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2016 DIGILAW 314 (UTT)

Rai Singh v. Mast Ram Shetri

2016-07-05

SERVESH KUMAR GUPTA

body2016
JUDGMENT : Servesh Kumar Gupta, J. 1. Both these appeals and cross-objections pertain to the same accident nay between the same litigating parties, hence are being taken for adjudication jointly by this Court. 2. Both these appeals have been filed with the delay of 295 days’, wherefor the sole explanation has been stated that the appellants are the illiterate persons hailing from the remote hills. Hence, they could not manage to file the appeal within the statutory limit. 3. It is pertinent to mention that both the appeals have been filed to fasten the whole liability upon the insurer, instead of 50%, as awarded under the impugned judgment. I feel that such an inordinate delay in filing the appeal, wherefor the explanation by the appellants, as indicate above is insufficient and not acceptable to this Court. So, on this ground alone both the appeals are liable to be dismissed. The same are hereby dismissed. 4. As regard the cross-objections, the learned counsel on behalf of the motor owner has relied upon the precedent of Hon’ble Apex Court showing the maintainability of these cross-objections and such case is, “Ranjana Prakash and others vs. Divisional Manager and another,” (2011)14 SCC 639 . The Hon’ble Apex Court in Para No.7 of such judgment has interpreted the scope of Order 41 Rule 33 of CPC with a clear example. It is being reproduced here in the same words. “This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.” 5. So, I feel that the cross-objections are hereby maintainable. 6. The argument of learned counsel for the respondent no.1 is that the insurance company should be held responsible for satisfying the highest 31 awards, as per the ratio laid down in National Insurance Company Ltd. vs. Anjana Shyam & others reported in 2007(4) TAC 48 (SC). Such satisfaction of awards shall be in the descending order and out of the consolidated amount, all the dependants of the deceased as well as the injured will get the compensation proportionately. Rest of the amount will be exigible from the owner of the offending vehicle. 7. I think there is nothing wrong in the submissions of learned counsel for the owner of the vehicle because such a cardinal principle has already been dealt with by this Court in the similar appeals arising out of the same accident, which have been adjudicated by this Court today itself. 8. So, in the light of observations, as have been set forth above, the application for cross-objection (CLMA No.6202 of 2016) stands disposed of accordingly.