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Judgment
K. Sreedhar Rao, J.—One Mahadevi is the minor aged about 12 years is the deceased in MVC 105/97. The parents are the petitioners seeking condensation. The Tribunal awarded compensation of Rs. 150000/- with interest at 6% p.a. , from the date of petition till payment. The Tribunal directed the owner and the insurer of the tanker to pay the compensation. The claim against the owner-insurer of the lorry is dismissed.
The insurer of the tanker is in appeal seeking avoidance of the liability on the ground that the deceased is an unauthorized passenger in the goods vehicle. The claimants have filed cross objection seeking fastening of liability on the owner-insurer of the lorry and also enhancement of condensation. The facts disclose that the deceased and the petitioners were travelling as passengers in a tanker. In view of the ruling of the Supreme Court in New India Assurance Co. Ltd. v. Asha Rani and Ors. reported in (2003)2 SCC 223 and M.V. Jayadevappa and Anr. v. Oriental Fire & General Insurance Company Ltd. reported in I (2005) ACC 472, the insurer of the tanker does not incur any liability to pay the condensation for the death or bodily injuries caused to passenger in a goods vehicle. Therefore, the award made against the insurer is bad in law and the same is set aside.
The Division Bench of this Court in United India Insurance Co. Vs. Balasubramanyam, and in United India Insurance Company Limited and Another Vs. Smt. V. Nagarathna and Others, , has taken a view that in an appeal filed by the insurer, the petitioner is not entitled to seek enhancement of condensation by way of cross objection.
The Full Bench of this Court In National Insurance Company Limited Vs. Smt. Prema and Others, , with reference to the powers and scope of this Court under Order 41 Rule 22 has made the following observations in para 15:-
As discussed above, the appeal is a continuation of the original proceedings and the entire subject matter of the claim petition its before the Appellate Court and therefore even if the appellant has filed the appeal only against a part of a decree the Court can consider the entire matter and pas appropriate orders. Therefore, as stated in our view cross-objection is maintainable.
The Learned Counsel for the 7th respondent/owner of lorry argued that the para 14 of the judgment makes it clear in view of the ratio laid down in United India Insurance Co. Ltd. Vs. Bhushan Sachdeva and Others, . The full bench comes to the conclusion that the petitioner are also entitled to seek enhancement of compensation by way of cross objection.
It is argued that the full bench decision of this Court is based on the premise that the insurer has a right of appeal u/s 173 of the M.V. Act in view of the decision of the Supreme Court in Bhushan Sachdeva''s case (Supra) is over ruled is National Insurance Co. Ltd., Chandigarh Vs. Nicolletta Rohtagi and Others, . But the ratio of the Supreme Court in Nicolletta Rahtagi''s case (supra) makes it explicit that the insurer is entitled to file an appeal only in respect of statutory defences. The right to file an appeal on quantum and other general defences is not permitted, unless permission u/s 170 of the M.V. Act is obtained. Therefore, it is strenuously argued that since the ratio in Bhushan Sachdeva''s case (supra) is over ruled, the petitioners no longer have right to file cross objection in an appeal filed by the insurer. Therefore, the parties are relegated earlier, the proposition of law as lay down by the Division Bench of this Court.
The Full Bench has copiously discussed the powers and scope of the Appellate Court under Order 41 Rule 22 in the light of the ratio laid down by the Supreme Court in Mahant Dhangir and Anr. v. Madam Mohan and Ors. Reported in 1987SCC 528. The ratio of the Supreme Court in Bhushan Sachdeva''s case (Supra) was one of the reasons for the Court to come to the conclusion that the petitioners have right to file cross objection in an appeal filed by the insurer and it was not the sole reason as contended. The Full Bench has thoroughly gone in depth into the scope and powers of the Appellate Court under Order 41 Rule 22 and comes to the conclusion that the ''appeal la a continuation of the original proceedings and the entire subject matter of the claim petition is before the Appellate Court.'' Therefore, the Court can consider the entire matter and pass appropriate orders. In that view, the Cross-objection is maintainable.
The averment in the petition indicts the driver of the tanker as solely negligent for causing the accident. The recitals in the FIR make it clear that it is a case of head-on collision between the tanker and the lorry, Mere fact that the police have prosecuted, the driver of the tanker is not decisive to hold that the tortuous negligence is only on the part of the driver of the tanker.
It is further argued that the claim against the insurer of the lorry is dismissed and there is no issue and scope for the insurer of the lorry to prove the absence of negligence of the lorry driver. Therefore, for the first time in an appeal, no liability can be fastened on the insurer of the lorry.
The assessment of negligence is a mixed question of law and facts. Any averments in pleadings with regard to negligence are only an opinion of the petitioners and do not bind the Court, That apart, the insurer has no right to content on the negligence unless permission u/s 170 of the M.V. Act is obtained.
On over all consideration of facts and evidentiary material, it discloses that it is a case of composite negligence. The driver of the tanker and driver of the lorry are equally negligent. In that view, the insurer of the lorry will be liable to pay the compensation to an extent of 50%.
The deceased la being a minor. The compensation awarded in a sum of Rs. 150000/- with interest at 6% p.a., from the date of petition till payment la just and proper in view of the ruling of this Court in Smt. Puttamma and Anr. v. D.V. Krishnappaa and Anr. reported in ILR 1999 Kar 69. Accordingly, the appeal is allowed.
The amount in deposit shall be refunded to the appellant and 50% shall be payable by the 7th respondent in the main appeal and 50% shall be payable by the owner of the tanker.