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A.R. Sudhakaran and ors. Vs. M.K. Varghese and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtKerala High Court
Decided On
Case NumberC.M.P. Nos. 2632 and 17530 of 1982 in M.F.A. No. 41 of 1982
Judge
Reported in[1984]55CompCas592(Ker)
ActsMotor Vehicles Act, 1939 - Sections 110D
AppellantA.R. Sudhakaran and ors.
RespondentM.K. Varghese and ors.
Appellant Advocate P.V. Aiyappan, Adv.
Respondent Advocate T.K.M. Unnithan, Adv. for third respondent insurance company and; Joseph J. Therattil, Adv.
Cases ReferredU.P. State Road Transport Corporation v. Smt. Janaki Devi
Excerpt:
- - these have to be in the form of a memorandum like an appeal, and may be heard and determined even if the original appeal is withdrawn or is dismissed for default......then that c.m.p. no. 17530 of 1982 was filed, praying that the appeal filed may be treated as a cross-appeal. it was pointed out that the notice on m.f.a. no. 14 of 1982 had been served on the petitioners only on january 30, 1982, and, consequently, if the appeal is treated as a cross-appeal, it would be within the prescribed time.3. this application also was opposed by the respondents, maily on the basis that the m.v. act does not confer the right to prefer a cross-appeal from an award of the claims tribunal. pointing out the belated nature of the petition, it is submitted that the application is not bona fide either.4. if the petitioners do have a right to file a cross appeal, there could not possibly be any valid objection in treating m.f.a. no. 14 of 1982, as a cross-appeal, as.....
Judgment:
ORDER

K. Sukumaran, J.

1. The first of the above petitions is an application filed by the applicants in O.P. No. 108 of 1980, for condoning the delay in filing the appeal against an award passed by the Motor Accidents Claims Tribunal, Ernakulam, on June 8, 1981. It is seen from the same award that the 1st respondent, owner of the bus, had filed an appeal, M.F.A. No. 14 of 1982. It was, thereafter, that a copy of the award was applied for on February 1, 1982, and the appeal filed on February 2, 1982.

2. A counter-affidavit was filed opposing the application for the condonation of delay. It was then that C.M.P. No. 17530 of 1982 was filed, praying that the appeal filed may be treated as a cross-appeal. It was pointed out that the notice on M.F.A. No. 14 of 1982 had been served on the petitioners only on January 30, 1982, and, consequently, if the appeal is treated as a cross-appeal, it would be within the prescribed time.

3. This application also was opposed by the respondents, maily on the basis that the M.V. Act does not confer the right to prefer a cross-appeal from an award of the Claims Tribunal. Pointing out the belated nature of the petition, it is submitted that the application is not bona fide either.

4. If the petitioners do have a right to file a cross appeal, there could not possibly be any valid objection in treating M.F.A. No. 14 of 1982, as a cross-appeal, as prayed for.

5. On the question whether a cross-appeal would lie from the award of a Claims Tribunal, there appeared to be a cleavage of judicial view. The High Courts of Punjab and Harayana and Delhi had taken the view that the cross-appeal would lie. The Allahabad High Court, however, had struck a different note in the decision, Virendra Singh v. Phoolmati [1978] ACJ 430 ; [1978] All LR 862, which view was followed in Mahendra Singh v. Smt. Krishna Devi [1979] ACJ 299 (All) ; AIR 1979 All 4. However, that court considered the question again later by an authoritative Full Bench decision. The case is U.P. State Road Transport Corporation v. Smt. Janaki Devi, AIR 1982 All 296 ; [1984] 55 Comp Cas 526. The Allahabad High Court also ultimately fell in line with the other High Courts, overruling the earlier view taken by that court in the decision referred to above.

6. The nature of a right to prefer a cross-objection was expressed by the Full Bench in the following words (at p. 530 of 55 Comp Cas) :

'In our opinion the right of filing a cross-objection is not different in nature than the right to prefer an appeal by an aggrieved party as provided by the statute. Section 110D of the M.V. Act confers on a person aggrieved by an award of a Claims Tribunal, the right to prefer an appeal to the High Court. It is this very right which an aggrieved party exercises when he prefers a cross-objection in an appeal brought to the High Court by the other aggrieved party. Rule 10 of Order XLI-A introduced by this court, which is in the same terms as Clause (1) of Rule 22 of Order XLI of the CPC, enables a respondent who may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he had filed such objection within one month from the day fixed for his appearance in the notice served upon him or within such further time as the court may deem fit to allow. This provision does not confer any new right on the respondent but only affords him a fresh opportunity to exercise the very sameright which he had either under the CPC or under the special statute. If a person has a right of appeal under Section 96 or Section 100 of the CPC, he may exercise that right within a period of limitation prescribed under the law of limitation and in case he fails to do so, the court enables him to exercise that very right when the other party has preferred an appeal to the court competent to hear it. The right to avail of the same procedure is available to a person who has a right of appeal conferred by the special statute, i.e., the right to file a cross-objection is included in the right to appeal conferred by the statute. Indeed, unless the respondent was entitled to appeal, he has no right to take any cross-objection. In the cross-objection he can take only those pleas which he could have taken by way of his right of appeal. These have to be in the form of a memorandum like an appeal, and may be heard and determined even if the original appeal is withdrawn or is dismissed for default. All these incidents indicate that there is no material difference between an appeal and a cross-objection except the stage of the proceedings.'

7. Ultimately, the conclusion of that court was expressed thus (at p. 533 of 55 Comp Cas) :

'The word 'award' has been used in the Act in a sense of a decree or akin to a decree since the award given by the Tribunal in such claim cases determines the rights of the parties. Since the procedure contemplated by Order 41, Rule 22, is applicable to the appeal preferred under Section 110D of the M.V. Act, the word 'court' may be read as 'Tribunal' and the word 'decree' may be read as 'award'.'

8. I am in agreement with the views expressed by the Full Bench in the above case. As stated earlier, other decisions have taken the view that a cross-objection is maintainable from an award of a Claims Tribunal.

9. In view of the legal position, I allow C.M.P. No. 17530/82. The appeal, M.F.A. No. 41 of 1982, will be treated as a cross-appeal in M.F.A. No. 14 of 1982.

10. In view of the orders passed in C.M.P. No. 17530 of 1982, it is not necessary to pass separate orders in C.M.P. No. 2632of 1982. It is accordingly dismissed.


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