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Judgment
Nirmal Singh, J.—Appellant filed a claim petition u/s 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) before the
Motor Accident Claims Tribunal, Jammu (hereinafter referred to as the Tribunal) on the ground that he sustained multiple injuries on 15.08.1998
because of rash and negligent driving of the driver of vehicle JK02J-4052.
Learned Tribunal after recording evidence of the parties, awarded a sum of Rs.2.05 lac as compensation along with interest @ 12% per annum
from the date of filing of the claim petition till payment is made by the insurer. The claimant has filed the present appeal for enhancement of
compensation.
Mr. Sunil Malhotra, learned Counsel appearing for the Insurance Company raised preliminary objection that this appeal is not maintainable. He
submitted that the Insurance Company filed appeal bearing No. CIMA No. 29/2001 in which the appellant-Harish Chander also appeared and
contested the appeal filed by the Insurance Company. In that case, this Court vide order dated 05.03.2001 modified the award by observing that
there is a clerical error because the Tribunal has awarded Rs.5,000/- for future medical expense which has not been added to the gross amount.
So the respondents will be entitled to Rs.2.10 lac instead of Rs.2.05 lac, but no interest will be payable on Rs.5000/-. It was also ordered that in
case the awarded amount is not paid within two months, interest will be at the rate of 12% p.a. from the date of the award. He further submitted
that when appellant has contested the appeal filed by the insurance company and award has been modified on the plea raised by the respondents
thenv appellant has no right to assail the findings of the learned Tribunal that the compensation awarded is inadequate.
On the other hand, Mr. Raghu Metha, counsel for the appellant has submitted that in the appeal filed by the Insurance Company, appellant
appeared and contested the appeal but the question with regard to enhancement of the award was not considered in the said appeal. He further
submitted that u/s 173 of the Act, any person aggrieved by an award of a Claims Tribunal may, within 90 days from the date of award, prefer an
appeal to the High Court. He submitted that as per Section 173 of the Act, appellant has preferred the present appeal, therefore, the appellant has
independent right to file the appeal for adjudication of the compensation. His right is not to be defeated.
I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and perused the record.
Section 173(1) of the Act, entitles the aggrieved person to prefer an appeal to the High Court. In the case in hand, the appellant as well as
Insurance Company were aggrieved by the award. In the appeal filed by the Insurance Company, the award was modified in presence of the
appellant. A complete procedure for claiming compensation has been laid down in Chapter-12 of the Act, which is a complete Code. But while
conducting proceedings, the Tribunal has to apply provisions of Code of Civil Procedure. Under Order 41 Rule 22 even if party has not filed
appeal even then the same party has a right to address on issue, which has been decided against the said party. Order 41 Rule 22 reads as under:
Upon hearing respondent may object to decree as if he had preferred 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 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 Appellate Court within one month from the date of service on him or his pleader or 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.
The bare perusal of the Order 41 Rule 22 CPC reveals that in an appeal, the respondent cannot only support any part of the decree but he can
also challenge the finding against him contending that it should have been in his favour. While interpreting Order 41 Rules 33 and 22, the Apex
Court in Pannalal Vs. State Bombay and Others, has held as under:
(18) In our opinion, the view that has now been accepted by all the High Courts that Order 41, Rule 22 permits as a general Rule , a respondent
to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in
such an objections is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without
the question being re-opened between the objecting respondent and the other respondents, that an objection under Order 41, Rule 22 can be
directed against the other respondents, is correct. Whatever may have been the position under the old Section 561, the use of the word 'cross-
objection' in Order 41, Rule 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant.
In the appeal filed by the Insurance Company, the appellant appeared and contested the same. This Court modified the award in C.I.M.A. No.
29/2001. The appellant-claimant was not only to support the award in CIMA No. 29/2001 but can also raise all the pleas as have been raised in
this appeal. It is pertinent to mention here that at the time when CIMA No. 29/2002 was decided, the present appeal was pending. It seems that
inadvertently no order was passed in this appeal, therefore, this appeal is deemed to have been disposed of in view of the order passed in
C.I.M.A. No. 29/2002.
For the reasons mentioned above, there is no merit in this appeal, which is, accordingly, dismissed.