JUDGMENT MA No.5/2007: Mr. Baldev Singh, Advocate Learned counsel for the appellant submits that in view of change in law, he does not want to press this appeal. The appeal is accordingly dismissed as non pressed. CCROS No.5/2007: Mr. R K Bhatia, Advocate. Mr. Baldev Singh, Advocate for R-3. 1. Notice to other respondents, however, was not issued by this Court in view of fact that the insurance company is the necessary party in these cross objections and the cross-objections can be considered in the absence of other respondents. 2. Having heard learned counsel for the parties and perused the record, I am of the considered opinion that award passed by Motor Accidents Claims Tribunal, Jammu (hereinafter referred to as “the Tribunal”) dated 30.09.2006 impugned in these cross objections deserves to be modified. The learned counsel for the respondent-Insurance Company has taken a preliminary objection to the maintainability of these cross objections. Mr. Baldev Singh, the learned counsel would submit that since the main appeal, in which these cross objections have arisen, has been withdrawn by the Insurance Company and, therefore, these cross objections cannot survive independently. He further submits that in the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”) and the Rules framed thereunder, there is no specific provision providing for filing cross objections and the party aggrieved is only entitled to file an appeal under Section 173 of the Act. It is next contended that even if it is assumed that the cross objections are maintainable under the Act, yet in view of the fact that claimants have accepted the award, they are precluded from filing the cross objections. In support of his submissions, the learned counsel appearing for the respondent-Insurance Company relies upon judgments of High Court of Himachal Pradesh rendered in the case of Lata v. United India Insurance Company Ltd and Ors.(2005 ACJ 857) and National Insurance Company Ltd. V. Amar Chand and Ors., (2006 ACJ 1831). 3. Per contra, learned counsel appearing for the Cross Objectors would submit that under the provisions of the Act and the Rules framed thereunder, there is ample provision made for filing cross objections. He refers to Rule 328 of the J&K Motor Vehicle Rules 1991 to substantiate his submission. 3. Per contra, learned counsel appearing for the Cross Objectors would submit that under the provisions of the Act and the Rules framed thereunder, there is ample provision made for filing cross objections. He refers to Rule 328 of the J&K Motor Vehicle Rules 1991 to substantiate his submission. He would further draw my attention to the provisions of Order 41 Rule 22 (4) which unequivocally provide that the cross objections would survive even independent of the appeal. It is thus submitted that the dismissal of the appeal in which the cross objections have been filed does not affect the cross objections and the same are required to be decided by Court on its merits. In support of his submissions, he relies upon Full Bench decision of the Allahabad High Court rendered in the case of U.P. State Road Transport Corporation v. Smt. Janki Devi, AIR 1982 Allahabad 296, as also Single Bench Judgment rendered in the case of Oriental Insurance Co. Ltd. V. Bannemma And Others, 2013 ACJ 2295 . In support of his submission that cross objections are maintainable even if the main appeal is dismissed, learned counsel for the cross objectors has placed reliance on the judgment of the Supreme Court of India rendered in the case of Hari Shankar Rastogi v. Sham Manohar, 2005 (3) SCC 761 . 4. In the backdrop of the rival contentions urged, the following questions arise for determination. I. What is the effect of withdrawal of appeal on cross objections? II. Whether in an appeal filed under Section 173 of the Motor Vehicle Act, it is permissible for the other side to file the cross objections when the same is not specifically provided under the Act? III. Whether in an appeal filed by the Insurance Company on limited permissible grounds, it is open to the claimants in whose favour the award has been passed to file cross objections? IV. If the Cross-objections are held maintainable, whether the cross objectors are entitled to enhancement of the compensation in the given facts of the case? Q. No.I. Withdrawal of appeal; Effect on cross objections: The issue as to whether the cross objections are maintainable even when the appeal in which they have been filed has been withdrawn, is no longer Res-Integra. If the Cross-objections are held maintainable, whether the cross objectors are entitled to enhancement of the compensation in the given facts of the case? Q. No.I. Withdrawal of appeal; Effect on cross objections: The issue as to whether the cross objections are maintainable even when the appeal in which they have been filed has been withdrawn, is no longer Res-Integra. Once it is held that the provisions of Order 41 are mutatis mutandis apply to appeals preferred to the High Court under Section 173 of the Act, then in view of specific provisions of Order 41 Rule 22 (4), the cross objections would survive, notwithstanding the withdrawal or dismissal of the appeal. For the facility of reference, Sub rule (4) of Rule 22 of Order 41 of the Code of Civil Procedure is reproduced hereunder: “4. 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 objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.” That the scope of the Order 41, Rule 22 has also been explained by the Supreme Court in the case of Hari Shankar Rastogi (supra). The Supreme Court relying upon its earlier judgment passed in the case of Superintending Engineer and Ors. v. B Subba Reddy, 1999 (4) SCC 423 in paragraph 3 of the judgment held thus: “Thus, it is clear that cross objection is like an appeal. It has all the trappings of an appeal. Even when the appeal is withdrawn or is dismissed, cross objection can still be heard and determined.” Before I conclude on the question formulated, it is deemed appropriate to reproduce what was elaborately laid down by the Supreme Court in the case of B. Subba Reddy (supra): “From the examination of these judgments and the provisions of Section 41 of Act and Order 41 Rule 22 of the Code, in our view, the following principles emerge: (1) Appeal is a substantive right. It is a 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 a 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 cross-objection like that on the memorandum of appeal. Provisions relating to appeal by an indigent person also apply to cross-objection. (4) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined. (5) The respondent even though he has not appealed may support the decree on any other ground but if he 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 a quietus to the whole litigation by his accepting the judgment and decree and order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal the 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.” In view of the aforesaid, I am not inclined to agree with the submission of the learned counsel for the Insurance Company that since he has withdrawn his appeal, the cross objections too have ceased to survive. Q. No. II Maintainability of Cross-objections in the absence of specific provisions in the Act: There is no doubt that the appeal against the award passed by the Motor Accidents Claims Tribunal is provided under Section 173 of the Act and there is no specific provision with regard to filing of the cross-objections. Q. No. II Maintainability of Cross-objections in the absence of specific provisions in the Act: There is no doubt that the appeal against the award passed by the Motor Accidents Claims Tribunal is provided under Section 173 of the Act and there is no specific provision with regard to filing of the cross-objections. However, the State of Jammu and Kashmir in the exercise of powers conferred under different sections of the Act has issued The Jammu and Kashmir Motor Vehicles Rules, 1991 vide SRO 276 dated 24.09.1991 and the relevant part of Rule 328 of the Rules which is relevant in the context of controversy raised is reproduced hereinbelow: 328(3) Save as provided in sub rules (1) and (2), the provisions of Order XXI and Order XLI in the 1st Schedule of the Code of Civil Procedure Svt. 1977 (Act of 1977) shall mutatis mutandis apply to appeals preferred to the High Court under Section 173. 5. As rightly contended by the learned counsel for the cross objectors that the two judgments relied upon by the learned counsel for the respondent pertains to the position as is obtaining in the State of Himachal Pradesh. It is submitted that there is no similar rule akin to Rule 328 (3) which is framed by the Government of Himachal Pradesh and at least no such rule had been brought to the notice of the Himachal Pradesh High Court. He, therefore, seeks to draw distinction between the judgment rendered by the Himachal Pradesh High Court on the ground that in view of clear provision made in the Rules issued by the State of Jammu and Kashmir, there is no occasion for anybody including the respondent Insurance Company to contend that cross objections are not maintainable. Independent of the aforesaid argument, the learned counsel for the objectors also places reliance on the Full Bench judgment of the Allahabad High Court in the case of Smt. Janki Devi (supra) in which Full Bench of the Allahabad High Court in paragraph 6 has held thus: 6. That brings us to the question of nature of right to prefer a cross-objection in a pending appeal. In our opinion the right of filing a cross-objection is not different in nature than the right to prefer an appeal by an aggrieved party as provided by the statute. That brings us to the question of nature of right to prefer a cross-objection in a pending appeal. In our opinion the right of filing a cross-objection is not different in nature than the right to prefer an appeal by an aggrieved party as provided by the statute. Section 110-D of the Motor Vehicles Act confers on a person aggrieved by an award of a Claims Tribunals’ right to prefer an appeal to the High Court. It is this very right which an aggrieved party exercises when he prefers a cross-objection in an appeal brought to the High Court by the other aggrieved party. Rule 10 of Order XLI-A introduced by this Court which is in same terms as Clause (1) of Rule 22 of Order XLI of the Civil P.C., enables a respondent who may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he had filed such objection within one month from the day fixed for his appearance in the notice served upon him or within such further time as the Court may deem fit to allow. This provision does not confer any new right on the respondent but only affords him a fresh opportunity to exercise the very same right which he had either under the Civil P. C. or under the special statute. If a person has a right of appeal under Section 96 or Section 100 of the Civil P. C. he may exercise that right within a period of limitation prescribed under the law of limitation and in case he fails to do so, the Court enables him to exercise that very right when the other party has preferred an appeal to the Court competent to hear it. The right to avail of the same procedure is available to a person who has a right of appeal conferred by the special statute, i. e. the right to file a cross-objection is included in the right to appeal conferred by the Statute. Indeed unless the respondent was entitled to appeal, he has no right to take any cross-objection. In the cross-objection he can take only those pleas which he could have taken try way of his right of appeal. Indeed unless the respondent was entitled to appeal, he has no right to take any cross-objection. In the cross-objection he can take only those pleas which he could have taken try way of his right of appeal. These have to be in the form of a memorandum like an appeal, and may be heard and determined even if original appeal is withdrawn or is dismissed for default. All these incidents indicate that there is no material difference between an appeal and a cross-objection except the stage of the proceedings. A Full Bench of the Madras High Court in A. L. A. Alagappa Chettiar v. Chockalingam Chetty (AIR 1919 Mad 784) rules that every party to the insolvency proceedings is given the substantial right of appeal (just as every aggrieved party is given a right of appeal under Sections 96, 97, 100 C.P.C.) and that the respondent (who as a party has such a right of appeal) is merely allowed to avail himself of an additional rule of procedure by way of a memorandum of objection as provided for in Order 41, Rule 22 in exercise of his said right of appeal. The nature of the right of cross-objection was considered by the Madhya Pradesh High Court in Inayatullah Khan v. Diwanchand Mahajan (AIR 1959 Madh Pra 58). There the question was about the right of cross-objection in an appeal filed under Section 116-A of the Representation of the People Act which provided for an appeal to the High Court from the order of the Tribunal. It was further provided that the High Court shall have the same powers, jurisdiction and authority and follow the same procedure with respect to an appeal as if the appeal were from original decree passed by the Civil Court. It was further provided that the High Court shall have the same powers, jurisdiction and authority and follow the same procedure with respect to an appeal as if the appeal were from original decree passed by the Civil Court. Hidayatullah, C. J. speaking for the Bench after considering a number of authorities held:— “There is thus authority for the proposition that a cross-objection may be filed where an appeal lies and has to be disposed of in accordance with the Civil P. C., even though there may be no express provision to confer the right of filing a cross-objection.” It is true that Sub-section (2) of Section 116-A of the Representation of the People Act provided that while hearing an appeal the High Court shall have the same powers, jurisdiction and authority and follow the same procedure, with respect to an appeal under that statute as if the appeal were an appeal from an original decree passed by a civil court but that makes no difference. Once the appeal is before an established Court it imports that the ordinary incidents of the procedure of that Court are to attach to the hearing of the appeal which includes the right to file a cross-objection in the appeal preferred by the other party. The nature of the right of cross-objection has been considered by the Supreme Court in Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar ( AIR 1971 SC 1887 ), while deciding the question of court-fee payable under the relevant provisions of the Bombay Court-fees Act on the cross-objection filed in an appeal under Section 11 of the Requisitioning and Acquisition of Immovable Property Act 1952, it was observed. “The question is whether a cross-objection filed by a respondent in an appeal can be considered as a memorandum of appeal. We have no doubt that it is a memorandum of appeal in substance though not in form. It is a right given to a respondent in an appeal to challenge the order under appeal to the extent he is aggrieved by that order. The memorandum of cross-objection is but one form of appeal. We have no doubt that it is a memorandum of appeal in substance though not in form. It is a right given to a respondent in an appeal to challenge the order under appeal to the extent he is aggrieved by that order. The memorandum of cross-objection is but one form of appeal. It takes the place of cross appeal.” It must, therefore, be held that the right to take a cross-objection in an appeal is nothing but the exercise of the same right of appeal which is given to an aggrieved party and is not any new right conferred by Order 41, Rule 22 or Order 42-A, Rule 10 of the Code. 6. Similar is the view taken by the Division Bench of the Andhra Pradesh High Court in the case of K. Varalaxmi and ors. v. United India Insurance Co. Ltd and others, 2015 ACJ 2232 . The observations of the Division Bench as made in paragraph 23 of the aforesaid judgment are also reproduced hereinbelow: 23. The Division Bench decision of this court in Vasireddy Sujatharani, 2013 ACJ 756 (AP), did not refer the earlier Division Bench judgments of this court about the maintainability of the cross objections in motor accident original petitions. Therefore, the Division Bench decision of this court in Vasireddy Sujatharani, 2013 ACJ 756 (AP), did not overrule the earlier judgment. However, the other Division Bench judgments regarding maintainability of cross-objections are based on the principles laid down by the Apex Court. Therefore, in view of the majority Division Bench judgments of this court, persuaded by the Full Bench judgments of Karnataka and Allahabad High Courts and influenced by the observations made by the Apex Court in Amrit Bhanu Shali, 2012 ACJ 2002 (SC), we find that in the absence of any specific provision about the applicability of provisions of Order 41, rule 22 of the Civil Procedure Code cross-objections are maintainable. 7. There is yet another decision of the High Court of Andhra Pradesh rendered in the case of United India Insurance Co. Ltd v. Gangisetti Naga Lakshmi, 2014 (1) An.W.R.752 (A.P.). The Division Bench of the Andhra Pradesh High Court in the aforesaid judgment framed a specific question as to whether the cross objections are maintainable under the Motor Vehicles Act and answered the same in affirmative by observing as under: “39. Ltd v. Gangisetti Naga Lakshmi, 2014 (1) An.W.R.752 (A.P.). The Division Bench of the Andhra Pradesh High Court in the aforesaid judgment framed a specific question as to whether the cross objections are maintainable under the Motor Vehicles Act and answered the same in affirmative by observing as under: “39. Therefore, in view of the principles laid down by the Apex Court, including the majority Division Bench Judgments of this Court and other High Courts, we are of the considered view that the Cross-objections are maintainable. Accordingly, the point is answered in favour of petitioners-cross objectors and against the second respondent-Insurance Company.” 8. In view of the settled legal position, I am also not inclined to agree with the contention raised by the learned counsel for the respondent-Insurance Company that in the absence of specific provision under Section 173 of the Motor Vehicles Act, the cross-objections by the claimants are not maintainable. Q. No. III. Cross-objections for enhancement of compensation: Whether maintainable in an appeal filed by the Insurance Company, where its defences are limited? Learned counsel for the respondent-Insurance Company has strongly relied upon the judgement of the Himachal Pradesh High Court in the case of National Insurance Company v. Amar Chand (supra), wherein in paragraph 37, the Hon”ble High Court has held as under: “37. Cross-objections for enhancement of compensation by the claimants are not maintainable in an appeal filed by the insurance company where its defences are limited. Hence, the cross-objections are rejected.” 9. In view of the settled legal position discussed above, it is no longer available to the respondent-Insurance Company that cross-objections are not maintainable in an appeal filed under the Motor Vehicles Act. In the instant case, the appeal which was filed by the Insurance Company was not limited to its defences but was on the quantum of compensation awarded and, therefore, there is nothing that prevents the claimants from filing the cross-objections. The judgment relied upon by the learned counsel for the respondent-Insurance Company is, therefore, clearly distinguishable and has been rendered in entirely different set of circumstances. Q. No. IV. Merits of the Cross-objections: After dealing with the preliminary objections raised by the learned counsel for the respondent-Insurance Company, the merits of the cross objections may be considered. The judgment relied upon by the learned counsel for the respondent-Insurance Company is, therefore, clearly distinguishable and has been rendered in entirely different set of circumstances. Q. No. IV. Merits of the Cross-objections: After dealing with the preliminary objections raised by the learned counsel for the respondent-Insurance Company, the merits of the cross objections may be considered. Learned counsel for the respondent-Insurance Company has not disputed that in the instant case the death occurred in a motor vehicle accident and that the claim for compensation is required to be computed in the light of the principles laid down in Sarla Verma and Pranay Sethi’s case. It is established that the monthly salary which the deceased was getting at the time of accident was Rs.9, 385/- and his age at the time of accident was 39 years and therefore, in view of guidelines laid down in Pranay Sethi’s case, 50 per cent of the amount was to be added towards the future prospects. Similarly, since the deceased was survived by six dependants and, therefore, the deduction is required to be made @ one-fourth of the income towards personal and living expenses. The amount payable under the conventional heads like Loss of Consortium, Love and Affection/Estate and Funeral Expenses is required to be paid as provided by the Supreme Court in the case of Pranay Sethi. Learned counsel appearing for the Insurance Company could not dispute the aforesaid position. Accordingly, the amount payable to the cross-objections is computed in the following manner: Monthly Salary : Rs.9,385 Add 50 per cent for future prospects + Rs.4,692 Deduction @ ¼ th for living and personal expenses – Rs.3,519 Total Monthly dependency Rs.10,558 Annual Dependency 10,558 x 12 = Rs.1,26,696 The compensation under the conventional head: Loss of Consortium : 40,000 Loss of Estate : 15,000 Funeral Expenses : 15,000 Total : Rs. 19,70,440 10. The cross-objectors/claimants are also entitled to interest @ 7.5 per cent from the filing of claim petition till its realisation. The award of the Tribunal is thus modified to the aforesaid extent. The cross-objectors are free to withdraw the amount, if any, deposited in the Court and take appropriate proceeding for its full realisation. Cross-objections are, accordingly, disposed of.