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2005 DIGILAW 186 (HP)

H. R. T. C. v. BREEKAN DEVI

2005-06-07

DEEPAK GUPTA

body2005
JUDGMENT Deepak Gupta, J.:— In these appeals arising out of the Motor Vetches Act, Cross Objections have been filed. 2. Mr. Dinesh Thakur learned counsel appearing on behalf of the appellants has urged that the Cross Objections are not maintainable in view of the judgment of the Full Bench of this Court in Ms. Lata vs. United India Insurance Company Ltd. and others, Cross Objections No. 39 of 1996 in FAO No. 267 of 1993 dated 27th October, 2004. 3. On the other hand on behalf of Cross Objectors it is urged that since the Motor Vehicle Rules have been amended and out of Order 41 Rules 22 and 33 CPC have been made applicable to the appeals filed under the Motor Vehicles Act, therefore, the cross objections are maintainable. 4. Mr. Sandeep Agnihotri, learned counsel appearing on behalf of the cross objectors has urged that this Court had consistently taken the view that cross objections were maintainable in appeals filed under the Motor Vehicles Act. This Court had however held that in appeals filed by the Insurance Company where defences available to the Insurance Company were limited then Cross Objections were not maintainable. He further submits that it was only on 7th October, 2004 that the Full Bench after reviewing the entire law held that the cross objections are not maintainable. He, therefore, submits that in view of the amendment to the Motor Vehicle Rules in pursuance to the judgment the cross objections should be treated to have been filed under the new Rules. 5. A Division Bench of this Court in H.P. Road Transport Corporation vs. Pt. Jai Ram and others, reported in 1980 ACJ 1, had taken the view that the provisions of Rule 22 of Order 41 CPC was in the realm of procedural law and , therefore, held that cross objections could be filed . A similar view was taken in Charan Singh vs. Joginder Singh and another, 2002 ACJ 1250,wherein it was held that there is no prohibition with respect to the applicability of Order 41 Rules 22&33 CPC to appeals filed under Motor Vehicles Act. 6. A similar view was taken in Charan Singh vs. Joginder Singh and another, 2002 ACJ 1250,wherein it was held that there is no prohibition with respect to the applicability of Order 41 Rules 22&33 CPC to appeals filed under Motor Vehicles Act. 6. In National Insurance Company Ltd. vs. Rukmani Devi and others, in FAO (MVA) No. 88 of 1988 decided on 4th September, 1996 a Division Bench of this Court held that Cross Objections for enhancement of compensation were not maintainable in an appeal filed by the Insurance Company where the defences available to the Insurance Company were limited under the Motor Vehicles Act. This view was followed in National insurance Company vs. Satya Devi and others, 2002 ACJ 1618: New India Assurance Co. Ltd. vs. Kehro devi and others, 1997 ACJ 623: Krishan Dutt vs. Premi Devi 1998 (1)Shim.L.C.103 and various other judgments. 7. The matter was referred to a full Bench as to whether the Division Bench judgment of this Court in Rukmani Devis case and subsequent cases required reconsideration. The full Bench while dealing with the question came to the conclusion that the cross objections are not maintainable at all in appeals filed under the Motor Vehicles Act. The Full Bench held that the right to file cross objections was a substantive right and not a procedural right and, therefore, it should have been specifically provided for under some law. It has been held as follows: "Whether, therefore, an appeal is filled by an Insurance Company within the confines of Section 149 (2) of the Motor Vehicles Act, 1988 or otherwise, or an appeal is filed by any one else, against a judgment and award of the Tribunal, since Motor Vehicles Act, 1988 does not lay down, provide for, or say that the provisions of the Code of Civil Procedure shall be applicable to appeals filed under the Act, even though there is a right of appeal against the judgment and award passed by a Tribunal as prescribed in Section 173 of the Motor Vehicles Act, 1988, in the absence of any stipulation in the Act of the applicability of the provisions of the Code of Civil Procedure to appeals filed under Section 173 of the Act, the substantive right of filing Cross Objections cannot be availed of by any one as such right does not exist in the statute . The right of appeal is a creature of statute and that right has been conferred upon a person aggrieved of an award in Section 173 of the Act. Neither in Section 173 of the Act nor elsewhere in the Act has it been provided that there shall be a right of filing Cross Objections. In other words, Motor Vehicles Act, 1988 does not by itself, under its scheme, in its own body, contain any provision similar or identical to Rule 22 or Rule 33 of Order 41 of the Code Civil Procedure, not does the Act anywhere provides that the Order 41 Rule 22 or Rule 33 of the Code of Civil Procedure, or the Principles flowing, therefore, shall apply to appeals filed under the Act nor does the provide that provisions of Code of Civil Procedure shall apply to appeals filed under the Act." The Full Bench then went out to consider the Himachal Pradesh Motor Vehicles Rules and held as follows: "As is seen, whereas under Rule 232 certain provisions of the Code of Civil Procedure have been made applicable to the proceedings before the Tribunal, under Rule 233 it has only been laid down as to be filed against awards of the Tribunal. Rule 232 of course does not relate to appeals, as it refers only to the proceedings before the Tribunal. In Rule 233 of course the State Government could have incorporated a provision about the applicability of Order 41 Rules 22 and 33 of the Code of Civil Procedure to the appeals under the Act but this not having been done, we cannot import either into the Act or into the aforesaid 1999 Rules any provision with respect to the aforesaid applicability of order 41 of the code of civil Procedure to the appeals filed under the Act with the result that we have to hold and declare that there is no right of filing Cross Objections, same not having been created by any statute and hence it not being in existence. It shall however be open to the State Government to consider effectively the desirability of suitably amending 1999 Rules to incorporate appropriately in these Rules, for example, in Rule 233 by way of its own amendment, or otherwise by introducing a new rule, that Order 41 of the Code of Civil Procedure shall apply to the appeals filed under the Act, as it applies to appeals filed under the Code of Civil Procedure. We accordingly direct the State Government to consider this issue, in its true perspective and in best public interest and, if it all decides to carry out the above indicated amendment 1999 Rules, to do the needful in that direction within two months from today. The decision has to be of the State Government in the exercise of its rule main power and we have no intention of issuing any direction, much less a binding direction as to how and in what manner this decision should be taken. Only, that the decision, one way or the other, has to be taken in a time bound manner. We, therefore, direct the Law Secretary, Government of Himachal Pradesh to inform the Registrar General of this Court about the action taken, one way or the other, before 31st December, 2004. A copy of this judgment accordingly shall be sent to the Law Secretary, Government of Himachal Pradesh for his information and compliance." 9. In view of the directions of the Full Bench, the State Government considered the matter and promulgated the Himachal Pradesh Motor Vehicles (Fourth Amendment) Rules, 2004 which were published on 15th January, 2005. Rule 233 of the existing Himachal Pradesh Motor Vehicle Rules, 1999 was substituted as follows: "233. Form and manner of appeals against the award of Claims Tribunal-(1) Every appeal under sub-section (1) of section 173 of the Act against the award of a Claims Tribunal shall be preferred in the form of a memorandum stating concisely the grounds on which the appeal is preferred, and shall be accompanied by a copy of the judgment and the award appealed against. (2) The provision of Order 41, Rule 22 and 33 of the Code of Civil Procedure, 1908, shall, so far as may be, apply to the appeals filed under the Act." 10. (2) The provision of Order 41, Rule 22 and 33 of the Code of Civil Procedure, 1908, shall, so far as may be, apply to the appeals filed under the Act." 10. Therefore, there cannot by any doubt that on and w.e.f. 15.1.2005 Cross Objections would be maintainable under order 41 Rule 22 in an appeal filed under the Motor Vehicles Act. The question is — whether this amendment to the Rules can be given retrospective effect and it can be held that the cross objections filed prior to the coming in force of these Rules are validly constituted or not? 11. The Full Bench has clearly held that the right to file cross objections is a substantive right. An amendment giving a substantive right cannot be treated to be retrospective unless it is specifically provided for. In the present case there is nothing to show that the amendment to the Rules has been made with retrospective effect. As such it has to be held that the amendment to the Rules shall be prospective. The same shall be applicable to all appeals pending on 15th January, 2005. 12. On behalf of the Cross Objections it has been prayed that the Cross Objections which were filed earlier were filed under the bonafide belief that cross objections were maintainable since this was the law laid down by a Division Bench of this Court and was being consistently followed. The prayer that the cross-objections be treated to have been filed under the new Rules cannot be accepted unless an appropriate application is moved for treating the cross objections to have been filed under the new Rules. Even if the old objections are then treated to be filed under the new amended Rules they can only be deemed to be filed on 15th January, 2005 and not earlier and, therefore, application for condonation of delay shall also have to be filed. In case any such applications are filed the same shall be dealt with separately. List the main appeals for hearing in the second week of July, 2005.