasanni [AIR 1959 SC 93 : 1959
SCR 1403] . Section 116-A of the Representation of the People
Act, 1951 contemplates an appeal being laid before the Supreme
Court from every order made by the High Court under Section 98
or Section 99 of that Act. Section 116-C provides for every such
appeal being heard and determined by the Supreme Court as nearly
as may be in accordance with the procedure applicable to the
hearing and determination of any appeal from any final order
passed by the High Court in exercise of its original civil jurisdiction
subject to the provisions of that Act and the Rules, if any. All the
provisions of the Code of Civil Procedure, 1908 and rules of the
court shall, so far as may be, apply in relation to such appeal. P.B.
Gajendragadkar, J. (as His Lordship then was) speaking for the
Court observed: (AIR p. 99, para 11)
“There is no doubt that, in an ordinary civil appeal, the
respondent would be entitled to support the decree under appeal
on grounds other than those found by the trial court in his favour.
Order 41 Rule 22 of the Code of Civil Procedure which permits
the respondent to file cross-objections recognize the
respondent’s right to support the decree on any of the grounds
decided against him by the court below. In the present case no
appeal could have been preferred by Respondent 1 because
she had
succeeded in obtaining the declaration that the
appellant’s election was void and it should therefore be open
to her to support the final conclusion of the High Court by
contending that the other finding recorded by the High Court
which would go to the root of the matter is erroneous. Prima
facie there appears to be some force in this contention;”
However, the Court did not express any final opinion thereon as it
was considered not necessary to decide the point in that appeal.
18. We have, therefore, no doubt in our mind that right to take a
cross-objection is the exercise of substantive right of appeal
conferred by a statute. Available grounds of challenge against the
judgment, decree or order impugned remain the same whether it
is an appeal or a cross-objection. The difference lies in the form
and manner of exercising the right; the terminus a quo (the starting
point) of limitation also differs.
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19. In Superintending Engineer v. B. Subba Reddy [(1999) 4
SCC 423] a two-Judge Bench of this Court observed (vide SCC
p. 434, para 24):
“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 the 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….”
Such observation is not correct and proceeds on certain wrong
premises. Firstly, form of cross-objection is procedural and is only
a manner of exercising right of appeal which is substantive, as we
have already stated. Secondly, it is not merely the procedure
prescribed by the Code of Civil Procedure which has been made
applicable to proceedings under the Arbitration Act by Section
41(a) of the Act; the entire body of the Code of Civil Procedure,
1908 has been made applicable to all proceedings before the court
and to all appeals under the Arbitration Act, 1940. The provision
is general and wide in its applicability which cannot be curtailed;
the only exception being where the provisions of the Arbitration
Act and/or of the rules made thereunder may be inconsistent with
the provisions of the Code of Civil Procedure, 1908 in which case
the applicability of the latter shall stand excluded but only to the
extent of
inconsistency. We may hasten to add that to the extent
of our disagreement with the law laid down in B. Subba Reddy
case [(1999) 4 SCC 423] the proposition appears to have been
rather widely stated in that case. In fact the question before the
Court in B. Subba Reddy case [(1999) 4 SCC 423] was whether
cross-objection seeking the relief of award of interest at a higher
rate was maintainable though such an order did not fall within the
purview of Section 39(1) of the Act.
20. Once we hold that by taking cross-objection what is being
exercised is the right of appeal itself, it follows that the subject-
matter of cross-objection and the relief sought therein must
conform to the requirement of Section 39(1). In other words, a
cross-objection can be preferred if the applicant could have sought
for the same relief by filing an appeal in conformity with the
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provisions of Section 39(1) of the Act. If the subject-matter of the
cross-objection is to impugn such an order which does not fall
within the purview of any of the categories contemplated by clauses
(i) to (vi) of sub-section (1) of Section 39 of the Act, the cross-
objection shall not be maintainable.”
18. It, thus, could be seen, that this Court has held that the right to
prefer cross-objection partakes of the right to prefer an appeal. It has
been held, that when the impugned decree or order is partly in favour of
one party and partly in favour of the other, one party may rest contented
by his partial success with a view to giving a quietus to the litigation. It,
however, held that if he finds that the other party was not interested in
giving an end to the litigation and proposed to keep the lis alive by pursuing
the same before the appellate forum, he may like to exercise his right of
appeal. It has been held, that he too may in such cases and circumstances
exercise his right to file appeal by taking cross objection. It has been
next held, that taking any cross-objection to the decree or order impugned
is the exercise of right of appeal though such right is exercised in the
form of taking cross-objection. It has been held, that the substantive
right is the right of appeal and the form of cross objection is a matter of
procedure.
19. While arriving at the said decision, this Court relied on the
judgment in the
case of Bhadurmal vs. Bizaatunnisa Begum2, wherein
an issue with regard to maintainability of cross-objection in an appeal
preferred under Sections 47 to 49 of Hyderabad Jagirdars Debt
Settlement Act, 1952 was considered. It also relied on the judgment in
the case of Inayatullah Khan vs. Diwanchand Mahajan3, wherein
maintainability of cross objection in an election appeal under Section
116A of the Representation of the People Act, 1951 was upheld. It further
relied on the judgment of the Calcutta High Court in the case of Ramasray
Singh & Ors. vs. Bibhisan Sinha4, upholding the right of the respondent
to file cross-objection in an appeal contemplated under Section 38 of
Bengal Money-Lenders Act, 1940.
20. It further relied on certain observations of this Court in the
case of Baru Ram vs. Prasanni5. This Court did not agree with the
2 AIR 1964 AP 365
3 AIR 1959 MP 58
4 AIR 1950 Cal 372
5 AIR 1959 SC 93 : 1959 SCR 1403
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contrary view taken by the learned two-judge Bench of this Court in the
case of Superintending Engineer & Ors. vs. B. Subba Reddy6.
However, holding so, this Court held that since the right to appeal under
Section 39 of the Arbitration Act, 1940 was only restricted to clauses (i)
to (vi) of sub-section (1) thereof, the cross-objection also must conform
to the said requirement. In other words, it was held that a cross-objection
would be maintainable only if the subject-matter thereof falls in any of
the category carved out under clauses (i) to (vi) of sub-section (1) of
Section 39 of the Arbitration Act, 1940.
21. This Court further found that the entire Order XLI rule 22
CPC would apply to a cross-objection including the provisions of sub-
rule (4) thereof. It was held, that if the original appeal is found to be
incompetent or not maintainable if it is filed against an order not falling
under any of the clauses (i) to (vi) of sub-Section (1) of Section 39, then
the cross objection shall also fail on that ground and cannot be adjudicated
upon on merits. It could, thus, be seen that the view taken by the Court
is that the cross-objection would be tenable only if appeal is validly
tenable.
22. A perusal of Section 173 of the M.V. Act would reveal that
the said provision does not restrict the right to file an appeal as is restricted
under Section 39 of the Arbitration Act, 1940. It provides, that any person
aggrieved by an award of a Claims Tribunal, subject
to the provisions of
sub-section (2) thereof, may prefer an appeal to the High Court. The
restriction imposed under sub-section (2) of Section 173 is with regard
to non-filing of appeal against any award of a Claims Tribunal if the
amount in dispute in the appeal is less than ten thousand rupees. Needless
to mention that this is subject to the provisions about limitation.
23. As already discussed herein above, the learned single judge of
the High Court himself has observed that in view of Rule 249 of the
Bihar Motor Vehicle Rules, 1992, there cannot be any issue with regard
to the tenability of the cross-objection. Sub-rule (3) of Rule 249 of the
Bihar Motor Vehicle Rules, 1992 would show, that save as provided in
sub-rules (1) and (2), the provisions of Order XLI  and Order XXI in
First Schedule to the CPC shall apply mutatis mutandis to appeals
preferred to the High Court under Section 173 of the M.V. Act.
6 (1999) 4 SCC 423
URMILA DEVI & ORS. v. BRANCH MANAGER, NATIONAL
INSURANCE COMPANY LTD. & ANR.
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SUPREME COURT REPORTS
[2020] 3 S.C.R.
24. A conjoint reading of the provisions of Section 173 of the
M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and Order
XLI rule 22 of the CPC would reveal, that there is no restriction on the
right to appeal of any of the parties. It is clear, that any party aggrieved
by any part of the Award would be entitled to prefer an appeal. It is also
clear, that any respondent, though he may not have appealed from any
part of the decree, apart from supporting the finding in his favour, is also
entitled to take any cross-objection to the decree which he could have
taken by way of appeal.
25. When in an appeal the appellant could have raised any of the
grounds against which he is aggrieved, we fail to understand, as to how
a respondent can be denied to file cross-objection in an appeal filed by
the other side challenging that part of the Award with which he was
aggrieved. We find, that the said distinction as sought to be drawn by the
High Court is not in tune with conjoint reading of the provisions of Section
173 of the M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992;
and Order XLI rule 22 of the CPC.
26. As a matter of fact, it could be seen from the prayer clause in
the appeal preferred by the respondents herein (Insurance Company)
before the High Court that the entire award was challenged by the
respondents – Insurance Company. Not only that, but the appellants
herein (the claimants) were also
impleaded as party respondents to the
said appeal.  In such circumstances, the High Court has erred in declining
to consider the cross-objection of the appellants herein (the claimants)
on merits.
27. There is another angle to it.  Sub-rule (4) of Rule 22 of Order
XLI of the CPC specifically provides, that even if the original appeal is
withdrawn or is dismissed for default, the cross-objection would
nevertheless be heard and determined after such notice to the other
parties as the Court thinks fit. We are, therefore, of the considered view,
that even if the appeal of the Insurance Company was dismissed in
default and the Insurance Company had submitted that they were not
interested to revive the appeal, still the High Court was required to decide
the cross-objection of the appellants herein on merits and in accordance
with law.
28. In the result, the appeal is allowed. The impugned judgment
and order dated 21.1.2016 holding that the cross-objection of the present
appellants was not maintainable is quashed and set aside. The matter is

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URMILA DEVI & ORS. v. BRANCH MANAGER, NATIONAL
INSURANCE COMPANY LTD. & ANR.
remitted back to the High Court for deciding the cross-objection filed by
the present appellants on its own merits. There shall be no order as to
costs.
Divya Pandey
Appeal allowed.