NATIONAL INSURANCE CO. LTD v. R. RANI — 1999 DIGILAW 763 (MAD)

Judgment : M. KARPAGAVINAYAGAM, J. ( 1 ) NATIONAL insurance Co. Ltd. is the appellant herein. ( 2 ) CHALLENGING the award of Rs. 2,86,200, this appeal has been presented before this court, mainly on the ground of negligence and of quantum. ( 3 ) DURING the pendency of the appeal, the claimants filed cross-objection, seeking to enhance the quantum. ( 4 ) THE deceased, in this case, is one rukmangadhan. Claimants, in this case, are widow and daughter of the deceased. ( 5 ) DECEASED was a driver of the lorry. On 10. 5. 1990, at about 2. 15 p. m. , when he was travelling in the lorry bearing registration no. TMJ 9405 from Madras to Kanya kumari, as additional driver, the driver of the lorry proceeded in a rash and negligent manner, slipped the vehicle from the main road and dashed against an electric post. Due to this, the deceased sustained serious injuries on head and leg. He died on the way to the hospital. Hence, the claimants filed a petition for compensation against the owner of the lorry and the insurance company, seeking compensation amount of Rs. 4,25,000. ( 6 ) THE owner of the lorry remained ex pane. The insurance company, which was contesting the claim, though filed a counter neither chose to examine any witness nor produced any documentary evidence to establish that the claim is not legal. ( 7 ) THE Tribunal, on analysing the evidence of the claimant No. 1, PW 1, wife of the deceased and Exhs. A-1 to A-8 and considering the submission made by the counsel for parties, found that the driver of the lorry was negligent and held that the claimants would be entitled to Rs. 2,86,200 as compensation. This award is the subject-matter of present appeal by the insurance company, questioning the quantum and finding of the Tribunal with regard to the negligence. ( 8 ) AT the outset, I shall mention that the appeal filed by the insurance company, without impleading the owner of the lorry, as a co-appellant, is liable to be dismissed on the ground of maintainability. ( 9 ) THIS court as well as the Apex Court has held that the insurance company could only question the liability on the basis of various defence pleas detailed under section 96 (2) of the Motor Vehicles Act, 1939. ( 9 ) THIS court as well as the Apex Court has held that the insurance company could only question the liability on the basis of various defence pleas detailed under section 96 (2) of the Motor Vehicles Act, 1939. But, in this case, the appellant individually chose to question the finding with regard to the quantum and negligence. Under these circumstances, the appeal is liable to be dismissed. ( 10 ) AS I indicated earlier, respondents-claimants filed a cross-objection, requesting to enhance the quantum. It is pointed out by the learned counsel for the appellant that when the main appeal itself is dismissed as not maintainable, this court may not go into the merits of the cross-objection, as it does not survive any more. In support of the said submission, the counsel for the appellant would cite the following decisions:" (1) Divisional Manager, United India insurance Co. Ltd. v. Dulasi Ammal, 1999 ACJ 136 (Madras); (2) United india Insurance Co. Ltd. v. Rajammal, 1993 ACJ 486 (Madras); (3) United india Insurance Co. Ltd. v. M. R. Sub-ramanian, 1996 ACJ 1260 (Madras); (4) National Insurance Co. Ltd. v. M. Kasthuri, C. M. A. No. 480 of 1994 and cross-objection No. 131 of 1995, and (5) National Insurance Co. Ltd. v. V. Vasantha, 1987 ACJ 887 (Madras ). " ( 11 ) ON the other hand, it is contended by the learned counsel for claimants/cross objectors, that even when the main appeal filed by the insurance company is withdrawn or the same is dismissed as not maintainable, this court can very well go into the aspect of quantum in the cross-objection, independently. He would cite the decision reported in Superintending engineer v. B. Subba Reddy, AIR 1999 SC 1747 , for the above proposition. ( 12 ) AS pointed out by learned counsel for the insurance company, the appellant herein, it has been clearly laid down in the decisions cited by him that when the appeal filed by the insurance company is confined to the liability alone, then in that appeal, the claimant cannot make a claim for enhancement, which is really directed against the owner of the vehicle, who is the co-respondent in the appeal. ( 13 ) THE claimants cannot file a cross-objection, seeking for the enhancement of the quantum in the appeal filed by the insurance company, which does not question the quantum or negligence. ( 13 ) THE claimants cannot file a cross-objection, seeking for the enhancement of the quantum in the appeal filed by the insurance company, which does not question the quantum or negligence. In other words, when the insurance company filed an appeal, only with regard to the liability, the cross-objection of quantum cannot be sustained. ( 14 ) THE principle behind this proposition is this:"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. " ( 15 ) THE cross-objection, if it is directed solely against the co-respondent and not the appellant, is not maintainable. Though in exceptional cases, the cross-objection against co-respondent could be allowed to be maintained, in the case where the interest of the appellant is inter-mixed with that of the respondent, the law is well settled that as a general rule, the respondent can file a cross-objection only against the appellant. However, it is also clear from the perusal of the various decisions (cited supra) that when the subject-matter of the appeal by the insurance company is not the quantum of compensation itself, the maintainability of the cross-objection for enhancement of the quantum would not arise. ( 16 ) IN the instant case, the grounds of appeal would show that the insurance company not only questioned the liability as contained in ground No. 3, but also questioned the quantum in ground Nos. 2, 6, 7 and 8. ( 17 ) WHEN thegrounds regarding the quantum and negligence, in ground Nos. 2, 6, 7 and 8 have been raised without impleading the owner of the vehicle, it is not open to the counsel for insurance company to contend now that the cross-objectors would not be permitted to question the quantum, seeking for enhancement. ( 18 ) ALL the decisions cited by the counsel for the insurance company would relate to the cross-objection against the appeal filed by the insurance company, only with reference to the limited liability. It is also held in those decisions that when the appellate forum decides about the limited liability, the question of enhancement in the cross-objection would not arise. It is also held in those decisions that when the appellate forum decides about the limited liability, the question of enhancement in the cross-objection would not arise. ( 19 ) IN the appeal filed by the insurance company, if it is decided that there is no liability for the insurance company to pay the amount of compensation, or the insurance company would be liable to pay only a limited amount, then the cross-objection, seeking for more amount from the owner of the vehicle, who is the co-respondent, would not lie, since the said objection cannot be made to the appellants plea. In the instant case, the Tribunal held that the appellant insurance company is liable to pay the compensation. As stated earlier, the owner of the vehicle remained ex pane. Even before this court, nobody has entered appearance on behalf of respondent No. 3, the owner of the vehicle. ( 20 ) EVEN if the cross-objectors succeed in this matter, the liability to pay the enhanced amount would be fastened on the insurance company alone. Though the insurance company pays the amount on behalf of the owner of the vehicle, respondent No. 3 herein, it cannot be said that the cross-objection would not be maintainable, for the reason that the cross-objection is really directed against the insurance company. ( 21 ) IN the case on hand, both in judgment, and in decree, the Tribunal directed the insurance company, the respondent no. 2 in the claim petition, to pay the compensation amount to the claimants on behalf of the owner of the vehicle, the respondent No. 1 in the claim petition, holding that driver of the lorry was negligent and the claimants would be entitled to get compensation for death of the deceased in the accident and that the insurance company, with which the vehicle involved in the accident was insured, would be liable to pay on behalf of the owner of the vehicle, who remained ex pane. ( 22 ) ORDER 41, rule 22, Civil Procedure code permits a respondent to raise all pleas by way of cross-objection to the decree appealed against which he could have taken by way of appeal. The primary obligation of proving the case that the loss was due to the negligent act of the driver of the vehicle is that of the claimants. The primary obligation of proving the case that the loss was due to the negligent act of the driver of the vehicle is that of the claimants. The primary responsibility of satisfying an award passed by the Tribunal, after having satisfied with claimants case is that of the owner of the vehicle and the person vicariously liable. Thus, the insurer has to indemnify the insured. ( 23 ) A court may pass a decree against several defendants. One of them alone may choose to prefer an appeal. He shall have to implead non-appealing defendants as respondents, they being necessary parties for adjudication of the appeal. If non-appealing defendants permit one to prefer an appeal, because they stand to gain in the event of the appeal being allowed, they by their conduct have allowed the appealing one to represent their common interest. They must accept his representative character in the result of the appeal. ( 24 ) IN the instant case, the claim petition has been filed against both the owner of the vehicle and the insurer, claiming that both are jointly and severally liable to pay the compensation. The Tribunal also, by accepting their claim, directed the insurance company to pay the amount on behalf of the owner of the vehicle, the insured by fastening the entire liability on the insurance company, as there is no question of limited liability. ( 25 ) UNDER these circumstances, it cannot be now contended that the effect of allowing the cross-objection would result in adversely affecting the liability of the co-respondent, namely, the owner of the vehicle. ( 26 ) EVEN in the decision in Panna Lal v. State of Bombay, AIR 1963 SC 1516 , it is held that if the relief sought through cross-objection in the appeal against the appellant, is intermixed with the relief granted to other respondents, then the said objection can be entertained. ( 27 ) AS I indicated earlier, in the present case, the Tribunal held that the insurance company is liable to pay the amount on behalf of the owner of the vehicle, and as such, it can be very well said the cross-objection filed by the claimants is against the appellant on behalf of co-respondent, the owner of the vehicle. ( 27 ) AS I indicated earlier, in the present case, the Tribunal held that the insurance company is liable to pay the amount on behalf of the owner of the vehicle, and as such, it can be very well said the cross-objection filed by the claimants is against the appellant on behalf of co-respondent, the owner of the vehicle. ( 28 ) IT is also relevant to note that the owner of the vehicle did not choose to be present either before the Tribunal or before this court. ( 29 ) THIS view of mine is supported by the decisions in Bhagwan Das v. National insurance Co. Ltd. , 1991 ACJ 1137 (MP)and Nahar Singh v. Manohar Kumar, 1993 acj 269 (Jandk ). ( 30 ) BESIDES these decisions, the recent judgment of the Supreme Court reported in Superintending Engineer v. B. Subba reddy, AIR 1999 SC 1747 , would give the clear answer for the question referred to above. While dealing with the question: "whether cross-objection could be sustained when the appeal by the other party is withdrawn or dismissed?", the Apex court would hold that the cross-objection may nevertheless be heard and determined as the said cross-objection is to be treated as an appeal, as it has got all the trappings of the appeal. The relevant observation is this:" (24) From the examination of these judgments and the provisions of section 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 the 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, the cross-objection may nevertheless be heard and determined. (3) Court-fee is payable on the 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, the 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. " ( 31 ) UNDER these circumstances, I am of the view that though the appeal is not maintainable, still the cross-objection, in the light of the facts and circumstances of the present case, is maintainable, since the relief for enhancement is only directed against the appellant. ( 32 ) LET us now consider the merits of cross-objection, seeking for the enhancement of the quantum. The total claim was rs. 4,25,000. The deceased, at the time of accident, was aged about 32 years. The age of the wife of the deceased was 27 years, and the daughters age was 8 years. ( 33 ) THE Tribunal fixed the monthly income of the deceased as Rs. 1,000. By multiplying the annual income with the multiplier of 33 on the basis of longevity theory, the Tribunal had concluded that the total calculation would work out to rs. 3,96,000 and that after deducting 1/3rd of the amount, it comes to Rs. 2,64,000. But, even then, the Tribunal awarded only rs. 2,00,000 for the loss of dependency, rs. 200 for the loss of dress materials, rs. 65,000 for the loss of expectancy of life, Rs. 3,96,000 and that after deducting 1/3rd of the amount, it comes to Rs. 2,64,000. But, even then, the Tribunal awarded only rs. 2,00,000 for the loss of dependency, rs. 200 for the loss of dress materials, rs. 65,000 for the loss of expectancy of life, Rs. 12,500 towards loss of consortium and Rs. 8,500 towards the loss of love and affection for daughter. Thus, the Tribunal calculated the total amount of compensation as Rs. 2,86,200. ( 34 ) ACCORDING to the counsel for cross-objectors, if the multiplier theory is adopted, instead of longevity theory, then, the amount of compensation would have been more. ( 35 ) THOUGH, in my view, the longevity theory may not be the proper theory, as laid down by the Apex Court, the final figure arrived at by the Tribunal, namely, rs. 2,86,200 as compensation to the claimants, cannot be said to be on the lower side. Moreover, according to PW 1, the deceased was working as a driver of the lorry and there is no material to show that the said job was a permanent one. Hence, taking into consideration the overall circumstances, the award of Rs. 2,86,200 in my view, is just and adequate one. ( 36 ) UNDER those circumstances, I do not propose to disturb the figure of compensation fixed by the Tribunal. Therefore, the tribunals order is confirmed. ( 37 ) IN the result, the appeal and cross-objection are dismissed with the above observations. No costs. Appeal dismissed; cross-objection dismissed.