[Cites 12, Cited by 0]
Bombay High Court
Yasin Arafad Naik Rep. By Natural ... vs Gosai Moda Nazari And 2 Ors on 17 February, 2026
2026:BHC-GOA:290
Suzana
IN THE HIGH COURT OF BOMBAY AT GOA
CROSS OBJECTION NO.1 OF 2026 (FILING)
IN
FIRST APPEAL NO.54 OF 2024
WITH
MISCELLANEOUS CIVIL APPLICATION NO.92 OF
2026
IN
FIRST APPEAL NO.54 OF 2024
1. Yasin Arafad Naik,
Son of Mohamad Iqbal Naik,
12 years of age, student,
Residing at H. No.192, Perri bhat,
Old Goa, Goa 403 402.
2. Aafiya Mohamad Iqbal Naik,
Daughter of Mohamad Iqbal Naik,
8 years of age, student,
Residing at H. No.192,
Perri bhat, Old Goa Goa, 403402 ..
Both represented by their Natural Guardian,
Shri. Shaikh Mohamad Salim,
Son of Shaikh Mazambi,
42 years of age, married,
Residing at H. No.192, Perri bhat,
Old Goa Goa, 403402. ... Appellants/Cross
Objector
Versus
1. Shri. Gosai Moda Nazari,
Son of Moda Nazari,
30 years of age, major, business,
Resident of Malaguri, Mantripukhri,
Imphal, Manipur,
Presently residing at
c/o Shushma Hari Naik,
wife of Hari Naik,
resident of H.No.217,
Page 1 of 12
17th October, 2025
St. Inez Band, Panaji, Goa.
2. Mrs. Shushma Hari Naik,
Wife of Hari Naik,
Resident of H.No.217,
St. Inez Band, Panaji, Goa.
3. Oriental Insurance Company Ltd,
Through its Divisional Manager,
Having its Divisional Office at,
Goveia Chambers, Panaji, Goa. ...
Respondents
Mr Joaquim Godinho, Advocate for the Appellants/Cross
Objector.
Mr. Deepak Gaonkar, Advocate for Respondent No.2.
Ms. Cristabel Afonso, Advocate for Respondent No.3.
CORAM : VALMIKI MENEZES, J.
DATED : 17th FEBRUARY, 2026.
ORAL ORDER:
1. Registry to waive the office objections and register the Cross
Objection and the Miscellaneous Civil Application.
2. The Cross Objection of Respondents No. 1 and 2 has been
listed. The Cross Objection has been numbered XOB/1/2026.
The question before me is whether the cross objection in terms of
Order 41 Rule 22 CPC is at all maintainable, in the Appeal filed by
the Insurance Company against the Award in a Claim Petition.
17th October, 2025
3. In the present case, the Insurance Company has filed First
Appeal No.54/2024 under Section 173 of the Act, which has been
admitted. The Award has held that the Respondent No.1 and 2
have contributed to the negligence which has resulted in the
accident to the extent of 60%, and has apportioned the
compensation in the proportion 40% to be paid by the Insurance
Company and 60% to be paid by Respondent No.1 and 2 who have
filed Cross Objection.
4. The Motor Vehicles Act provides for filing of an Appeal
under section 173 thereof, and does not extend the provisions of
the Civil Procedure Code that deal with presenting appeals (Order
41 and Order 43 CPC), and instead empowers the State
Government to enact rules to regulate the procedure to be
followed by the Motor Accident Tribunal and the Appellate Court.
It is a trite law that the right to file an appeal is a creature of a
statute, and such right can be exercised, if the statute provides for
an appeal, only in the manner stated in that statute. The Motor
Vehicles Act provides for the right to file an Appeal only under
Section 173 of the Act, and this right is to be exercised by any
person aggrieved by the Award; such person can exercise the right
of Appeal only by filing an Appeal under Section 173 and cannot
17th October, 2025
take recourse to filing an appeal, or for that matter a cross-
objection in terms of Order 41 Rule 21 CPC.
5. The Goa Motor Vehicles Rules, 1991 provide for the
procedure in filing a Claim Petition, and the procedure to be
followed by the Motor Accident Claims Tribunal whilst deciding
an application for compensation; the Rules also provide for the
proposal in filing Appeals or Revisions, and these are specified in
sub-Rule (3) of Rule 303, which reads as under:
"Rule - 303. Form of appeal and contents of memorandum.
(1) Every appeal against the award of the Claims Tribunal
shall be preferred in the form of a memorandum
signed by appellant or an advocate or attorney of the
High Court duly authorised in that behalf by the
applicant and presented to the High Court or to such
officer as it appoints in this behalf. The memorandum
shall be accompanied by a copy of the award.
(2) The memorandum shall set forth concisely and under
distinct heads, the grounds of objection to the award
appealed from, without any argument or narratives
and such grounds shall be numbered consecutively.
(3) Save as provided in sub-rules (1) and (2), the
provisions of order XII and XXI in the First Schedule
to the Code of Civil Procedure, 1908 Central Act (V of
1908) shall mutatis mutandis apply to appeals
preferred to High Court under section 173."
17th October, 2025
Sub-rule (3) of Rule 303 specifies that it is only sub-Rules (1) and
(2) of Order XII and the provisions of Order XXI of the Code of
Civil Procedure that shall apply to Appeals preferred to the High
Court under Section 173. The Rules do not provide for the filing
of a Cross Objection in terms of Rule 22 of Order 41 CPC, which
has not been extended to an appeal under Section 173 of the Motor
Vehicles Act.
6. In some States, the provisions of Order 41 CPC (Form of
Filing Appeals) and all its sub-Rules have been specifically
extended whilst extending to Appeals filed under Section 173, and
those Rules have specifically provided for the filing of cross
objections in Appeals filed by other parties who have challenged
the Award. In the absence of the Goa Rules extending the
provisions of Rule 22 of Order 41 CPC to Appeals under Section
173, the Cross-Objection filed by Respondents 1 and 2 would not
be maintainable.
7. I am fortified in taking this view by at least two Judgments,
wherein the provisions of Rule 22 of Order 41 CPC have not been
extended to Appeals under Section 173 of the Motor Vehicles Act
in those States; the judgment of the Supreme Court in the case of
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Urmila Devi And Others v/s. Branch Manager, National
Insurance Company Limited And Another reported in
(2020) 11 SCC 316. The relevant paragraphs of the judgment are
paragraphs 9, 14, 15, 23 and 24 which read thus:
"9. The High Court of Patna in view of Rule 249 of the Bihar
Motor Vehicles Rules, 1992 has held, that there is no
impediment for the claimant(s) to file cross-objection in an
appeal filed by the Insurance Company if the Insurance
Company had challenged the quantum of compensation
awarded to the claimant. It, however, held that if the
appeal filed by the Insurance Company is restricted only to
its liability to make the payment of compensation on the
ground of breach of terms and conditions of the insurance
policy by the vehicle owner and/or driver of the vehicle,
then the cross-objection filed by the claimant would not be
tenable. It has been held, that in such a case the claimant(s)
will have a right to file an appeal as provided under Section
173 of the M.V. Act.
...
...
14. Rule 249 of the Bihar Motor Vehicle Rules, 1992 reads thus:
"249. Manner of appeals. - (1) Every appeal against
the Claims Tribunal shall be preferred in the form of a
memorandum signed by the appellant or an advocate or
attorney of the High Court duly authorised in that behalf
by the applicant and presented to the High Court or to
such officer as it appoints in this behalf. The
memorandum shall be accompanied by a copy of the
award.
(2) The memorandum shall set forth concisely and under
district heads the grounds of objection to the award
against which the appeal is preferred without any
17th October, 2025
argument or narrative and such grounds shall be
numbered consecutively.
(3) Save as provided in sub-rules (1) and (2), the
provisions of Order XLI and Order XXI in First Schedule
to the Code of Civil Procedure, 1908 (V of 1908) shall
mutatis mutandis apply to appeals preferred to the High
Court under Section 173."
15. In view of the aforesaid provision, the High Court has
rightly come to a conclusion that the claimants would be
entitled to file a cross-objection. However, it has restricted the
right of the claimants to file cross-objection only when an
appeal is filed by the Insurance Company challenging
quantum of compensation by placing reliance on previous
judgments of Patna High Court. It has been held, that when
the Insurance Company has not challenged the quantum of
compensation but only challenges its liability to pay
compensation on the ground that there is a breach of terms
and condition by the driver and/or the owner of the vehicle,
the cross-objection would not be tenable at the instance of the
claimants.
...
...
23. As already discussed herein above, the learned single
judge of the High Court himself has observed that in view of
Rule 249 of the Bihar Motor Vehicle 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 Vehicle
Rules, 1992 would show, that save as provided in sub-rules (1)
and (2), the provisions of Order XLI and Order XXI in First
Schedule to the CPC shall apply mutatis mutandis to appeals
preferred to the High Court under Section 173 of the M.V. Act.
24. A conjoint reading of the provisions of Section 173 of the
M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992; and
Order XLI rule 22 of the 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
17th October, 2025
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."
The other judgment is of the Himachal High Court in Lata v/s
United India Insurance Co. Ltd reported in 2004 SCC OnLine
HP 30. The relevant paragraphs of the judgment are quoted below:
"17. In Motor Vehicles Act, 1988, there is no provision
corresponding to Section 41 of the Arbitration Act, 1940
whereby the provisions of the Civil Procedure Code have been
made applicable to appeals filed under this Act. The ratio,
therefore, in International Security and Intelligence Agency
Ltd., (2004) 3 SCC 250, in a way lays down the law, in the
manner of conversely speaking, that the right to file cross-
objections partakes of the right to prefer the appeal and since
the filing of the cross-objections is an exercise of a substantive
right of appeal, such a substantive right can be availed of only
if the statute specifically provides for and creates such a right
because undoubtedly right of appeal being the creation of a
statute in the absence of such a right, the filing of cross-
objections is not legally permissible.
18. Whether, therefore, an appeal is filed by an insurance
company within the confines of Section 149 (2) of the Motor
Vehicles Act, 1988, or otherwise, or an appeal is filed by any
one else, against a judgment and award of the Tribunal, since
the Motor Vehicles Act, 1988 does not lay down, provide for,
or say that the provisions of the Civil Procedure Code shall be
applicable to appeals filed under the Act, even though there is
a right of appeal against the judgment and award passed by a
Tribunal as prescribed in Section 173 of the Motor Vehicles
Act, 1988, in the absence of any stipulation in the Act of the
applicability of the provisions of the Civil Procedure Code to
appeals filed under Section 173 of the Act, the substantive right
of filing cross-objections cannot be availed of by any one as
such a right does not exist in the statute. The right of appeal is
a creature of statute and that right has been conferred upon a
person aggrieved of an award in Section 173 of the Act. Neither
in Section 173 of the Act nor elsewhere in the Act has it been
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provided that there shall be a right of filing cross-objections.
In other words, Motor Vehicles Act, 1988 does not by itself,
under its scheme, in its own body, contain any provision
similar or identical to Rule 22 or Rule 33 of Order 41 of the
Civil Procedure Code, nor does the Act anywhere provide that
Order 41, Rule 22 or Rule 33 of the Civil Procedure Code or the
principles flowing therefrom, shall apply to appeals filed under
the Act nor does the Act provide that the provisions of Civil
Procedure Code shall apply to appeals filed under the Act.
...
...
21. Section 176 of the Act empowers the State Government to
make Rules for the purpose of carrying into effect the
provisions of Sections 165 to 174 of the Act and in particular
with respect to the form and the manner in which and fees (if
any) on payment of which, an appeal may be preferred against
an award of a Claims Tribunal. For ready reference, Section
176 may be quoted which reads thus:
"176. Power of State Government to make rules.--A State
Government may make rules for the purpose of carrying into
effect the provisions of Sections 165 to 174, and in particular,
such rules may provide for all or any of the following matters,
namely:
(a) the form of application for claims for compensation
and the particulars it may contain, and the fees, if any,
to be paid in respect of such application;
(b) the procedure to be followed by a Claims Tribunal in
holding an inquiry under this Chapter;
(c) the powers vested in a civil court which may be
exercised by a Claims Tribunal;
(d) the form and the manner in which and the fees (if
any) on the payment of which an appeal may be
preferred against an award of a Claims Tribunal; and
(e) any other matter which is to be, or may be,
prescribed."
17th October, 2025
22. As is apparently seen, Clause (d) of Section 176 of the Act
clearly empowers the State Government to make rules with
respect to the form and the manner in which an appeal may be
preferred against an award of a Claims Tribunal. The
expressions 'form' and 'manner' are wide enough to include a
possible stipulation about the applicability of the provisions of
Order 41, Rules 22 and 33 of the Civil Procedure Code to
appeals filed under Section 173 of the Act. In exercise of this
power, amongst various other powers, the State Government
did frame Rules called "Himachal Pradesh Motor Vehicles
Rules, 1999". Rules 232 and 233 of these Rules are relevant for
our purposes and these read thus:
"232. The Code of Civil Procedure to apply in certain cases.-
-The following provisions of the First Schedule of the Code
of Civil Procedure, 1908, shall so far as may be, apply to
proceedings before the Claims Tribunal, namely, Order V,
Rules 9 to 13 and 15 to 30; and Order IX; Order XIII; Rules
3 to 10; Order XVI; Rules 2 to 21; Order XVII, Order XXI
and Order XXIII, Rules 1 to 3.
Sections 169 and 176 (b)
233. Form and manner of appeals against the award of
Claims Tribunal.--An appeal against award of a Claims
Tribunal shall be preferred in the form of a memorandum
stating concisely the ground on which the appeal is
preferred, it shall be accompanied by a copy of the
judgment and the award appealed against.
Sections 173 and 176 (c)"
23. As is seen, whereas under Rule 232 certain provisions of
the Civil Procedure Code have been made applicable to the
proceedings before the Tribunal, under Rule 233 it has only
been laid down as to how the appeals are to be filed against the
awards of the Claims Tribunal. Rule 232, of course, does not
relate to appeals, as it refers only to the proceedings before the
Tribunal. In Rule 233, of course, the State Government could
have incorporated a provision about the applicability of Order
41, Rules 22 and 33 of the Civil Procedure Code to the appeals
under the Act but this not having been done, we cannot import
either into the Act or into the aforesaid 1999 Rules any
provision with respect to the aforesaid applicability of Order
41 of the Civil Procedure Code to the appeals filed under the
Act with the result that we have to hold and declare that there
17th October, 2025
is no right of filing cross-objections, same not having been
created by any statute and hence it not being in existence. It
shall, however, be open to the State Government to consider
effectively the desirability of suitably amending 1999 Rules to
incorporate appropriately in these Rules, for example, in Rule
233 by way of its own amendment, or otherwise by introducing
a new rule, that Order 41 of the Civil Procedure Code shall
apply to the appeals filed under the Act, as it applies to appeals
filed under the Civil Procedure Code. We accordingly direct the
State Government to consider this issue, in its true perspective
and in best public interest and, if it at all decides to carry out
the above indicated amendment in 1999 Rules, to do the
needful in that direction within two months from today. The
decision has to be of the State Government in the exercise of
its rule making power and we have no intention of issuing any
direction, much less a binding direction as to how and in what
manner this decision should be taken. Only that the decision,
one way or the other, has to be taken in a time bound manner.
We, therefore, direct Law Secretary, Government of Himachal
Pradesh to inform the Registrar General of this court about the
action taken, one way or the other, before 31.12.2004. A copy
of this judgment shall accordingly be sent to the Law Secretary,
Government of Himachal Pradesh for his information and
compliance.
24. Based on the aforesaid reasoning and in the light of the
aforesaid observations accordingly, in this reference we lay
down, hold and declare that in no appeal filed under Section
173 of the Act by any appellant, can cross-objections be
permitted to be filed/entertained since the cross-objections,
under the scheme of the Act read with the aforesaid 1999 Rules
as these presently exist, are not maintainable."
8. In this view of the matter, I hold that the provisions of Rule 22
of Order 41 CPC will not be applicable to Appeals filed under Section
173 for the State of Goa and consequent cross objections which have
been filed by Respondent No.1 and would not be maintainable.
Consequently, the Cross Objection stands dismissed as being not
maintainable. The Respondents No.1 and 2 have chosen not to
17th October, 2025
challenge the Award by filing an Appeal under Section 173 of the Motor
Vehicles Act, and have instead filed a Cross Objection in terms of Order
41 Rule 22 CPC. This would, however, not preclude the Respondent
Nos. 1 and 2, if so advised, to file an Appeal with an application for
condonation of delay to challenge the Award or part of the Award with
which they are aggrieved.
9. In view of the above discussions, the Cross Objection of the
Respondent No.1 and 2 not being maintainable, the Miscellaneous
Civil Application also stands disposed of.
VALMIKI MENEZES, J.
Signed by: MARIA SUZANA REBELLO
17th October, 2025
Designation: Personal Assistant
Date: 20/02/2026 13:12:14
