NEW INDIA ASSURANCE COMPANY LIMITED Vs. BHARAT BHUSHAN

JUDGEMENT

(1.) In Rameshwar Prasad and others v. Shambehari Lal Jagannath and another, AIR 1963 SC 1901, it was held that the provisions of Order 41 Rule 4 and Order 22 Civil Procedure Code deal with different stages of the appeal and provide for different contingencies Rule 4 of Order 41 applies to the stage when an appeal is filed. Order 22 operates during the pendency of an appeal and not at its institution. Moreover, as explained in State of Punjab v. Nathu Ram, AIR 1962 SC 89, Order 22 Rule 4 does not provide for the abatement of an appeal against the co-respondent of the deceased respondent and as such there can be no question of abatement of the appeal against him. To say that the appeal against the co-respondent abated is not a correct statement of law. The correct position is that looking to the nature of the relief sought in the appeal, if it can proceed against the surviving co-respondent, it may do so Order I Rule 9 enjoins that if the court can deal with the matter in controversy so far as the rights and interest of the appellant and the surviving respondent are concerned it has to proceed with the appeal and decide it. If it cannot so proceed, the appeal has to be dismissed. In Mahabir Prasadv.Jage Ram, AIR 197-1 SC 742, it was observed that the competence of the appellate court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of the several persons against whom a decree is made on a ground which is common to him arid others, is not lost merely because of the person who was jointly interested in the claim, has not been made a party respondent, or if made a party, on his death, his heirs have not been brought on the record. The power under Order 41 Rule 4 Civil Procedure Code may also be exercised when other persons who were parties to the proceedings before subordinate court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons, are either not impleaded as parties to the appeal or are impleaded as respondents. It is, therefore contended that the consequence of the legal representatives of the deceased respondent not having been brought on record is the same as if they were not impleaded at all. That is true. But the question whether a court can deal with an appeal in the absence of legal representatives of a deceased respondent will depend essentially upon the facts of the case. Ordinarily, the question to be asked and answered is whether if the appeal were to succeed, would the court be passing a decree contradictory to the decree which has become final as between the appellants and the deceased ? If the answer is yes, the appeal has to be dismissed. It appears to me that the present is not a case of joint tortreasors as was held in Life Insurance Corporation of India and another v. LRs. of deceased Narambhaj Munjabhi Vadhia, 1973 ACJ 226. The driver is the torfeasor. His liability is vicariously transferred to the owner to be shared by the insurer by virtue of a constract of insurance. Therefore, if the decree against the owner has become final, then the pertinent question is whether insurer can be permitted to dispute the same in the absence of the owner and, if so, to what extent ?

(2.) If the insurer succeed on the contention that it cannot be made to pay the interest in part or whole and costs, then that amount will have to be paid out of the estate of the deceased respondents. Here there is a clash of interests and the insurer cannot be allowed to dispute this part of the decree in the absence of the legal representatives of the deceased.

(3.) If the insurer succeeds on the last contention, viz. penal rate of interest should not have been ordered to be paid, then the decree can be modified even in the absence of the legal representatives and it will enure to their benefit. To that extent the appeal can proceed. The award of interest at twice the rate if the compensation costs and interest were not paid within one month appears no doubt within the powers available under Section 110-CC of the Act. But looking to the course of the proceedings, an award of penal interest does not seem justified..