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New India Assurance Company Ltd. v/s Anita Devi & Others

    M.A. No. 346 of 2019 with C.O. No. 06 of 2020

    Decided On, 25 August 2021

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE KAILASH PRASAD DEO

    For the Appearing Parties: G.C. Jha, Rahul Gupta, Achinto Sen, Advocates.



Judgment Text

(Through Video Conferencing)

1. Heard, learned Counsel for the Insurance Company, Mr. G.C. Jha and learned Counsel, Mr. Rahul Gupta assisted by learned Counsel for the Claimant, Mr. Achinto Sen.

2. The New India Assurance Company Limited has assailed the impugned award dated 2.3.2019 passed by learned Principal District Judge-cum-Presiding Officer, Motor Vehicle Accident Claims Tribunal, Koderma in Motor Accidents Claim Case No. 16/2017, whereby the claimant namely, Anita Devi has been awarded compensation to the tune of Rs. 15,79,990 along with interest @ 9% per annum from the date of institution of claim application 28.6.2017 till the date of final realization.

3. Learned Counsel for the Insurance Company, Mr. G.C. Jha, has submitted that the Insurance Company is assailing the impugned award on four counts:

(i) That, as per the F.I.R., accident took place on 8.1.2017 at 3.30 p.m. (15:30 Hours) and as per Col. 3 ([k) of F.I.R., information received at Police Station is 18.00 Hours 6.00 p.m., but the F.I.R. instituted on 10.1.2017 at 9.30 a.m., as per entry in Col. (Xk) and (?k), which clearly demonstrates that the F.I.R. instituted after about 48 hours from the occurrence, in the meantime the injured had been taken to Asharfi Hospital, Dhanbad and thereafter taken to Mission Hospital, Durgapur for better treatment, admitted on 10.1.2017, appears to be concocted.

(ii) That the accident took place nearby Koderma, but the injured was taken straightway to Dhanbad, this creates some doubt about the genuineness of the claim application.

(iii) That interest has been awarded @ 9% per annum, which ought to have been @ 7.5% per annum in view of the judgment passed by the Apex Court in the case of Dharmpal and Sons v. U.P. State Road Transport Corporation, reported in III (2008) ACC 1 (SC)=V (2008) SLT 354=(2008) 12 SCC 208.

(iv) That contributory negligence has not been considered by the learned Tribunal and the cross-objection preferred by the claimant for enhancement of the award is not maintainable as before appearance in the present appeal, C.O. No. 06/2020 has been filed, which ought to have been filed as enhancement appeal and not as cross-objection because cross-objection can only be filed under Order XLI Rule 22(1) of C.P.C. within one month from the date of service of notice upon him.

4. Learned Counsel for the Insurance Company has thus submitted that the impugned award may be set aside and the cross-objection C.O. No. 06/2020 may be dismissed.

5. Learned Counsel for the Insurance Company has further submitted that though the Insurance Company has preferred this appeal, but there is delay of 36 days in preferring the appeal and for condonation of same, I.A. No. 6689/2019 has been preferred.

6. Learned Counsel, Mr. Rahul Gupta assisted by learned Counsel for the Claimant, Mr. Achinto Sen has submitted that Cross-objection has been filed on 15.9.2020 during pendency of the miscellaneous appeal, which has been preferred by Insurance Company on 16.7.2019. The claimant can prefer enhancement appeal in the form of miscellaneous appeal or cross-objection for the same relief.

7. Learned Counsel for the claimant has relied upon the judgment passed by the Apex Court in the case of Mahadev Govind Gharge & Others v. The Special Land Acquisition Officer, Upper Krishna Project, Jamkhandi, Karnataka reported in IV (2011) SLT 196=(2011) 6 SCC 321. Para-22, 23, 25, 28 & 32 of the said judgment is profitably quoted hereunder:

22. The provisions of Rule 22 which have been reproduced by us above give right to a respondent to file cross-objections to the decree under appeal which he could have taken by way of an appeal. This right is available to the respondent provided he had filed such objections in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court maysee fit to allow.

23. A bare reading of the provisions of Rule 22 clearly show that they do not provide for any consequences, leave any adverse consequence, in the event the respondent cross-objector defaults in filing the cross-objections within the statutory period of one month. On the contrary they provide that the cross-objections can be filed within such further time as the Court may see fit to allow. The expression “or within such further time as the Appellate Court may see fit to allow” clearly shows that wide judicial discretion is vested in the Courts to permit the filing of the cross-objections even after the expiry of 30 days or for that matter any period which, in the facts nd circumstances of the case, is found to be just and proper by the Court.

25.Maxwell on the Interpretation of Statutes (12th Edn., by P. St. J. Langan), states as follows:

A reference to the power of a Court being exercisable “at any time thereafter” will receive a literal construction (L. v. L. [1962 P 101: (1961) 3 WLR 1182 : (1961) 3 All ER 834 (CA)]). But where something is to be done “forthwith” by some person or body, a Court will not require instantaneous compliance with the statutory requirement (Sameen v. Abeyewickrema [1963 AC 597 : (1963) 2 WLR 1114 : (1963) 3 All ER 382 (PC)] ). “Forthwith,” Harman L.J. has said, “is not a precise time and, provided that no harm is done, ‘forthwith’ means any reasonable time thereafter”, and so may, according to the circumstances, involve action within days or years (Hillingdon London Borough Council v. Cutler [(1968) 1 QB 124 : (1967) 3 WLR 246: (1967) 2 All ER 361 (CA)]).

28. In Kailash v. Nanhku, (2005) 4 SCC 480, a Bench of three-Judges of this Court while interpreting the provisions of Order 8 Rule 1 of the Code, which has more stringent language and provides no such discretion to extend the limitation as provided to the Courts in Order 41 Rule 22, had observed that despite the use of such language in the provisions of Order 8 Rule 1 of the Code, the judicial discretion to extend the limitation contained therein has been a matter of legal scrutiny for quite some time but now the law is well settled that in special circumstances, the Court can even extend the time beyond the 90 days as specified therein and held as under: (SCC pp. 494-95, paras 27-28)

“27. … The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried. …

28. … In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice.”

32. The learned author while referring to the judgment of this Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425 : (1955) 2 SCR 1 recorded (at p. 384) that:

“while considering the non-compliance with a procedural requirement, it has to be kept in view that such a requirement is designed to facilitate justice and further its ends and therefore, if the consequence of non-compliance is not provided, the requirement may be held to be directory….”

8. Learned Counsel for the claimant has thus submitted that no prejudice is being caused to the Insurance Company because of filing of the cross-objection prior to appearance of claimant in M.A. No. 346/2019 in view of the judgment passed by the Apex Court in the case of Vithalbhai (P) Ltd. v. Union Bank of India, reported in III (2005) SLT 72=(2005) 4 SCC 315 (Paras-22 & 23) and otherwise in a beneficial legislation that too, in Motor Vehicle Accident Claim Cases, where the injured has sustained 100% permanent disability as well as 100% functional disability and the claimant has right to prefer an enhancement appeal either under Section 173 of the Motor Vehicles Act or in form of Cross-objection as nothing will cause prejudice to the Insurance Company, as such, such objection raised by learned Counsel for the Insurance Company may be rejected. Para-22 & 23 of the aforesaid judgment may profitably be quoted hereunder:

22 [Ed.: Para 22 corrected vide Official Corrigendum, No. F.3/Ed.B.J./27/2005 dated 28.3.2005.]—We may now briefly sum up the correct position of law which is as follows:

A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the Court; the Court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the Court to grant decree or not. The Court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiff’s entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the Court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factoRs. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the Court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the Court shall not exercise its discretion in favour of decreeing a premature suit in the following cases: (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the Court’s jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See Samar Singh v. Kedar Nath, 1987 Supp SCC 663.) One more category of suits which may be added to the above, is: where leave of the Court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained.

23. In the case at hand, the act of the plaintiff filing the suit before 25.6.1984 cannot be said to be malicious or intended to overreach the Court. The defendant’s reply dated 8.11.1983 prompted the plaintiff in filing the suit inasmuch as the plaintiff reasonably thought that a cloud was already cast on his entitlement to recover the property and he should promptly approach the Court. True, the defendant could have changed his mind and thought of delivering the possession of the property to the plaintiff on or after 25.6.1984 — the date whereafter only the suit could ordinarily have been filed and in that case there would have been no occasion at all for filing the suit. The defendant filed its written statement much after that date. The objection as to maintainability of the suit was taken in the written statement. If only it would have been pressed for decision and the Court would have formed that opinion at the preliminary stage then the plaintiff could have withdrawn the suit or the Court could have dismissed the suit as premature. In either case, the plaintiff would have filed a fresh suit based on the same cause of action soon after 25.6.1984. By the time the suit came to be decided on 12.2.1992, the dismissal of the suit on the ground of its being premature would have been a travesty of justice when the plaintiff was found entitled to a decree otherwise. The learned Single Judge rightly overruled the defendant’s objection and directed the suit to be decreed. The Division Bench ought not to have interfered with the judgment and decree passed by the learned Single Judge.

9. Learned Counsel for the claimant has further placed reliance upon the judgment passed by the Apex Court in the case of Urmila Devi v. National Insurance Co. Ltd., reported in I (2020) ACC 512 (SC)=(2020) 11 SCC 316 and has submitted that the Cross-Objection may be decided on merits, as there is no restrictions in filing cross-objection or appeal on the basis of co-joint reading of Section 173 of Motor Vehicles Act, Rule 249 of Bihar Motor Vehicle Rules, 1992 and Order XLI Rule 22, C.P.C. Paras-21 to 25 may also profitably be quoted hereunder:

21. As already discussed hereinabove, the learned Single Judge of the High Court himself has observed that in view of Rule 249 of the Bihar Motor Vehicles Rules, 1992, there cannot be any issue with regard to the tenability of the cross-objection. Sub-rule (3) of Rule 249 of the Bihar Motor Vehicles Rules, 1992 would show, that save as provided in Sub-rules (1) and (2), the provisions of Order 41 and Order 21 in First Schedule to the CPC shall apply mutatis mutandis to appeals preferred tothe High Court under Section 173 of the MV Act.

22. A conjoint reading of the provisions of Section 173 of the MV Act; Rule 249 of the Bihar Motor Vehicles Rules, 1992; and Order 41 Rule 22, CPC would reveal, that there is no restriction on the right to appeal of any of the parties. It is clear, that any party aggrieved by any part of the award would be entitled to prefer an appeal. It is also clear, that any respondent, though he may not have appealed from any part of the decree, apart from supporting the finding in his favour, is also entitled to take any cross-objection to the decree which he could have taken by way of appeal.

23. When in an appeal the appellant could have raised any of the grounds against which he is aggrieved, we fail to understand, as to how a respondent can be denied to file cross-objection in an appeal filed by the other side challenging that part of the award with which he was aggrieved. We find, that the said distinction as sought to be drawn by the High Court is not in tune with conjoint reading of the provisions of Section 173 of the MV Act; Rule 249 of the Bihar Motor Vehicles Rules, 1992; and Order 41 Rule 22, CPC.

24. As a matter of fact, it could be seen from the prayer clause in the appeal preferred by the respondents herein (Insurance Company) before the High Court that the entire award was challenged by the respondents -Insurance Company. Not only that, but the appellants herein (the claimants) were also impleaded as party respondents to the said appeal. In such circumstances, the High Court has erred in declining to consider the cross-objection of the appellants herein (the claimants) on merits.

25. There is another angle to it. Sub-rule (4) of Rule 22 Order 4, CPC specifically provides, that even if the original appeal is withdrawn or is dismissed for default, the cross-objection would nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. We are, therefore, of the considered view, that even if the appeal of the Insurance Company was dismissed in default and the Insurance Company had submitted that they were not interested to revive the appeal, still the High Court was required to decide the cross objection of the appellants herein on merits and in accordance with law.

10. Considering the same, the objection raised by the appellant with regard to C.O. No. 06/2020 is hereby overruled and thus, C.O. No. 6/2020 is maintainable.

11. Learned Counsel for the claimant/injured has assailed the impugned award for enhancement by way of cross-objection on the ground that though the quotation, which was marked as X/10 for identification, was on record with regard to artificial limb required to the victim, which costs Rs. 5,75,000 and apart from that future treatment is required to the injured, but the learned Tribunal has not considered the same, as such, the same may be enhanced.

12. Learned Counsel for the claimant /injured has further submitted that the learned Tribunal has not considered the future medical expenses with regard to repair/replace of the artificial limb, as such, this Court may consider the same.

13. After hearing learned Counsel for the parties, the delay of 36 days in preferring the instant appeal is hereby condoned as no counter affidavit has been filed by the claimant.

14. Accordingly, I.A. No. 6689/2019 is hereby allowed.

15. Considering the rival submissions of the parties and on the basis of materials brought on record, it appears that issue which has been agitated by the Insurance Company with regard to credibility of lodging the F.I.R. for an occurrence dated 8.1.2017 to 10.1.2017, this Court is not impressed upon such submission, as such, from the ground taken by the appellant itself, it shows that the information has been received at police station at 18.00 Hours on the same day, meaning thereby such entry has been made in the station diary maintained at police station after lodging of the F.I.R. vide Nawalshahi P.S. Case No. 02/2017 dated 10.1.2017, corresponding to G.R. No. 33/2017, under Sections 279, 337, 338 of I.P.C. against the driver of the offending Truck bearing registration No. WB-39A-2134 and after investigation, police has submitted charge-sheet against the driver namely, Bijay Yadav (O.P. No. 3) vide Charge-sheet No. 100/2017 dated 16.3.2017.

16. From the joint written statement filed by the owner of the offending vehicle, Prakash Yadav (O.P. No. 2) and the driver of the offending vehicle, Bijay Yadav (O.P. No. 3), it is apparent that they have not denied about involvement of the accident, rather they have claimed that vehicle was duly insured and as such, this plea of the Insurance Company is not sustainable.

17. So far taking of the injured to a distant place to Dhanbad and thereafter to Durgapur, this cannot be agitated by the Insurance Company in a beneficial legislation where the primary duty is to save life of a person, who has sustained injury. If the medical facility of Dhanbad is better than Koderma and at that moment the attendant decided to the take injured to a better place, it is not a cogent ground for refuting the claim.

18. So far the contributory negligence is concerned, this Court has perused the impugned award. It appears that the motorcycle driven by the husband of the victim was dashed by the offending truck bearing registration No. WB-39A-2134 from back, as such, it cannot be said that the driver of the motorcycle, Raju Yadav, who is the husband of the victim, has any contributory negligence, rather it is the negligence on the part of the driver of the offending truck and also from perusal of the F.I.R., it appears that the driver of the offending truck was rash and negligent while overtaking the motorcycle and has committed such accident, as such, contributory negligence is negated.

19. So far interest is concerned, which is granted @ 9% per annum, this Court consider that the same is on the higher side, as this Court has consistent view in granting interest pursuant to the judgment passed by the Apex Court passed in the case of Dharampal and Sons (supra), whereby it ought to have been @ 7.5 % per annum from the date of filing of the claim application. Accordingly, out of four issues, only one issue is hereby acceptable, three issues taken by the Insurance Company is hereby negated.

20. Accordingly, M.A. No. 396/2019 is partly allowed.

21. So far Cross-objection is concerned, it appears that the document, which has been bought on record marked as X/10 for identification before the learned Tribunal has not been challenged by the Insurance Company, which completely sho

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ws that the cost for implanting fitment of right above knee prosthesis with hydraulic knee joint + vacuum assisted carbon socket + locking liner + shuttle lock + socket adapter + tube + tube clamp + carbon foot + TES belt + Foam cover + cosmetic Socks + Gait Training is Rs. 4,70,000 and fitment for left below knee prosthesis + vacuum assisted carbon socket + socket adapter + tube + tube adapter + locking liner + shuttle lock + carbon foot + foam cover + cosmetic Socks + Gait Training is Rs. 1,05,000 Total amount = Rs. 5,75,000, which learned Tribunal ought to have granted, but the learned Tribunal has failed to grant the same, as such, this Court is of the opinion that the claimant/injured is entitled for the amount of Rs. 5,75,000 for the artificial limb. 22. Accordingly, Rs. 5,75,000 is awarded to the claimant in addition to the award as passed by the learned Tribunal, along with interest @ 7.5% per annum from the date of filing of claim application. 23. However, the future medical expenses is concerned, liberty is given to the party to agitate the issue of future medical expenses before the competent Court of law after disposal of Civil Appeal No. 4576/2021 (HDFC ERGO General Insurance Co. Ltd v. Mukesh Kumar & Others), pending before the Apex Court. 24. Accordingly, C.O. No. 06/2020 is also partly allowed. 25. If the amount has already been paid by the Insurance Company to the claimant, this enhanced amount shall be paid after calculating interest @ 7.5% from the date of filing of the claim application. However, the amount already satisfied by the Insurance Company shall be deducted from the enhanced amount. 26. If no amount is paid, the entire amount shall be paid by the Insurance Company. 27. The statutory amount deposited by the appellant -Insurance Company in M.A. No. 346/2019 shall be remitted to the learned Tribunal by the learned Registrar General of this Court within a period of four weeks from today. The same shall be disbursed to the claimant after due notice and verification. The balance amount shall be indemnified to the claimant by the Insurance Company within a reasonable time as the victim /injured has lost her both legs in an accident which took place on 8.1.2017. Ordered accordingly.
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