MANSUKHLAL Vs. BHAGWANTIBAI

JUDGEMENT

(1.) THE National Insurance Company Limited, the insurer of the Vehicle, after joining the insured, i.e. the owner of the vehicle, has preferred this appeal against the award dated 12-8-80 passed in Claim Case No. 33 of 1978 by Shri L.J. Mandlik, Member, Motor Accident Claims Tribunal, Ujjain.

(2.) SHORT facts leading to this appeal are that one Nandkishore died in a motor accident on 22-8-78 in the night between 11 and 12 midnight, near Bhatawal Talkies, Ujjain, by the use of motor vehicle No. RRR 3963, which was being driven at the relevant time by the driver Ibrahim. The Tribunal held that the accident occurred due to rash and negligent driving of the vehicle and as such, the insurer, the owner and the driver are jointly responsible to pay compensation to respondents No. 1 to 4, the legal representatives of the deceased, who filed an application Under Section 110-A of the Motor Vehicles Act, 1939, (for short "the Act"). While considering the award of compensation, the Tribunal assessed the monthly dependency at the rate of Rs. 300/- per month. The Tribunal also found the age of the deceased at the time of accident as 50 years. Multiplier of the compensation was calculated for 15 years and after deducting the lumpsum deductions for uncertainties of life and for payment in lumpsum, the respondent-claimants were held to be entitled to the compensation of Rs. 27,000/- with interest at the rate of 6% per annum on the said amount from the date of application till payment. Aggrieved of this award, the owner and the driver have filed this appeal, which was admitted on 6-3-81. After notice, claimant-respondents preferred cross-objections under Order 41 Rule 22 CPC. for enhancement of the award of compensation of Rs. 49,000/- instead of Rs. 27,000/- and interest thereon.

(3.) FACING with this situation, Shri S.D. Sanghi, Senior Advocate with Shri VS. Dandwate and Shri Iqbal Hussain, learned Counsel for the respondents, submitted before this Court that in this situation, the appeal will be deemed as not maintainable and when the appeal is dismissed as not maintainable, the cross-objections Under Order 41 Rule 22 C.P.C. filed by the claimants for enhancement of compensation and interest will also automatically go. It will be deemed in law that no appeal or valid appeal was filed at any time and the claimants cannot get any benefit of Order 41 Rule 22(4) C.P.C. as the appeal is neither withdrawn nor dismissed for default Learned Counsel also contended that this Court can also not exercise the powers Under Order 41 Rule 33 C.P.C. for enhancing of com pensation or for award of interest nor the cross-objections can be treated as an independent appeal, as the appeal has become barred by time and the question of court-fee etc. will arise. In support of his contentions, a ple thora of case laws was cited by the learned Counsel on the question that when an appeal is held to be not maintainable, the cross-objections are also to be rejected He placed reliance on Division Bench and Single Bench cases of this Court and also various cases of other High Courts in Radhey Shyam v. Chimanlal 1966 MPLJ Note No. 34, Municipal Committee Khandwa v. Ratanlal 1969 JLJ Note 76, Purushottam v. Devkaran AIR 1939 Nagpur 39, Ramkishandas v. Vinodiram Balchand 1961 JLJ 1218, National Insurance Co. Ltd. v. Rita Nigam 1985 MPWN Note No. 572; Balwantsingh and Anr. v. State of M.P. and Anr. 1986 MPLJ 571; Chanchalgauri v. Narendrakumar ; Ramchand v. Smt. Ramku and Ors. ; Malhati Tea Syndicate Limited v. Revenue Officer ; Lt. Col P.H. Chnudhary v. Altaf Ahmad and anr. ; C.P. Mehra v. Smt. K.K. Mehra ; Charity Commissioner v. Padmavati ; B. Avadhnarain Singh and Ors. v. Badriprasad Singh and Anr. AIR 1944 Oudh 57; Abdullamiya V. Mahomedmiya AIR 1949 Bombay 276; Kashiram v. Ranglal AIR 1941 Bombay 242; U. Shin v. Maung Tha Gywe AIR 1931 Rangoon 38; Ajmersingh v. Ramsingh AIR 1932 Nagpur 41. Shri Sanghi, for his submission that the cross-objections cannot be treated as an appeal, relies on the cases and a Division Bench case of the Bombay High Court in Paama Devi v. Kabal singh 1985 ACJ 382 and a Division Bench case of the Karnatka High Court in National Insurance Co. Ltd. v. H.N. Rana l985 ACJ 864; and also that when an appeal is dismissed and the decree is not reversed or modified, the power Under Order 41 Rule 33 C.P.C. to adjudicate the rights of the parties according to justice, equity and good conscience cannot be exercised as powers Under Order 41 Rule 33 C.P.C. are to be exercised in view of the other provisions of the C.P.C. and the provisions of other laws. Learned Counsel placed reliance on the case of the Apex Court reported in Choudhary Sahu v. State of Bihar ; a Division Bench case of this Court reported in The British Indian General Insurance Co Ltd. v. Seth Ramnath , a Division Bench case of the Bombay High Court reported in 1985 ACJ 382 (supra), Durga Prasad v. Manaklal 1981 MPW. Notes Vol. 2 Note No. 88, and a recent judgment delivered by me in Abdul Karim v. Hafiz Mohammad Civil Second Appeal No. 482 of 1983 decided at Indore on 28-10-88.