Judgment 1. Insurer’s appeal against the judgment questioning the direction of the Tribunal to indemnify the insured to pay compensation to the claimants. 2. Appeal and cross-objection are admitted and taken up for final disposal by consent. 3. From what learned counsel of both sides have adverted, the genesis of appeals is a motor vehicle accident on 26.06.2007 involving a motor cycle bearing No. KA 37/L1346 and a stationery lorry bearing No. KA 25/8235 in which the rider of the motor cycle Basanna suffered injuries and died. The pillion rider also died in the said accident. The legal heirs of victims lodged claim seeking compensation. 4. The insured owner of the vehicle did not dispute claim averments regarding act of negligence attributed to the driver of the lorry in question. The insurer of the vehicle, who is appellant herein, seriously opposed the claim firstly on the ground that accident has not occurred in the manner averred in the petition and secondly, even if it has occurred involving the lorry in question, it was totally due to act of negligence of the motor cycle rider. In this regard, they referred to the fact situation which reveal the lorry was parked on the road when the riders proceeding in the same direction ignored the vehicle. It is alleged the rider of the motor cycle by negligence did not took care to avoid the vehicle, consequent to which, the motor cycle collided with the stationery lorry at the rear portion generating severe impact injuring the riders. Both succumbed to the injuries. Thus, the contention is that accident was as a result of culpable negligence of the motor cycle rider in which no act of even actionable negligence could be attributed to the lorry driver. 5. In support of these pleas, they have referred to police investigation report in which the rider of motor cycle Basanna was indicated and arraigned for the offences under Sections 279 and 304A of I.P.C. vide Ex.P-2. Since he was dead, the charge abated. They used the final report Ex.P-2 in its support and supplemented it referring to Ex.P-3 panchanama, Ex.P-4 sketch and Ex.P-5 I.M.V. report. 6. Since he was dead, the charge abated. They used the final report Ex.P-2 in its support and supplemented it referring to Ex.P-3 panchanama, Ex.P-4 sketch and Ex.P-5 I.M.V. report. 6. The learned Member of the Tribunal considering the evidence of the claimants through P.W.1 Yamanappa P.W.2 Devamma, P.W.3 Basavaraj in M.V.C. 115/2008 and as also P.W.1 Bannemma and P.W.2 Basavaraj in M.V.C. No.116/2008 opined, such evidence spelled out negligence on the part of the lorry driver in parking the vehicle without the parking lights and other warning signals, and therefore, he was negligent. It absolved the motor cycle rider of contributory negligence and directed that the quantified compensation be discharged by the insurer that is seriously questioned in this appeal. 7. Learned counsel, Sri G.N. Raichur has reiterated the pleas advanced before the trial Court and seeks citations support to his contention on the following decisions- (I) Raj Rani and others vs. oriental Insurance Co. Ltd. And others, reported in 2009 Kant M.A.C. 622 (SC) and (II) Smt. Nasreen Banu and others vs. The Divisional Manager, New India Assurance Co. Limited, Bellary and others, reported in 2009 Kant M.A.C. 241 (Kant). 8. He also questioned maintainability of the cross objection filed by the claimant seeking enhancement relying on the decision of this Court in the case of United India Insurance Co. Ltd. vs. Salauddin Abdulkhadar Maniyar and another, reported in 2009 ACJ 524 . 9. At this juncture, it is necessary that we address the question raised by learned counsel, Sri Raichur regarding maintainability of the cross-objection. 10. In the decision cited by him, the learned single Judge of this court has taken the view that in an appeal filed by the insurer questioning its liability, cross-objection by the claimant for enhancement is not maintainable. To form such opinion, learned single Judge has referred to the decision of the Division Bench ruling of this court in the case of SAVITRI BAI v. DODDAPPA AND ANOTHERS (1981 ACJ 422) where the Division Bench opined that the insurance company being not a party to the proceedings in the claim petition and as it has limited defence to avoid liability only on the question of contravention of terms of the policy, in an appeal preferred by it on that ground, cross-objection filed by the claimant for enhancement is not maintainable. 11. 11. The judgment in the case of SAVITHRI BAI was rendered in the year 1981 referring to the repealed Motor Vehicles Act. But due to change of law as amended by Act No.59 of 1988, a special provision in Section 170 has been engrafted in the Motor Vehicles Act to enable the insurance company to apply to the Tribunal for being impleaded in the proceedings to contest the claim on all grounds that are available to the insured owner of the vehicle in question. The decision of the Division Bench is with reference to Section 110 of the repealed provision and the limited defence of insurer to hold cross objection appeal for enhancement was not maintainable. 12. Section 149 undoubtedly restricts the right of defence of the insurance company except to seek avoidance of liability on ground of alleged violations of terms and conditions of the policy. But once the insurance company applied to be impleaded under Section 170 of the Act, it becomes a party to the proceedings. And on being impleaded acquires right to resist the claim on all grounds that are available to the insured/owner of the vehicle. 13. Besides, this issue shall not hold us for long in view of the decision of a larger Bench of the apex court in the case of UNITED INDIA INSURANCE COMPANY LIMITED .vs. SHILA DATTA & OTHERS ( 2011 ACJ 2729 ) wherein the apex court, referring to the changed position of law relating to grant of compensation, has affirmatively held that it is not necessary for the insurance company to apply for leave under Section 170 of the Act to contest the claim petition on all grounds if it has been impleaded by the claimant and brought into the party array as respondent. In other words, if the insurance company has been brought into the party array in the claim petition as one of the respondents, the apex court held it becomes a party to the proceedings and is entitled to resist the claim on all grounds, irrespective of whether it has applied for permission under Section 170 of the Act. 14. In the instant case, there is no dispute appellants herein were impleaded as respondents in the claim petition on its own volition and therefore, in view of the dictum of the apex court, it is a party to the proceedings. 14. In the instant case, there is no dispute appellants herein were impleaded as respondents in the claim petition on its own volition and therefore, in view of the dictum of the apex court, it is a party to the proceedings. This becomes important for the purpose of deciding whether the cross-objection is maintainable. Undoubtedly it is a result of benefit provided by Order XLI Rule 22, C.P.C. which reads thus: 22. Upon hearing respondent may object to decree as if he had preferred a separate appeal: 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. 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. (Omitted by Act 104 of 1976) 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 object so filed may nevertheless be heard and determined after such notice to the other parties as the court thinks fit. The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule. 15. Therefore, it attaches no fetters. The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule. 15. Therefore, it attaches no fetters. It gives statutorily gives right of appeal to the respondent in the appeal preferred by the adversary to raise cross-objections against the decree impugned in the appeal to vent out his grievance against finding on any issue against him, or denial of any benefit. Rule 22 of Order XLI, C.P.C. does not contain any restriction to permit cross objection. 16. Therefore, if we hold that the grounds of appeal are the test to decide whether the cross-objection is to be allowed or not, we will be re-writing the provision of Order XLI Rule 22, C.P.C. and as Rule 22 does not import any restriction on the right of the cross-objector, the appeal filed by the insurance company under the provision of Section 173 of the Act questioning the award on any ground would permit filing of cross-objections. Therefore, by referring to Section 149 of the Act, we cannot opine that the insurance company’s right of appeal being limited, the claimant cannot seek enhancement through cross-objections, in such appeal. Having impleaded itself to question the claim on all grounds as a party to the proceedings the insurance company enlarges its right of defence which permits it to contest on all grounds available to the owner. It stands at par with any other party in the proceeding and has a right to question has award on all grounds available. In this view, the judgment cited by the learned counsel would not be applicable and in view of the decision of the larger Bench, of he apex court and conspectus of provisions of Sections 149, 170 and 173 of the Motor Vehicles Act, the right of the cross-objector to seek enhancement cannot be curtailed. With this observation, I over-rule the objection raised by Sri. G.N. Raichur that the claimant’s cross-objection is not maintainable. 17. Apart from technical objections raised, impugned award is assailed on the ground Tribunal has unjustifiably fastened act of negligence on the lorry driver, instead of rider of motorcycle. I have re-apprised the evidence. The victims were riders of a motorcycle, and the unfortunate incident has occurred in the right at 11.30 p.m. The situs is highway; width of the road is 30’. I have re-apprised the evidence. The victims were riders of a motorcycle, and the unfortunate incident has occurred in the right at 11.30 p.m. The situs is highway; width of the road is 30’. The right road margin measured from the position of the lorry was 16’ and the lorry had occupied the remaining 14’. It is also not in dispute the driver of the lorry was its custodian. Having parked it, it was incumbent on him to have displayed parking light or hazard light which is mandatory under the rules. He did not adhere to these provisions and had left the vehicle abandoned without warning. There is no evidence to show the area was sufficiently lit to see the stationary vehicle. The motorcycle rider was proceeding in the same direction in which the vehicle was parked at night at night. 18. Thus, we have here two classes of vehicles, viz., a lorry-heavy vehicle and a motorcycle-two wheeler. No doubt the statement of witnesses show the rider rammed into the stationary vehicle creating a serious impact after colliding and suffered injuries. Had no the vehicle been there, the unfortunate victim would have been saved. Thus taking into consideration the position of the lorry parked covering more than 14’ leaving only 16’ on the right side is undoubtedly an act of negligence. 19. The concept of contributory negligence is based on the doctrine of equal contribution, that means, the act of negligence could be measured by the act of omission and also that of commission. In that instant case, what we have to examine is, whether the motorcycle riders could have expected the vehicle to be parked to avoid colliding with it? Since the place where it was parked, no motorist could have expected it, the question of the rider applying sufficient caution does not arise. The precaution which the insurance company expected the motorcycle riders to take was not possible as they could not have expected the vehicle parked. But so far as the driver and insurer of the lorry is concerned, he ought to have been conscious of the fact that he was abandoning the vehicle on the road which had virtually covered half the width and it was possible that motorists will find it difficult to negotiate it if there is oncoming traffic. But so far as the driver and insurer of the lorry is concerned, he ought to have been conscious of the fact that he was abandoning the vehicle on the road which had virtually covered half the width and it was possible that motorists will find it difficult to negotiate it if there is oncoming traffic. Even otherwise, he should have been conscious of the fact that he was causing obstruction in free flow of traffic. Balancing the two, the person who is responsible for indulging in the act of commission has to be held liable rather than the person who had indulged in omission. The fact that the driver of the lorry who was the custodian of the vehicle had parked it without flashing warning sign or hazard light has to be taken as a act of negligence which attracts the provision of Section 279, I.P.C. even though the lorry was stationary. 20. The record of investigation which comprises FIR and final report (charge sheet) filed under Section 173, Cr. P.C. shows the investigating officer has mechanically raised the charge for the offence under the provisions of under Section 279 and 304, I.P.C. against the riders of the motorcycle only on the basis that the lorry in question was stationary. It is evident he has presumed the driver of the lorry cannot be proceeded for negligence as he was not in the process of driving the vehicle. He was not investigated whether parking of the lorry covering a substantial portion of he road without taking proper precautions was an act of negligence or not. Consequent to this improper investigation, one of the deceased riders was arraigned as accused, but as he died, the charge abated. 21. While dealing with claims for compensation by victims of such accidents, though report is filed by the investigating officer will be relevant for consideration, yet the Tribunal is not precluded from deciding the question of negligence in an action under Section 166 of he Motor Vehicles Act. 22. For the reasons discussed above, I am satisfied claimant’s evidence proved there was no negligence in the driving of the motorcycle rider and culpable negligence has to be fastened on the lorry driver. 23. 22. For the reasons discussed above, I am satisfied claimant’s evidence proved there was no negligence in the driving of the motorcycle rider and culpable negligence has to be fastened on the lorry driver. 23. Learned counsel, Sri B.N. Raichur, though has reiterated the plea advanced before the trial court that the motorcycle riders have to beheld responsible for contributory negligence, in view off the decisions of the apex court in the case of (i) Raj Rani and others vs. Oriental Insurance Co. Ltd. and others, [2009 Kant M.A.C. 622 (SC)] and (ii) Smt. Nasreen Banu and others vs. The Divisional Manager, New India Assurance co. Limited, Bellary and others [2009 Kant M.A.C. 241 (Kant)]. 24. I have examined the factual matrix taken into consideration in rendition of those judgments. 25. In the first decision, the motorcycle rider was held to have contributed to the accident by negligence because there was a head-on collision between the vehicles. That is not the fact in the present case. Hence, that decision is not applicable. 26. In the second decision, the Division Bench of this court has taken the view that when the motorcycle rider was proceeding in the same direction as the lorry, and had tried to overtake the lorry, despite lorry driver’s signal, the occurrence took place resulting in the motorcycle colliding with the lorry and this was de to contributory negligence of the motorcycle rider. Such view was taken because the accident occurred while the motorcycle rider was trying to overtake the lorry parked in the same direction. That is not so in the present case. In this view, the decisions are not applicable. 27. Coming to quantification, the claimants’ grievance is, the award is too meagre. Cross-objections are by the wife and children of Basanna. He was a school teacher in a Government School as evidenced from his salary certificate-Ex.P10. He was drawing a salary of Rs.9,858/-. The Tribunal has taken it at Rs.9,758/- adjusting towards professional tax, and reduced it by 1/3rd to quantify loss of dependency. They seek enhancement relying on the benefit of the decision in the case of SARLA VERMA .vs. DELHI TRANSPORT CORPORATION & OTHERS (2009 (6) SCC 121). The insurance company strongly opposes this request. The second ground is, 1/3rd should not have been taken, it should have been 1/4h as proved dependents are four. This is also opposed. 28. They seek enhancement relying on the benefit of the decision in the case of SARLA VERMA .vs. DELHI TRANSPORT CORPORATION & OTHERS (2009 (6) SCC 121). The insurance company strongly opposes this request. The second ground is, 1/3rd should not have been taken, it should have been 1/4h as proved dependents are four. This is also opposed. 28. The fact that the deceased was in permanent employment is not in dispute. Therefore, he had an opportunity of career progression. Prospects of promotion and better earning. If we take his salary as Rs.9,860/-, for the purpose of determining loss of dependency, as he was around 40 years of age, 50% of it had to be added to his salary to fix his income. If we do that, Rs.4,980/- has to be added to Rs.9,860/- which comes to Rs.14,840/-, out of which deducting Rs.200/-towards professional tax, it comes to Rs.14,640/-. 29. The next question is, whether 1/3rd has to be deducted or 1/4th? No doubt the decision permits 1/4th if dependents are more than four. Since it is a case where we have also provided for career progression, 1/3rd may be justified. At that rate, it comes to Rs.9,760/- p.m. Annually it would be Rs.1,17,120/-. The multiplier applicable is 15, and thus, loss of dependency would be Rs.17,56,800/-. To this, has to be added Rs.25,000/- to the wife towards loss of consortium, Rs.10,000/-to each of the claimants 2 to 4 and Rs.20,000/- towards loss to estate and Rs.20,000/- towards funeral expenses. Apart from this, they are also entitled to Rs.60,671/-awarded by the Tribunal towards medical expenses. In all, the claimants are entitled to enhanced compensation of Rs.18,92,471/-. 30. In the result, the appeal filed by the insurance company, viz., M.F.A.21631/09 fails, and M.F.A.Crob.791/11 is allowed, enhancing compensation from Rs.11,79,800/-to Rs.18,92,471/-. It shall carry interest at the rate fixed by the Tribunal and the amount shall be apportioned as follows: Claimant No.1 (wife): 40% Claimant 2 to 4 (children): 20% each They are entitled to proportionate interest. The amount payable to claimants 2 to 4 shall be kept in fixed deposit till they attain majority, and the 1st claimant-mother is permitted to draw periodical interest thereon. Amount in deposit, if any, shall be transmitted to the Tribunal for disbursement.