STATE OF K. ERALA v. PADMAVATHI — 1982 DIGILAW 290 (KER)

Judgment :- 1.0. K. Bhaskaran, the husband of the first plaintiff and father of the two minors, plaintiffs 2 and 3, was a reputed mechanic, and was the proprietor of the workshop, Kothamangalam Auto Engineers. He was engaged by the 1st defendant, the Kerala State Electricity Board, through one of its Junior Engineers, to carry out the repairs to its road roller KLK. 8702 which was garaged in an unserviceable condition at Sholayar for a number of years. The repairs having been carried out on 15-7-1970, the next day at about I p.m. it was taken out of the garrage to be loaded in a lorry at the store house of the 1st defendant Board. It was one Krishnankutty, a driver in the permanent employment under the 1st defendant, who took out the road roller from the garrage. The road roller overturned on the road near the post office at Sholayar at about 130 p. m. Though Krishnankutty the driver, escaped unhurt, the said Bhaskaran who accompanied him to observe the performance of the vehicle after the repairs, with a view to rectify the mistakes, if any, detected, got under the overturned road roller. He died instantaneously as a result of the injuries sustained by him. Bhaskaran was 42 years old at the time of his death, and according to the plaint averments, he was of good health and physique, and he could have normally expected to live at least for another 25 years to earn not less than Rs. 700/- per month. In the plaint it is also averred that death of Bhaskaran was as a direct result of negligence and rashness with which the road roller was driven by the driver Krishnankutty, the employee of the 1st defendant, in the course of his employment. For the mental and physical pain suffered by him due to the accident, and loss of the income to the estate of the deceased Bhaskaran, the plaintiffs claimed in the aggregate, a sum of Rs.75,000/- by way of damages and compensation through a petition before the Chairman of the 1st defendant Board on 27-7-1970. The Ist defendant Board by itself did not pay any amount, but only referred the matter to the 2nd respondent, the State Insurance Officer, Kerala State, who, while upholding the claim, awarded only an amount of Rs. 1,500/- by way of compensation. The Ist defendant Board by itself did not pay any amount, but only referred the matter to the 2nd respondent, the State Insurance Officer, Kerala State, who, while upholding the claim, awarded only an amount of Rs. 1,500/- by way of compensation. The amount having been found to be too low, the plaintiffs did not accept it, but filed a suit for recovery of the sum of Rs. 75,000/-. The trial court gave a decree for Rs. 20,000/- with interest at the rate of 6% per annum from the date of plaint against the defendants with proportionate costs. This appeal has been preferred by the 2nd defendant feeling aggrieved by the decision of the trial court. A memorandum of cross-objections was filed by the plaintiffs claiming by way of additional compensation a sum of Rs. 16,000/- over and above what was awarded by the trial court. 2. The Government Pleader appearing for the appellant, 2nd defendant, contended that the court below ought to have found that the road roller at the time of the accident was driven by Bhaskaran (the deceased) and his own negligence and rashness contributed to the accident and to his death resulting therefrom. It was also submitted by him that Bhaskaran not having been an employee of the 1st defendant Board, and the accident and the resultant death not having occurred in the course of employment, the plaintiffs were not entitled to claim any compensation on the facts and in the circumstances of the case. 3. Under Issue No. 1, discussed in Para.6 to 10 of the judgment appealed against, the finding or the trial court is that it was dw. 2 Krishnankutty, the driver in the employment of the 1st defendant Board who drove the road roller at the time of the accident. The trial court disbelieved the evidence of dw. 2 that it was Bhaskaran who was at the wheels at the time of the incident. The evidence would go to show that at the time of the accident there were two persons in the road roller; Bhaskaran and dw. 2 Krishnankutty, out of whom, unfortunately, Bhaskaran died and Krishnankutty survived. It is only natural that dw. 2 out of the instinct for self-protection, would not own up the responsibility for the accident resulting in the death of a man. dw. 2 Krishnankutty, out of whom, unfortunately, Bhaskaran died and Krishnankutty survived. It is only natural that dw. 2 out of the instinct for self-protection, would not own up the responsibility for the accident resulting in the death of a man. dw. 1, the Junior Engineer who had taken Bhaskaran to Sholayar, had admitted that the repairs bad been completed on 16-7-1970; there was, therefore, no need or occasion in the normal course for Bhaskaran to drive the road roller when it was being taken for the purpose of loading into a lorry. Moreover. dw. 2 had admitted in his evidence that it was be who started the road roller. On a consideration of the evidence on record we feel convinced that the trial court was fully justified in drawing the inference that the road roller at the time of the accident was driven by none other than dw. 2 Krishnankutty himself. There is no other circumstance brought to our notice to persuade us to take a different view. On the basis of the evidence discussed in Para.6 to 10 of the judgment the trial court has also recorded a finding that the accident occurred due to the rashness and negligence of dw. 2, the driver of the 1st defendant Board. Once it is found that it was dw. 2, who was at the wheels at the time of the accident, in the absence of any other evidence, it has to be concluded that the accident was the result of the rashness and negligence in driving the road roller by dw. 2 as rightly found by the trial court. 4. We also find no merit in the contention advanced by the Government Pleader on behalf of the appellant that the lower court ought to have found that there was no coverage to pay insurance either to the driver or to the passenger travelling in the vehicle as, according to him, Ext. B6 policy does not provide for that. In terms of the schedule to Ext. B6 policy, the limit of the Government's liability is as mentioned under S.90 of the Motor Vehicles Act, Act 10 of 1125. Clause (1) of Ext. B6 provides: 1. B6 policy does not provide for that. In terms of the schedule to Ext. B6 policy, the limit of the Government's liability is as mentioned under S.90 of the Motor Vehicles Act, Act 10 of 1125. Clause (1) of Ext. B6 provides: 1. Subject to the limit of liability the Government of the State of Kerala will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Vehicle in a public place against all sums including claimants, costs and expenses which the insured shall become legally liable to pay in respect of death of or bodily injury to any person." The liability of the insurer does not fall within any one of the general exceptions mentioned in the policy. There is nothing in sub-section (1) of. S.90 also which absolves the liability of the insurer to indemnify the insured in regard to liabilities arising out of death resulting from accident involving the vehicle with respect to which the policy was taken. 5. On the quantum of damages awarded no contention is seen to have been raised by the appellant-2nd defendant; nor do we think that the appellant would have succeeded in getting the quantum reduced by the application of the guideline for determination of compensation given by the Division Bench of this Court in Vasantha G. Kamath v Kerala State Road Transport Corporation (1981 KLT 20=1981 ACJ. 353) We are, however, concerned with the cross-objections filed by the plaintiffs-respondents 1 to 3 for enhancing the decree amount by Rs. 16,000/-, for, according to them, judged by the norms ordinarily accepted for determination of the quantum of damages to be awarded in the case of a person, who had an expected life of another 25 years with an earning capacity to make a contribution of Rs. 500/- per month to the family, the damages would not be less than Rs. 36,000/- if not more. The question regarding the correctness of the quantum determined by the court below need be gone into only if we find that the memorandum of cross-objections filed by respondents I to 3 is maintainable. 6. It has to be borne in mind that in this case the 1st defendant Board did not file an appeal. 36,000/- if not more. The question regarding the correctness of the quantum determined by the court below need be gone into only if we find that the memorandum of cross-objections filed by respondents I to 3 is maintainable. 6. It has to be borne in mind that in this case the 1st defendant Board did not file an appeal. It is only the 2nd defendant, the State Insurance Department, that has chosen to file an appeal, contending mainly that the accident, and the resultant death of Bhaskaran were not due to the rashness or negligence on the part of the driver in the employment of the 1st defendant Board, but because of the rashness and negligence on the part of Bhaskaran (the deceased) himself, and that in any event the coverage under Ext B-6 policy did not extend to cases where death or injury was not either to a pedestrian or to a passenger. The primary responsibility for payment of compensation to the victim or relatives of the victim of the accident is on the owner of the vehicle, in this case the 1st defendant Board. This position is clear from the averment in Para.24, and the prayer portion of the plaint which, for the sake of convenience, we are extracting below: "24. The 2nd defendant State Insurance Officer is impleaded only for the purpose of giving notice of this suit to the 2nd defendant, as required by law. Plaintiffs, therefore, pray that the Court may be pleased to pass a decree in favour of the plaintiffs allowing the 1st plaintiff to realise from the 1st defendant the sum of Rs. 75,000/-with interest thereon at 6% per annum from date of suit till date of payment and costs of this suit, and granting such other reliefs that the plaintiffs may pray for and that the court may deem fit to grant." 7. In support of the contention that an appeal against one of the corespondents is maintainable, reliance was placed by the counsel for the appellant on the decision of the Madras High Court in Devendra Ayyar v. Muthu Chettiar (AIR. 1938 Mad 329) wherein Abdul Rahman J, had held as follows: "The provisions contained in 0.41, R.22 are quite general in my opinion and entitle respondent to take any cross-objection to the decree which he could have taken by way of appeal. 1938 Mad 329) wherein Abdul Rahman J, had held as follows: "The provisions contained in 0.41, R.22 are quite general in my opinion and entitle respondent to take any cross-objection to the decree which he could have taken by way of appeal. It has been already held in a Full Bench ruling of this court in 38 Mad. 705 and followed in 41 Mad. 904 and AIR. 1923 Lah. 39 that a respondent could urge cross-objections against a co-respondent in any and every case." However, the view expressed in this decision could not be considered to lay down the correct position in law in view of the decision in Venkateswarlu v. Ratnamma (AIR. 1950 Mad. 379) handed down by a Bench of Five Judges. Speaking for the Full Bench, Raja Mannar C. J said: "The legislature by describing the objection which could be taken by the respondent as a cross-objection' must have deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent. The cross-objection must be an objection by a respondent against the appellant." After having quoted the above passage, the Supreme Court in Panna Lal v. State of Bombay (AIR 1963 SC. 1516) stated: "We think, with respect, that these observations put the matter clearly and correctly. That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a co-respondent is indicated by the substitution of the word 'appellant' in the third paragraph by the words 'the party who may be affected by such objection.' This view in regard to the limited scope and application of 0.41, R 22 CPC., has been reiterated by the Supreme Court in Choudhary Sahu v. State of Bihar ((1982) I SCC. 232) wherein in Para.7 of the judgment, at page 235 of the report, Misra J, who spoke for the Bench, has stated as follows: "The first part of this Rule authorises the respondent to support the decree not only on the grounds decided in his favour but also on any of the grounds decided against him in the Court below. The first part thus authorises the respondent only to support the decree. The first part thus authorises the respondent only to support the decree. It does not authorise him to challenge the decree. If he wants to challenge the decree, be has to take recourse to the second part, that is, he has to file a cross-objection if he has not already filed an appeal against the decree. Admittedly, the State of Bihar had neither filed any appeal nor cross-objection. Obviously, therefore, on the strength of the first part of sub-rule (1) of R.22 of 0.41 the State of Bihar could only support the decree not only on the grounds decided in its favour but also on the grounds decided against it. The Commissioner, however, has set aside the finding in favour of the appellants on the strength of 0.41, R.22(1). Ia our opinion this he could not do." As early as in 1960 a Division Bench of this Court in Abubacker v. Abdulrahiman Beary (1960 KLT. 348) had taken the view that memorandum of cross-objections which is directed solely against co-respondents, not the appellants, is not maintainable under 0.41, R.22. The law is well-settled that as a general rule a respondent can file a cross-objection only against an appellant; and it is only in exceptional cases where the decree proceeds on a common ground or the interest of the appellant is intermixed with that of the respondent that a respondent could be allowed to urge a cross-objection against a co-respondent. 8. The counsel for the cross-objectors respondents 1 to 3 submit ted that this is an exceptional case where the interest of the appellants is intermixed with that of the respondents and that therefore they should be allowed to urge the cross-objection against the co-respondent, the 1st defendant, as permitted by the Division Bench ruling referred to above and by the Supreme Court in Pannalal's case (AIR. 1963 SC. 1516). 9. To fall within the category of exceptional cases envisaged by the Division Bench, the relief claimed against the appellant should be so intermixed with the relief to be granted to the co-respondent that the relief in the appeal could not be granted without entertaining the cross-objections. In this "case the appellant, the State Insurance Officer, is in the position of an indemnifier. His liability in terms of the Motor Vehicles Act and the relevant clauses in Ext. In this "case the appellant, the State Insurance Officer, is in the position of an indemnifier. His liability in terms of the Motor Vehicles Act and the relevant clauses in Ext. B-6 policy was restricted to that of the 1st defendant who was primarily liable to pay the damages; that is so under S.90(2) of the Act and the relevant clauses in Ext. B-6 policy. In Para.24 of the plaint it has been made sufficiently clear that the 2nd defendant (the State Insurance Officer)-appellant had been impleaded only for the purpose of giving notice of the suit to him as required by law; no other relief is seen to have been claimed against him. The prayer in the suit is for a decree in favour of the plaintiffs allowing the 1st plaintiff to realise from the 1st defendant a sum of Rs. 75,000/-. This being the position, it could not be held that on the facts and in the circumstances of the case respondents 1 to 3 could be allowed to file a cross-objection against the 4th respondent (1st defendant-Board) in an appeal filed by the 2nd defendant whose liability is restricted to indemnification of the payment of compensation found due from the 1st defendant subject to the limitations and conditions contained in the certificate of insurance. 10. The counsel for the cross-objectors respondents 1 to 3 then submitted that the court having wide powers under 0.41, R.33, the relief could be granted to the cross-objectors. According to him though the appellants bad not filed an appeal the court is not without power to grant the relief, as even if no cross-objections were filed by the plaintiffs, the court is not without power to grant such reliefs as it deems fit and necessary. The provisions contained in 0.41 R.33, no doubt is widely worded; but it is meant to meet only exceptional circumstances in furtherance of justice where the court finds that the decree to be granted in an appeal could not be granted without interfering with the decision of the trial court in so far as it relates to the parties who had not appealed against it. Such cases by their very nature would only be a few and far between. The object of 0.41, R.33 is to avoid contrary and inconsistent decisions on the same questions in the same suit. Such cases by their very nature would only be a few and far between. The object of 0.41, R.33 is to avoid contrary and inconsistent decisions on the same questions in the same suit. It is wrong to assume that the rule confers on the court an unrestricted right to reopen decrees which had become final merely because the appellate court does not agree with the reasoning given in the judgment appealed against. Ordinarily the power conferred by this rule would be confined to those cases where as a result of the interference in favour of the appellant, further interference by the lower court is rendered necessary in order to adjust the rights of the parties according to justice, equity and good conscience. While exercising the power under this Rule, the Court should not lose sight of the other provisions of the law of limitation, law of court-fees etc. (vide-observations of the Supreme Court in Para.12 and 13 of the decision in Choudhary Sahu's case ((1982) I SCC. 232). Once the cross-objectors realise the limitations of the court in the matter of exercising the power under R.22 and 33 of 0.41 CPC., they would also find that on the facts and in the circumstances of the case their cross-objection could not be maintained. The result, therefore, is that the appeal fails, and is dismissed with the costs of respondents 1 to 3. The cross-objection also is dismissed, however, in the circumstances of the case without any order as to costs.