HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:189608 Court No. - 9 Case :- CROSS OBJECTION No. - 115 of 2023 Objector :- Smt. Seema Devi And 3 Others Respondent :- Icici Lombard General Insurance Co. Ltd. Counsel for Objector :- Uma Nath Pandey,Rakesh Kumar Porwal Counsel for Respondent :- Rahul Sahai Hon'ble Rohit Ranjan Agarwal,J.
In Re: Civil Misc. Delay Condonation Application No.05 of 2023 Heard Sri Rakesh Kumar Porwal, learned counsel for the respondents no.1 to 3 and 5 and Sri Aditya Singh Parihar, learned counsel for the appellant.
The cross objection/cross appeal has been filed with the delay of almost 7 years. The judgment and award passed by Motor Accident Claims Tribunal, Bijnor in MACT Case No.88 of 2013 (Smt. Seema Devi and others Vs. Shehnawaz Chaudhary and others) is dated 06.08.2016.
The respondents before this Court had preferred a caveat application and were heard by this Court when the award was challenged by the Insurance Company/appellant. This Court on 01.12.2016 had admitted the appeal and issued notices to the respondents.
The earlier counsel representing the respondents no.1 to 3 and 5 did not file any cross objection/cross appeal, and it was in the year 2023 as alleged in paras 3 to 6 of the delay condonation application filed in the cross objection/cross appeal that a new counsel was engaged by the contesting respondents and they were advised to file cross objection/cross appeal.
Sri Porwal, learned counsel appearing for contesting respondents states that various issues have not been decided and dealt with by the Tribunal while deciding the MAC case and the award has wrongly been made. He has relied upon the decision of Karnataka High Court in case of Karnataka State Road Transport Corporation Vs. R. Sethuram, 1996 0 Supreme (Kar) 247, wherein the Court while interpreting the provisions of Order 41 Rule 22 CPC had held that though the proviso provides for filing of the cross objections within one month from the date of service of notice, but the Court found that the cross objections cannot be rejected as time barred. He further submitted that there are various issues which can only be decided when the cross objections are allowed.
On the contrary, Sri Aditya Singh Parihar, learned counsel appearing for Insurance Company has heavily relied upon the decision of the Apex Court rendered in case of Ranjana Prakash and Ors. Vs. Division Manager and Another, 2012 AIR SCW 848. Paragraphs 6, 7 and 8 are extracted hereas under:-
"6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased.
But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross-objections.
7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer. Be that as it may.
8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."
He further contends that the engagement of subsequent counsel after seven years would not make the cross objection maintainable as proviso to Order 41 Rule 22 of CPC provides for limitation of 30 days for filing the cross objections.
I have heard learned counsel for the parties and perused the material on record.
This is a case where the award was made in the year 2016. The appeal was filed by the appellant-Insurance Company challenging the judgment and award of the Motor Accident Claims Tribunal which was contested by the contesting respondents by filing a caveat application.
It is not a case where the respondents had not appeared, or notices were to be issued to them and it was after lapse of seven years that a new counsel was engaged by the contesting respondents wherein cross objection has been moved. Order 41 Rule 22 provides as under:-
"(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the 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 Appellant 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) Unless the respondent files with the objection a written acknowledgement from the party who may be affected by such objection or his pleader of having received a copy thereof, the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent.
(4) 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.
(5) The provisions-relating to appeal by indigent persons shall, so far as they can be made applicable apply to an objection under this rule."
From the reading of provisions of Order 41 Rule 22 of CPC, it is clear that any respondent, though he may not have appealed from any part of decree, may not only support the decree to the decree which he could have taken by way of appeal, provided he has filed such objection in Appellate Court within one month from the date of service on him or his pleader of notice on the next date fixed for hearing of the appeal.
The provision of Rule 22 of Order 41 of CPC provides that the respondents have liberty of filing cross objection/cross appeal within 30 days from the date of service upon him or his pleader. In the instant case, a caveat application was moved by the respondents under Section 148 (A) CPC and at the admission stage itself, the appeal was contested. The respondents after seven years cannot come and say that he did not have the knowledge of notice of the case and merely by change of subsequent counsel, a cross objection would be maintainable before this Court.
The judgment relied upon by the respondents' counsel in the case of R. Sethuram (supra) is distinguishable in the present case, as the appeal was contested by the respondents at the admission stage itself, and it was by the introduction of subsequent counsel after seven years that the cross objections have been preferred.
Order 41 Rule 22 of CPC clearly provides the period of limitation for filing cross objection/cross appeal which is 30 days, as the period have elapsed and there is no plausible explanation given in the delay condonation application by the contesting respondents and only averment has been made that it was on the advice of the subsequent counsel, who have been engaged after seven years, that cross objections were filed.
After hearing counsel for the parties, this Court finds that the cross objection filed by the contesting respondents have been filed at highly belated stage i.e. after seven years which cannot be entertained by this Court.
Accordingly, application for condoning the delay in filing the cross objection/cross appeal stands dismissed.
As the delay condonation application has been dismissed, the cross objections/cross appeal are not maintainable and the same stand dismissed.
Order Date :- 3.10.2023 SK Goswami