2017(4) ALL MR (JOURNAL) 11
(RAJASTHAN HIGH COURT)
VIJAY KUMAR VYAS, J.
Smt. Norti & Ors. Vs. Murad & Ors.
S.B. Civil Misc. Appeal No.1207 of 2005,S.B. Civil Cross Objections No.47 of 2005
23rd November, 2016.
Petitioner Counsel: Shri RAM SINGH RATHORE
Respondent Counsel: Shri PRAVEEN JAIN, Shri SANDEEP MATHUR, Shri KAPIL SHARMA
Motor Vehicles Act (1988), S.173 - Civil P.C. (1908), O.41 R.22 - Rajasthan Motor Vehicles Rules (1990), R.10.31 - Appeal u/S.173 - Cross-objection - Maintainability - Held, in case of cross-objection also all formalities with regard to an appeal to be followed by mandate of S.173, are necessary to be observed - Just like an appeal, when a person who is required to pay any amount in terms of impugned award, raises cross-objection under O.41 R.22 CPC, he is required to deposit Rs.25000/- or 50% of award amount whichever is less - Failing which the cross-objection would not be entertained. 2013 ACJ 2295 Ref. to. (Paras 19, 20)
New India Assurance Co. Ltd. Vs. Satpal Singh and Others, 2000(1) ALL MR 346 (S.C.)=2000 ACJ 1 [Para 5,8,11,15]
Rajesh & Ors. Vs. Rajbir Singh & Ors., 2014 ALL SCR 2434=MACD 2013 (SC) 186 [Para 7,22]
P.P. Mohammed Vs. K. Rajappan and Others, 2003 ACJ 1595 [Para 8,13]
Oriental Insurance Co. Ltd. Vs. Sunita Rathi, 1998 (SC) 257 [Para 10,14]
The General Manager, United Insurance Co. Ltd. Vs. M. Laxmi and Ors., 2008(6) ALL MR 951 (S.C.)=2009 AIR (SC) 626 : 2009(17) SCC 301 [Para 10,11,15]
National Insurance Company Vs. Balakrishnan, 2013 ALL SCR 104=AIR 2013 SC 473 [Para 11,15]
New India Vs. Asharani, AIR 2003 SC 607 [Para 11,15]
Oriental Insurance Co. Ltd. Vs. Bannemma and Ors., 2013 ACJ 2295 [Para 19]
Smt. Sarla Verma and Ors. Vs. Delhi Transport Corporation and Anr., 2009(4) ALL MR 429 (S.C.)=2009 ACJ 1298 [Para 22]
2. The appeal has arisen out of judgment dated 28.3.2005 passed by learned Additional District Judge (Fast Track) No.7, Jaipur City, Jaipur - cum - Motor Accident Claims Tribunal (For short "the Tribunal"), in Motor Accident Claim Case No.260/2004, whereby a claim of Rs.16,93,120/- has been awarded in favour of appellants and against respondent No.1 Murad, along with interest at the rate of 9% per annum from the date of presentation of the claim petition dated 14.8.2002, till realisation of the amount. Claim against respondent No.2 Gopal Lal Daroga and No.3, National Insurance Co. Ltd., was rejected.
3. Aggrieved by the impugned judgment, the claimants have preferred this appeal for enhancement of the award and also to held liable respondents No.2 and 3 as well, to pay the compensation. On the contrary, respondent No.1 Murad preferred cross objections with a prayer to quash and set aside the impugned award passed against him. In alternative, also with a prayer if the claimants are found entitled to receive any amount of compensation, then the entire liability of paying compensation be fastened on respondents No.2 and 3.
4. In Brief, facts of the case are that when deceased Tejpal was going towards Dudu in Jeep No.RJF-9234, driven rashly and negligently by respondent No.1 Murad, caused an accident with a tractor. As a result, the jeep was turtled. Tejpal died on the spot. Wife, three children and parents of the deceased preferred a claim petition for compensation of Rs.47,55,000/- against respondents. Learned Tribunal decided the petition vide judgment impugned and awarded the claim as stated hereinabove.
5. Learned counsel for claimants submitted that as per insurance policy (Ex.5), the insurance company has charged premium of Rs.509/- to cover the risk of passengers of the Jeep No.RJF-9234. The deceased was traveling not on hire / reward basis in the jeep. Murad (NAW- 2), driver of the jeep, stated before the Tribunal that he did not charge anything from the deceased. The deceased known to him, was traveling along with other family members of the witness. Being gratuitous passenger, his risk was covered by insurance policy as a third party. He referred in support, New India Assurance Co. Ltd. vs. Satpal Singh and Others, 2000 ACJ 1 : [2000(1) ALL MR 346 (S.C.)].
6. Learned counsel for the claimants submitted that at time of accident, registered owner of the jeep was respondent No.2. The registered owner cannot be absolved from his liability until registration is transferred in other's name. Therefore, respondent No.2 has wrongly been absolved from liability of compensating the claimants.
7. Learned counsel for the claimants also submitted that learned Tribunal has not granted sufficient amount toward loss of consortium and loss of love & affection which is liable to be enhanced to the extent of Rs.1,00,000/- for each claimant. Meager amount of Rs.5,000/- awarded for expenses to meet out the funeral, also deserves to be enhanced to the extent of Rs.25,000/-. In support, he has referred Rajesh & Ors. vs. Rajbir Singh & Ors., MACD 2013 (SC) 186 : [2014 ALL SCR 2434].
8. Learned counsel for respondent No.1 Murad, who preferred cross objections, submitted that until the registration of a vehicle is transferred in name of other person, the registered owner continues to be liable to compensate the claims under Motor Vehicles Act. Respondent No.2 Gopal Lal Daroga has been examined before the Tribunal as NAW-3. He has admitted that though he had sold the jeep prior to the accident to respondent No.1, yet the Registration Certificate was in his name. He has referred P.P. Mohammed vs. K. Rajappan and Others, 2003 ACJ 1595. Learned counsel has further submitted that Babu Lal Parewa (NAW-4) has been examined on behalf of the insurance company. He has exhibited the Insurance Policy as Ex.NA-1. As per Ex.NA-1, premium has been charged for passengers/driver and third party. Apex Court has held in Satpal Singh's case, [2000(1) ALL MR 346 (S.C.)] (supra) that even gratuitous passenger is covered by a third party insurance policy.
9. Learned counsel for the insurance company submitted that as per section 173 of the Motor Vehicles Act, cross appeal cannot be preferred without depositing at least Rs.25,000/- and thus, the cross objection filed by respondent No.1 is not maintainable.
10. Learned counsel further submitted that unless the registered owner of the vehicle is held liable, the insurance company cannot be held responsible for the payment of compensation, indemnifying the registered owner. He has referred Oriental Insurance Co. Ltd. Vs Sunita Rathi, 1998 (SC) 257. He has further submitted that in the instant matter, the vehicle was insured for third party only. Premium has been charged accordingly. He has relied upon The General Manager, United Insurance Co. Ltd. vs. M. Laxmi and Ors., 2009 AIR (SC) 626 : [2008(6) ALL MR 951 (S.C.)].
11. Learned counsel has further submitted that the vehicle was insured under the "Act Only Policy". It is well settled law that under the "Act Only Policy", a risk of the occupant including gratuitous passenger in the private vehicle, would not be covered. He has cited The General Manager, United India vs. M. Laxmi, reported in 2009(17) SCC 301 : [2008(6) ALL MR 951 (S.C.)] and National Insurance Company vs. Balakrishnan, reported in AIR 2013 SC 473 : [2013 ALL SCR 104]. Learned counsel also submitted that Satpal's case, [2000(1) ALL MR 346 (S.C.)] (supra) has been over-ruled by New India vs. Asharani reported in AIR 2003 SC 607.
13. Gopal Lal Daroga (NAW-3) has deposed before the Tribunal that at the time of accident, the vehicle in question was registered in his name though he had sold the vehicle prior to the accident to the respondent Murad. But, in the RTO record, the ownership has not been transferred. Apex Court, in similar situation, has held in P.P. Mohammed's case (supra) that the person in whose name registration continues, will remain liable to a third person. However, the person in actual possession would also be liable. Therefore, in the instant matter, respondent Gopal Lal Daroga is also found responsible for payment of compensation along with the respondent Murad.
14. Apex Court, in Sunita Rathi's case (supra) has held that the liability of the insurer arises only when the liability of the insured has been upheld for the purpose of indemnifying the insured under the contract of insurance. Since the registered owner of the vehicle, the insured, has been held in preceding para, liable to compensate the claimants, respondent No.3, the insurer of the same may also be held liable for compensation, indemnifying the insured i.e. Gopal Lal Daroga, under the contract of insurance.
15. In Satpal Singh's case, [2000(1) ALL MR 346 (S.C.)] (supra), it was held that an insurance policy covering third party risk is not required to exclude gratuitous passenger in a vehicle, no matter that the vehicle is of any type or class. But, the law laid down in Satpal Singh's case, [2000(1) ALL MR 346 (S.C.)] (supra) has been held in M. Laxmi's case, [2008(6) ALL MR 951 (S.C.)] (supra) to have not been correctly decided and held that the insurer will not be liable for paying compensation to the owner of goods or his authorised representative on being carried in a goods vehicle when that vehicle meets with an accident and the owner of goods or his representative dies or suffers any bodily injury. Relying upon the law laid down in Asharani's case (supra), Apex Court has further held that unless the policy in question covers the gratuitous passenger, such person cannot proceed against the concerned insurance company for any compensation. Although the observations made in Asharani's case (supra) were in connection with carrying passengers in a goods vehicle, the same would apply with equal force to gratuitous passengers in any other vehicle also. Apex Court has further held in Balakrishnan's case (supra) that the insurance company is liable to pay a person traveling in the car, if the policy taken by the registered owner was comprehensive / package policy and not if the policy taken was "Act Only". In the instant matter, the policy of insurance purchased by the registered owner of the vehicle in question is "Act Only Policy", which can cover risk of only a third party, which cannot be a gratuitous passenger. Therefore, the submissions made on behalf of claimants cannot be accepted and deceased being gratuitous passenger, his legal heirs can claim the damages from owners of the vehicle only. The Insurance Company cannot be asked to indemnify such claim under "Act on Policy".
16. As per section 173 of the Motor Vehicles Act, no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty five thousand rupees or fifty per cent of the amount so awarded, whichever is less in the manner directed by the High Court.
17. As per R.10.31 of the Rajasthan Motor Vehicles Rules, 1990, the provisions of Order XXI and Order XLI in the First Schedule to the Code of Civil Procedure shall mutatis mutandis apply to appeals preferred to High Court under section 173.
"22. Upon hearing respondent may object to decree as if he had preferred a separate appeal. - (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also stated that the finding against him in he Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection 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 may see fit to allow. [Explanation - A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent]
(2) Form of objection and provisions applicable thereto. - Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) 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.
(4) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule."
19. On conjoint reading of section 173 of the M.V. Act, R.10.31 of the Rajashtan Motor Vehicles Rules, 1990 and O. XLI R.22 of Code of Civil Procedure, it culls out that in an appeal preferred before the High Court u/s 173 of the M.V. Act, cross-objection as enshrined in O. XLI R.22 Sub-Sec. (1) of Code of Civil Procedure may be taken by any respondent. In The Oriental Insurance Co. Ltd. vs. Bannemma and Ors., 2013 ACJ 2295 also, it has been held that in an appeal u/s 173 of the M.V. Act, cross-objection filed by respondent is maintainable.
20. Since heading of O. XLI R.22 of CPC itself denotes that cross-objection may be taken by respondent as if he had preferred a separate appeal, that means in case of cross-objection also all the formalities with regard to an appeal, to be followed by mandate of section 173 of the M.V. Act are necessary to be observed. Every appeal preferred before the High Court against an award passed under Motor Vehicles Act, appellant is required to deposit with the High Court twenty five thousand rupees or fifty per cent of the amount awarded, whichever is less, failing which the appeal by a person who is required to pay any amount in terms of award impugned shall not be entertained by the High Court. On the same corollary when a person who is required to pay any amount in terms of the impugned award cannot raise cross-objection under O.41 R.22, CPC without depositing twenty five thousand or fifty per cent of amount of award.
21. In the instant matter, respondent No.1 Murad has filed cross-objection before the High Court in the appeal preferred by the claimants. As per Tribunal, respondent Murad is the sole person against whom the award is passed. Therefore, it was mandatory for him to deposit at least twenty five thousand rupees or fifty per cent of the amount, whichever is less, of award before filing cross-objection. Since respondent Murad has not deposited the said amount prior to preferring cross-objection, the cross objection submitted by him cannot be entertained.
22. So far as quantum of compensation is concerned, considering Smt. Sarla Verma and Ors. vs. Delhi Transport Corporation and Anr., 2009 ACJ 1298 : [2009(4) ALL MR 429 (S.C.)] and Rajesh's case, [2014 ALL SCR 2434] (supra), in the count of loss of consortium, the compensation of Rs.10,000/- in favour of claimant No.1, wife of the deceased, awarded by the Tribunal, is quite on lower side and requires to be enhanced upto Rs.1,00,000/- and in the count of loss of love & affection, the compensation of Rs.5,000/- each awarded to claimants No.2 to 6, is required to be enhanced upto Rs.10,000/- each.
|S. No.||HEAD||AWARDED BY TRIBUNAL||AWARDED BY THIS COURT|
|1||Loss of Income||Rs.16,53,120/-||Rs.16,53,120/-|
|2||Loss of consortium to wife||Rs.10,000/-||Rs.1,00,000/-|
|3||Loss of love & affection to claimants No.2-6||Rs.25,000/-||Rs.50,000/-|
24. Thus, the total compensation payable to the appellants is enhanced by Rs.1,35,000/- as detailed out above. The claimants will be entitled to interest @ 9% p.a. on the enhanced amount of compensation from the date of filing the application, till the date of realisation.
25. Accordingly, the appeal preferred by claimants is partly allowed. The cross objection preferred by respondent No.1 Murad is rejected. The compensation awarded shall be apportioned amongst the appellants, as stated hereinabove. The compensation shall be payable by respondents No.1 and 2, jointly and severally. The respondents No.1 and 2 shall either pay the amount of compensation by way of Demand Draft/s in favour of the claimants or deposit the same with interest as awarded even on the enhanced compensation before the Tribunal after deducting the amount already paid to the claimants within six weeks from the date of receipt of certified copy of this judgment.