M.L. Jain, J.
(1) In Rameshwar Prasad and others v. Shambehari Lal Jagannath and another, : 3SCR549 , it was held that the provisions of Order 41 Rule 4 and Order 22 Civil Procedure Code deal with different stages of the appeal and provide for different contingencies Rule 4 of Order 41 applies to the stage when an appeal is filed. Order 22 operates during the pendency of an appeal and not at its institution. Moreover, as explained in State of Punjab v. Nathu Ram, : 2SCR636 , Order 22 Rule 4 does not provide for the abatement of an appeal against the co-respondent of the deceased respondent and as such there can be no question of abatement of the appeal against him. To say that the appeal against the co-respondent abated is not a correct statement of law. The correct position is that looking to the nature of the relief sought in the appeal, if it can proceed against the surviving co-respondent, it may do so Order I Rule 9 enjoins that if the court can deal with the matter in controversy so far as the rights and interest of the appellant and the surviving respondent are concerned it has to proceed with the appeal and decide it. If it cannot so proceed, the appeal has to be dismissed. In Mahabir Prasadv.Jage Ram, : 3SCR301 , it was observed that the competence of the appellate court to pass a decree appropriate to the nature of the dispute in an appeal filed by one of the several persons against whom a decree is made on a ground which is common to him arid others, is not lost merely because of the person who was jointly interested in the claim, has not been made a party respondent or if made a party, on his death, his heirs have not been brought on the record. The power under Order 41 Rule 4 Civil Procedure Code may also be exercised when other persons who were parties to the proceedings before subordinate court and against whom a decree proceeded on a ground which was common to the appellant and to those other persons, are either not imp leaded as parties to the appeal or are imp leaded as respondents. It is, thereforee contended that the consequence of the legal representatives of the deceased respondent not having been brought on record is the same as if they were not imp leaded at all. That is true. But the question whether a court can deal with an appeal in the absence of legal representatives of a deceased respondent will depend essentially upon the facts of the case. Ordinarily, the question to be asked and answered is whether if the appeal were to succeed, would the court be passing a decree contradictory to the decree which has become final as between the appellants and the deceased If the answer is yes, the appeal has to be dismissed. It appears to me that the present is not a case of joint tort-feasors as was held in Life Insurance Corporation of India and another v. LRs. of deceased Narambhaj Munjabhi Vadhia 1973 Acj 226. The driver is the torfeasor. His liability is vicariously transferred to the owner to be shared by the insurer by virtue of a contract of insurance. thereforee, if the decree against the owner has become final, then the pertinent question is whether insurer can be permitted to dispute the same in the absence of the owner and, if so, to what extent
(2) If the insurer succeed on the contention that it cannot be made to pay the interest in part or whole and costs, then that amount will have to be paid out of the estate of the deceased respondents. Here there is a clash of interests and the insurer cannot be allowed to dispute this part of the decree in the absence of the legal representatives of the deceased.
(3) If the insurer succeeds on the last contention, viz. penal rate of interest should not have been ordered to be paid, then the decree can be modified even in the absence of the legal representatives and it will ensure to their benefit. To that extent the appeal can proceed. The award of interest at twice the rate if the compensation costs and interest were not paid within one month appears no doubt within the powers available under Section 110-CC of the Act. But looking to the course of the proceedings, an award of penal interest does not seem justified..
(4) It appears from a combined reading of Section 95(2)(a) and Subsection (2) of Section 96 of the act that the insurer has to pay the amount assured which shall not exceed Rs. 50,000.00 but it shall be paid together with amount payable in respect of interest and costs. This follows that the insurer will be required to pay interest and costs in addition to the statutory liability even though it is subject to a ceiling.
(5) With regard to date of interest the claimant can be awarded interest from the date of his claim under Section 110-CC of the Act. The insurer, however, maintains that since the particulars of the policy were filed in the year 1981, the insurance company cannot be saddled with the interest from a date prior to 1981. To this, the answer is that the particulars of the insurance were known either to the insurer or to other owner. The claimant and that too a minor is not supposed to know all about them. The insurer was a party to the claim. It cannot, thereforee, complain that it was not liable to pay the interest from a date earlier than the date of which the claimant was able to supply the particulars.
(6) FACTS: A minor, Bharat Bhushan filed on 25-5-1974 a claim under Section 110-A of the Motor Vehicle Act, 1939 against the driver of the truck, the owner of the truck and the insurer. The learned Tribunal awarded on 30-4-1983 a sum of Rs. 48,000.00 with costs and interest at the rate of 6% per annum from the date of the claim till the date of payment. All the respondents were directed to make the payment within one month, failing which to pay interest at the rate of 12% per annum. The insurer deposited Rs. 48,000.00 on 3-6-1983 but did not deposit the amount of costs and interest.
(7) The insurer-appellant filed the present appeal on 24-6-1983. Out of the respondents, the driver and the owner died after the appeal was filed, but their legal representatives were not brought on record. In the present appeal mainly three contentions were made :-
(A)that the liability of the insurer cannot exceed the statutory liability (i.e. Rs. 50,000), and the insurer is not bound to pay interests and costs;
(B)Interest should not have been allowed against the insurer from 25-5-1974 because the particulars of the insurance were filed by the claimant only on 24-11-1981 ; and
(C)In any case, the penal interest should not have been awarded on failure to make deposit in one month.
(8) The Hon'ble Judges of the High Court was pleased to reject the first two contentions and allow the third one.