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National Insurance Co. Ltd. v/s P. Korma Rao & Others

    M.A. Nos. 160 & 161 of 1985

    Decided On, 29 April 1991

    At, High Court of Orissa


    For the Appellant: R. Samantaray, Advocate. For the Respondents: Y.S.N. Murty, C.A. Rao, Advocates.

Judgment Text

These two appeals are directed against the award passed by 2nd Motor Accident Claims Tribunal, Southern Division, Berhampur (in short ‘the Tribunal’) on adjudication of two claim petition filed by the dependants of two persons ; one of whom lost his life and the other sustained serious injuries in an accident which took place on 13-9-1980. The respondents 1 to 5 in Misc. Appeal No. 16i of 1985 are the dependants of deceased T. Trinatham. Respondent No. 1. P. Korma Rao in Misc. Appeal No. 160 of 1985, who had sustained injuries died during the pendency of the appeal and has been substituted by his widow P. Parvati.

According to the claimants, the accident took place under the following circumstances. Deceased T. Trinatham was one of the persons who lo

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t their lives and injured P. Korma Rao was one amongst others who received severe injuries while travelling by a bus belonging to the Orissa Road Transport Company Limited (in short ‘the O.R.T.’); the bus was being driven at a high speed; while it was so moving near the crossing of the road which is known as Pathara junction, near Berhampur town a truck coming at a high speed from Chatrapur side dashed against it on the middle portion, as a result of which several passengers died either instantaneously or after a short while, while many others were injured.The O.R.T. disputed the claim of high speed driving of the vehicle, and took the plea that the vehicle was being driven at a normal speed and because of the rashness and negligence of the driver of the truck bearing registration No. MNS 8337 belonging to one Smt. Ombati Devi (hereinafter described as ‘the owner’) the accident occurred and therefore, the O.R.T. had no liability and if at all any compensation was to be paid, the same was to be paid by the owner. The truck was claimed to have been insured with the National Insurance Co. Ltd. (described in short as ‘the Insurance Company’). The insurance company denied its liability taking the specific plea that at the relevant time the vehicle was not insured.The Tribunal held that the dependants of the deceased T. Trinatham were entitled to receive compensation of Rs. 13,500/-, and injured P. Korma was entitled to receive compensation of Rs. 20,000/- for the injuries sustained. The Tribunal, however, held that the collision was due to negligence of drivers of both the vehicles and therefor the owners thereof are liable to pay the compensation equally. The Tribunal directed that the payment was to be made by the insurance company and the O.R.T.The insurance company has challenged the award on the ground that it had no liability to make any payment, since the vehicle belonging to the owner was not insured with it on the relevant date. The claimants have filed cross-objection inter alia submitting that the quantum of compensation as fixed by the Tribunal was low and warranted enhancement. So far as the question whether the insurance company had any liability to pay on the ground of non-insurance is concerned, I find that in M.A. No. 106 of 1985 filed by the insurance company against the award in M.J.C. No. 31 of 1981/150/82 relating to the self-same accident, it was held by judgment dated 26-10-1989 that the vehicle in question was not insured with the insurance company and therefore, no liability could be fixed on the appellant-insurance company. For the reasons described in detail in the said judgment with which I agree, I hold that appellant-insurance company is not liable to reimburse the amount of compensation awarded in respect of the liability of the order.Coming to the question whether the claimants are entitled to any enhancement of compensation, a preliminary objection was raised by the learned counsel for the O.R.T. that even if the cross-objection filed by the claimants is held maintainable, it would not fasten any additional Liability on the O.R.T. because a cross-objection was no maintainable against it. Elaborating it is submitted that a respondent cannot prefer cross-objection against a co-respondent. Attractive though the argument is, it does not stand close scrutiny. Order 41, Rule 22 of the Code of Civil Procedure, 1908 (in short ‘C.P.C.’) permits respondent to prefer an objection against the appellant as a general rule, but there are certain exceptional cases where the objection can be maintained against a co-respondent.Where the relief sought against the appellant in the cross-objection in intermixed with the relief granted to the other respondents so that the relief against the appellant cannot be granted without the question being reopened between the objecting respondent and the other respondents, an objection under Order 41, Rule 22 can be directed against the other respondents. The use of the word “cross-objection” in Order 41, Rule 22 expressesunmistakably the intention of the Legislature that the objection has to be directed against the appellant. The Legislative intent that in exceptional cases an objection can be preferred by a respondent against a co-respondent is apparent by the substitution of the word appellant’ in the third paragraph by the words “die party who may be affected by such objection”. In this context, the provision of section 561 of the Code of 1877 and the provision of Order 41, Rule 22, CP.C. are relevant. This view of mine has the authority of the Supreme Court in the case of Panna Lal v. State of Bombay and others: AIR 1963 SC 1516. A view similar to mine was taken by Gujarat High Court in National Insurance Co., Baroda v. Diwaliben and others: AIR 1982 Guj. 185. However, a contrary view was expressed in New Indian Assurance Co. Ltd., v. Smt. Hemlata Biswas and others: AIR 1983 All. 115 holding that a cross-objection against a co-respondent is not maintainable. With great respect in view of my analysis made, and the decision in Panna Lal’s case (supra), I am in disagreement with the view expressed. The cross-objection is maintainable against the O.R.T.Coming to the residual question whether there is any scope for enhancement of the quantum awarded, I find that the Tribunal has indicated the basis for the computation as made by it The same does not suffer from any apparent infirmity to call for interference. There can be no hard and fast rule relating to the compensation payable in case of an accident. It would depend on several factors. In the case of a death the age of the deceased, the age of the claimants if they are parents; the expected Life-span of an average India? The contribution made by the deceased to the family and several connected factors are to be considered. In the case of injury, the nature thereof, period of hospitalisation if any, loss of income, if any, are to be considered. The Tribunal appears to have considered the relevant aspects and therefore, I do not find any infirmity with the quantum of compensation as made by the Tribunal. The cross-objection so far as the owner and the O.R.T. are concerned are dismissed. So far as the appellant is concerned, in view of my conclusion that it had no liability, the cross-objection against it also fails. It is accepted by the learned counsel for the O.R.T. that no payment has been made by the O.R.T. in respect of the Liability fixed on it by the Tribunal. A decade has passed since the date of accident The owner and the O.R.T. are to pay the amounts payable by each one of them within a period of three months from today with interest at the rate of 6% per annum thereon from the date of application, i.e., 26-/-1983 till realisation, along with cost of Rs. 300/- as awarded by the Tribunal. If the payment is not made within the aforesaid stipulated time, the rate of interest applicable would be 12% per annum.

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