United India Insurance Company Limited vs Gangisetti Naga Lakshmi

M. Satyanarayana Murthy, J.—United India Insurance Company Limited, second respondent, and the petitioners-claimants in Original Petition No. 650 of 2002, preferred Appeal and Cross Objections, respectively, against the impugned Award dated 19.09.2006, passed in O.P. No. 650 of 2002, on the file of Motor Accidents Claims Tribunal-cum-II Additional District Judge, Kadapa at Proddatur (For short, ''the Tribunal''), whereunder the Original Petition filed by the petitioners-claimants was allowed, in part, awarding compensation of Rs. 13,50,000/- against the original claim of Rs. 25,00,000/-. The appellant in M.A.C.M.A. No. 2411 of 2008 was the second respondent-Insurance Company and the Cross-objectors in Cross Objections (SR) No. 33730 of 2007 were the petitioners-claimants in O.P. No. 650 of 2002, before the Tribunal.

For the sake of convenience and to avoid confusion, the parties hereinafter will be referred as petitioners-claimants and respondents.

The petitioners-claimants, being wife, children and mother of deceased Gangisetti Ramanaiah, filed claim petition, before the Tribunal, u/s 166 of the Motor Vehicles Act, 1988 (for short, ''the Act''), claiming compensation of Rs. 25,00,000/- for untimely death of Gangisetti Ramanaiah in road accident, alleging that on 28.09.2001 at about 04.30 a.m. while the deceased Ramanaiah and two others were proceeding in a car bearing No. AP-04-D-2266 driven by 3rd respondent and when the car reached near Rangareddiguda village, a van bearing No. AP-12-U-1776 was driven by its driver in rash and negligent manner, hit the car of deceased Ramanaiah. Thus, the accident occurred only due to rash and negligent act of the driver of van bearing No. AP-12-U-1776. Subsequently, the accident was reported to Balanagar Police Station and the same was registered as a case in Crime No. 142 of 2001, for the offences punishable under Sections 304-A and 337 of I.P.C. The deceased Ramanaiah was aged 40 years at the time of accident, earning Rs. 2,40,000/- p.a. in the business contributing the same to his family. First respondent is the owner of van bearing No. AP-12-U-1776 and second respondent is its insurer; third respondent is the driver of car bearing No. AP-04-D-2266 and fourth respondent is the insurer of car, whose liability is joint and several. Hence, claimed total compensation of Rs. 25,00,000/- against the respondents.

First respondent, being owner of van bearing No. AP-12-U-1776 and third respondent, being driver of car bearing No. AP-04-D-2266 remained ex-parte.

Respondents 2 and 4 filed separate counters. Second respondent, insurer of van bearing No. AP-12-U-1776, filed counter denying material allegations of the petition inter alia contending that the age and income of the deceased Ramanaiah was not correct and the accident not occurred due to rash and negligent driving of the driver of van and the car hit the van from its rear side. Therefore, second respondent is not liable to pay compensation; petitioners-claimants were called upon to put the age and income of deceased to strict proof.

The deceased Ramanaiah was running a petrol bunk and on account of his death, petitioners-claimants did not suffer any loss as the business, after death of Ramanaiah, is being continued by the petitioners. The driver of van was not holding valid and effective driving license, as on the date of accident, and thereby violated terms and conditions of the policy, consequently second respondent is not liable to pay compensation and the claim of the petitioners-claimants is excessive and finally prayed for dismissal of the Petition.

Fourth respondent, being insurer of car bearing No. AP-04-D-2266, filed counter denying the material allegations including age and income of deceased Ramanaiah while admitting that the car was insured with them and specifically contended that the car was driven by its driver with great care and caution observing traffic rules but the driver of van was negligent and as such the accident occurred only due to negligence of the driver of the van. Fourth respondent is only a formal party and that the compensation claimed by the petitioners-claimants is excessive and finally prayed for dismissal of the petition, against the fourth respondent.

Based on the above pleadings, the Tribunal framed the following issues:

Whether the deceased Gangisetti Ramanaiah died in a motor vehicle accident that occurred on 28.09.2001 at 04.30 a.m., due to rash and negligent driving of the driver of the van bearing No. AP-12-U-1776 and car bearing No. AP-04-D-2266?

Whether the petitioners are entitled for compensation and if so to what amount and from whom?

To what relief?

During the course of trial, on behalf of the petitioners-claimants, P.Ws. 1 to 3 were examined and Exs. A-1 to A-22 were marked; on behalf of respondents, none were examined and no documents were marked.

Upon hearing argument of both the counsel, considering oral and documentary evidence available on record, the Tribunal found that the accident occurred due to rash and negligent act of drivers of both the vehicles, attributed negligence at the rate of 75% and 25% to the first respondent and third respondent and awarded compensation of Rs. 13,50,000/- fixing the income of deceased at Rs. 2,00,000/- p.a.

Aggrieved by the impugned award, the second respondent, insurer of van bearing No. AP-12-U-1776, preferred this Appeal on various grounds mainly contending that attribution of 75% negligence to the driver of van is erroneous as the driver of car did not maintain minimum distance while proceeding on the road and thus the driver of car alone was negligent and responsible for the accident but the Tribunal did not consider the care and caution taken by the driver of van. The Tribunal also failed to appreciate the evidence on record to decide the quantum of compensation and erroneously awarded compensation of Rs. 13,50,000/-.

The Tribunal erroneously applied the multiplier contained in the table under Schedule-II of Motor Vehicles Act, the multiplier under the Table is applicable only to the persons, whose annual income is less than Rs. 40,000/- but the Tribunal on erroneous appreciation of law applied multiplier contained u/s 163-A of Schedule-II of the Motor Vehicles Act and committed an error, the Tribunal also failed to consider the business being run by the petitioners-claimants subsequent to death of Ramanaiah and there is no loss to the estate and future income. Thereby, the impugned Award passed by the Tribunal is totally erroneous and prayed to set-aside the Award passed by the Tribunal.

Per contra, learned counsel for the petitioners-claimants i.e., cross objectors contended that the contribution of deceased Ramanaiah to his family assessed by the Tribunal is far below than the income generally shown in the income available on record and awarded meager amount of compensation of Rs. 13,50,000/-. Similarly, attribution of 75% and 25% negligence to the first respondent, owner of van bearing No. AP-12-U-1776 and driver of car bearing No. AP-04-D-2266, is an apparent error on the face of record for the reason that the consistent evidence on record, more particularly, the evidence of the eye witness, P.W. 2, shows that the driver of the van alone was responsible for the accident, therefore, failed to award total compensation against Respondents 1 and 2.

During course of hearing, learned counsel for the second respondent-Insurance Company (Appellant in M.A.C.M.A. No. 2411 of 2008), reiterated the specific contentions raised in the grounds of Appeal mainly contending that the cross-objections are not maintainable in view of the Division Bench decision of this Court in the The New India Assurance Co. Ltd. and P. Yasodarani, Lorry Owner Mettupalli Vs. Vasireddy Sujatharani, , thereby the Cross Objections are liable to be dismissed and at the same time, the compensation awarded by the Tribunal is to be reduced to the minimum extent as the business that was being run by deceased Ramanaiah is being continued by the petitioners/claimants after death of Ramanaiah and finally prayed to allow the Appeal setting aside the impugned Award passed against the second respondent dismissing the cross-objections.

Learned counsel for the petitioners-claimants (Cross-objectors) mainly contended that the Cross-objections are maintainable, otherwise, they can be converted into Cross Appeal as sufficient Court fees is paid and that apart, the Motor Vehicles Act is a welfare and benevolent piece of legislation. Though the rules contained in C.P.C. are not totally applicable, still the procedure contemplated under C.P.C. can be invoked and award appropriate compensation or otherwise treating the same as Cross Appeal to meet the ends of justice; the Court can award just and reasonable compensation and prayed to allow the Cross-objections and award total compensation of Rs. 35,00,000/- for untimely death of deceased Ramanaiah in the road accident.

Considering rival contentions, perusing the material available on record, the points that arise for consideration in this Appeal and Cross-objections are:

Whether the Cross-objections are maintainable under the Motor Vehicles Act?

Whether the accident occurred due to contributory negligence of drivers of both the vehicles i.e., van bearing No. AP-12-U-1776 and car bearing No. AP-04-D-2266? If so, the negligence attributed to each driver of the vehicle by the Tribunal be sustained?

Whether the compensation awarded by the Tribunal is just and reasonable?

POINT No. 1: Section 173 of Motor Vehicles Act provides an Appeal to the High Court against the Award passed by the Motor Accidents Claims Tribunal which is equivalent to Section 96 of C.P.C. Section 96 of C.P.C. is totally silent about the Cross-objections, but Order 41 Rule 22 of C.P.C. provides a right to file Cross-objections. Whenever an Appeal is filed by one party either questioning the adverse findings recorded against the cross-objectors or to support the finding of the trial Court, Order 41 Rule 22 of C.P.C. gives two distinct rights to the respondents in Appeal; the first is the right of upholding the decree of Court of first instance on any of the grounds on which the Court decided against them and the second right is that of taking any cross-objections to the decree which the respondents might have taken by way of Appeal. In the first case, second respondent-Insurance Company supports the decree and in the second case, he attacks the decree. The explanation to Order 41 Rule 22 of C.P.C. empowering the respondents to file Cross-objections in respect of a finding adverse to them notwithstanding that the ultimate decision is wholly or partly in their favour. Thus, there is sufficient remedy provided under Order 41 Rule 22 of C.P.C. to file Cross-objections by the respondents in the Appeal, but Motor Vehicles Act and Rules framed there under are totally silent regarding the right to file Cross-objections either to support the decree or to challenge the adverse findings. In such a case, there is any amount of doubt about the maintainability of Cross-objections under the Motor Vehicles Act in Appeal filed against the Award passed by the Motor Accidents Claims Tribunal. The learned counsel for the second respondent-Insurance Company has drawn the attention of this Court to a Division Bench decision of this Court in New India Assurance Company Limited Dindigal, Tamil Nadu State and another v. Vasireddy Sujatharani (supra) wherein the Division Bench of this Court relying on various decisions rendered in Branch Manager, New India Assurance Co. Ltd. Vs. Are Ramulu @ S. Ramulu and Another, , United India Insurance Company Vs. Dasari Lakshmi and Others, , Vaidyanath Singh Vs. Gulabkali and Others, , New India Assurance Co. Ltd. Vs. Kehro Devi and Others held that Cross-objections in the proceedings initiated under the Motor Vehicles Act are not maintainable referring to the specific Rule i.e., Rule 473 of Andhra Pradesh Motor Vehicles Rules, 1989 regarding application of certain provisions of C.P.C. to the proceedings under the Motor Vehicles Act, and ultimately concluded that the Cross-objections are not maintainable. Relying on the similar citations, the learned counsel for the second respondent-Insurance Company supported his contentions.

Per contra, learned counsel for the Cross-objectors relied on several judgments in support of his contention, particularly regarding maintainability of Cross-objections, which are as follows:

In 1934 (36) BOMLR 427 (Privy Council) , wherein the Privy Council held that though there is no provision for filing Cross-objections, the Privy Council held that the Cross-objections are maintainable.

In National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), , the Privy Council held that the Cross-objections are maintainable relying on earlier judgments of Privy Council and other High Courts though there is no provision for filing Cross-objections.

In Pannalal Vs. State Bombay and Others, , the Hon''ble Apex Court held as follows, in Para. 18:

"18. In our opinion, the view that has now been accepted by all the High Courts that O. 41, R. 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 objection 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 other respondents, that an objection under O. 41, R. 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 O. 41, R. 22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. As Rajamannar, C.J. said in Vadlamudi Venkateswarlu and Another Vs. Ravipati Ramamma and Another, ."

Thus, all the above 3 decisions pertains to different enactments but not pertaining to Motor Vehicles Act. However, in all the three decisions, the Hon''ble Apex Court and Privy Council are of the view that even in the absence of any provision permitting the respondents in Appeal to file Cross-objections, Cross-objections are maintainable.

The Full Bench of Karnataka High Court in K. Chandrashekara Naik and Another Vs. Narayana and Another, succinctly held as follows, at Para. 20:

"20. Order 41, Rule 22, C.P.C. provides that any respondent, though he 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 that he filed such objection to the appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate Court may see fit to allow. The above rule is apparently a special provision which gives a respondent, who in the first instance is satisfied with partial success in the Court below, another opportunity of challenging the part of the decree which has gone against him upon his opponent preferring an appeal. In the appeal filed from any part of the decree before this Court, the procedure laid down in Order 41, Rule 22, C.P.C. has to be followed by this Court. Therefore, we are of the view, that cross-objections are maintainable, in appeals that lie to the High Court u/s 110-D of the Act."

In a Division Bench decision of this Court in Government of Andhra Pradesh Vs. K. Padma Rani and Others, , it was held as follows, at Paras. 17 and 19:

"17. Under Madras Forests Act, when a similar question arose the Full Bench of the Madras High Court in 4 I.D (N.S.) 215 held, where an appeal was preferred to the District Court against the decision of the Forest Settlement Officer u/s 10(2) the appeal is preferred to the District Court as one of the ordinary courts of the country with regard to whose procedure, order and decree the ordinary rules of CPC would apply. The Privy Council in Secretary of State for India v. Chellikani Ramarao ( AIR 1916 PC 21) adverting to similar objection, stated thus:-

"It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statue just quoted. In their Lordships'' opinion this objection is not well funded. Their view is that when proceedings of this character reach the District Court, that court is appealed to as one of the ordinary courts of the country, with regard to whose procedure, orders and decrees the ordinary rules of CPC apply."

19................................. Therefore, we are of the opinion that there is no substance in the preliminary objection raised by the learned Government Pleader and we hold following National Sewing Thread Co. Ltd. Vs. James Chadwick and Bros. Ltd. (J. and P. Coats Ltd., Assignee), and the other decisions referred to earlier that the cross-objections are maintainable."

In U.P. State Road Transport Corporation Vs. Smt. Janki Devi and Others, , it was held as follows, at Para. 11:

"11. In the light of the above discussion we are of the opinion that the view taken by this Court in Virendra Singh''s case (1969 ACJ 276 (Delhi) and followed in other decisions of this Court is not warranted by law and a cross-objection as contemplated by Order 41, Rule 22 of the CPC is maintainable before the High Court at the instance of a respondent to an appeal filed u/s 110-D of the Motor Vehicles Act, 1939."

In a Division Bench decision of this Court in Srisailam Devastanam Vs. Bhavani Pramilamma and Others, , it was held as follows, at Para. 13:

"13. In order to consider the grievance of the claimants for the rest of the claim disallowed by the lower Tribunal, we must first decide the question whether the cross-objections filed by them are maintainable since it has been disputed by the learned counsel for Devastanam. Therefore, the question for consideration is whether the cross-objections filed by the claimants are maintainable. Before considering this question, it would be profitable to consider the case decided on the point whether the appeal is maintainable against an order or award or a decision rendered by a regularly constituted Court. Entrusted by a competent legislature to adjudicate upon the rights and claims arising under a special enactment as early as in 1888 this question arose before a Full Bench of the Madras High Court in 4 I.D (N.S.) 215 . The question that arose therein was, whether a second appeal to the High Court would lie against the decision of the District Court constituted as a forest Court under Forest Act. An appeal is provided to the District Court against the decision of a Forest settlement officer and there is no provision for a regular second appeal provided to the High Court. The aggrieved party filed a second appeal in the High Court against the decision of a Forest Court (District Court). The question therefore that arose for decision before the Full Bench was whether the second appeal is maintainable against the decision of the Forest Court (District Court). The learned Judges, after considering the provisions of the Forest Act held that:

"It is hardly probable that the legislature would have provided for the ultimate determination by the High Court of a class of accessory rights over land while intending at the same time to bar the jurisdiction of the High Court in the determination of the title to the land itself."

Ultimately the learned Judges held that the second appeal does lie to the High Court from a decision of the District Court under S. 10 of the Forest Act."

The learned counsel for the Cross-objectors also drawn the attention of this Court to several judgments under different enactments including the Workmen''s Compensation Act, 1923 and drawn the attention of this Court to a judgment of this Court in M/s. Singareni Collieries Company Limited v. The Commissioner for Workmen''s Compensation Warangal and another 1987 (2) ALT 941, wherein it was held as follows, at Paras. 13 and 15:

"When an appeal is allowed by a statue to the High Court the ordinary incidents of procedure of the High Court including a right to file cross-objections will be attracted. Even though there is no specific provision in the Workmen''s Compensation Act enabling the respondent to prefer cross-objections still the cross-objections are maintainable."

In APSRTC Vs. Burri Sulochana and others, , this Court relying on the decision of the Apex Court in National Sewing Thread Company Limited (supra) held as follows, at Para. 19:

"19. For the above reasons, I hold that the cross-objections filed by the respondents-claimants in the form of memorandum of appeal affixing the Court fee, satisfy the requirements or Order 41, Rule 22 CPC, and therefore, maintainable."

Similarly, in a Division Bench decision of this Court in APSRTC, Mushirabad, Hyd. Vs. Bassetty Nirmala and Others, , it was held as follows, at Para. 5:

"5. Be that as it may, the question with regard to the maintainability of cross-objections under Order 41, Rule 22 in an appeal filed against an award of the Motor Accidents Claims Tribunal is no longer res integra. A similar question fell for consideration before us in CMA No. 1726 of 1997 along with cross-objections, and on a detailed hearing of the learned senior Counsel on behalf of the respective parties and after considering various decisions including the decision (supra) and the Full Bench decisions of Allahabad and Karnataka High Courts in U.P. State Road Transport Corporation Vs. Smt. Janki Devi and Others, and K. Chandrashekara Naik and Another Vs. Narayana and Another, , we held, by judgment dated 19.12.2001 that the ''award'' passed by the Motor Accidents Claims Tribunal is a ''decree'' and that the claimants are entitled to file cross-objections in the appeal, as provided under Order 41, Rule 22 CPC. We, therefore, reject the objection raised on behalf of the appellant-corporation in this regard."

In a Division Bench decision of Karnataka High Court in New India Assurance Co. Ltd. and Another Vs. Devi Kumari and Others, , it was held as follows, at Para. 6:

"We do need to apply our minds to the last aspect because learned counsel Mr. Mahesh submitted that he is not being merely technical but he is only placing before the Court the correct legal position, as he points out that sub-clause (4) contemplates a situation where either because of default or mischief the main appeal is either withdrawn or dismissed for default and that naturally, the law postulates that the cross-objector should not be made to suffer because of this. His submission is that if the main appeal has been dismissed on the ground of maintainability then it affects the very genesis or the inception of the cross-appeal and even though it seems to be an unprecedented situation, which has not arisen earlier, his submission still holds good in the unusual situation that has arisen in these cases. We have examined this aspect of the law and what we find is that, had the appeal filed by the insurance company been dismissed on the ground of maintainability prior to notice being issued to respondent then there would have been no question of any argument with regard to the maintainability of a cross-appeal. When the notice was issued, the right accrued to the respondents to file their cross-appeal which they have done, and it so happens that in the circumstances set out by us the main appeal has been dismissed on the ground of maintainability and in our considered view, this would be very similar to a situation in which the main appeal is dismissed on merits before the cross-appeal is heard and in that unusual it would be wrong to hold that the cross-appeal must fail merely because of what has happened to the main appeal. Though the situation did appear to be very complicated on a simple analysis and having examined the law laid down that when once one has filed the cross-appeal on an independent existence of its own, we cannot uphold the proposition that the fate of the main appeal must govern the fate of the cross-appeal because in fact, experience has shown that in many instances the main appeal has failed and the cross-appeal for enhancement has survived."

In a Division Bench decision of the Apex Court in Amrit Bhanu Shali and Others Vs. National Insurance Co. Ltd. and Others, , the Apex Court incidentally directed the parties to file Cross-objections and those specific observation made in Para. 10 are extracted hereunder, for better appreciation:

"11. The appellants challenged the award of the Tribunal by filing Miscellaneous Appeal (C) No. 765 of 2010 before the Chhattisgarh High Court for enhancement of compensation. The National Insurance Company also challenged the same award by filing Miscellaneous Appeal (C) No. 515 of 2010 before the Chhattisgarh High Court. Therefore, the Appellants withdraw their Miscellaneous Appeal (C) No. 765 of 2010 on 02.08.2010 with a liberty to file cross-objection for enhancement of compensation in Miscellaneous Appeal (C) No. 515 of 2010. The permission was so granted. The Appellants filed cross objection in Miscellaneous Appeal (C) No. 515 of 2010 for enhancement of compensation."

In a judgment of this Court in C.M.A. No. 4369 of 2003, this Court held as follows:

"16. From the ratio laid down by the Apex Court, therefore, it is clear that in the appeal filed by the insurance company or the owner challenging the quantum of compensation, the claimants cannot seek enhancement of compensation without filing any cross appeal or cross-objections. Therefore, the claimants can question the inadequacy of the compensation granted by the Tribunal not only by filing a separate appeal but also by filing cross-objections in the appeal filed by the insurer or the insured."

In a Division Bench decision of this Court in Sharifa Bee v. General Manager, A.P. State Road Transport Corporation, Musheerabad, Hyderabad LAWS (APH)-1990-10-41, it was held as follows, at Para. 4:

"4. The submission of the learned standing counsel for the respondent Corporation does not, in our opinion make a proper distinction regarding the maintainability, of the appeal and the question of taking out notices to the parties involved. The cross-objections were maintainable against the driver in as much as he has been shown as the 3rd respondent and the Cross-Objections were filed in time and the necessary court fee was paid. The cross objectors, however, are required to take out notice to the driver, if not initially at any rate after the appeal preferred by the Corporation stood dismissed for default against the driver on 06.09.1989. In our view, if the appellate Court came to the conclusion that it was obligatory for an appellant or a cross objector to take out notice to a respondent who was ex-parte in the trial Court and that such a notice is required to be taken in view of Order XLI, Rule 14(4), it will not be proper for the Court to dismiss the appeal or the Cross Objections as not maintainable merely because notices are not taken to the ex-parte respondent. The appeal or cross-objections would still be maintainable as all other formalities therefore have been complied with. If notice is not proposed to be taken to an ex-parte respondent, the Court can direct the appellants or the Cross objectors, as the case may be, to take appropriate notice to the respondent who was ex-parte in the trial Court. It is only when the appellants or the cross objectors refuse to take out notices to the ex-parte respondent that the Court may consider the question whether any decree could be passed against the remaining respondents in accordance with law. Merely because of an endorsement that notices are not proposed to be taken to the respondent who remained ex-parte, the Court cannot dismiss the appeal or the cross objections as not maintainable, unless in spite a further direction by the Court to take out notices to such parties, the appellant or cross objector refuses to take out such notices. This is particularly so in cases relating to payment of compensation under Welfare Legislations. We may add one more reason as to why the appeal cannot be held to be not maintainable. Order XLI, Rule 14(1) itself provides that the interlocutory applications can be decided even if the ex-parte respondent has not been impleaded in the interlocutory applications in the appellate Court. If the interlocutory applications could be disposed of without taking out notices to the ex-parte respondent, that would itself made it clear that the appeal was maintainable. All that is required under the amendment of 1976 is, even in regard to the respondents who were ex-parte in the lower Court, the appellants or Cross Objectors must take out notices. In fact, normally no fresh notices are served and all those respondents cover the respondents in the cross objections. It is only in cases where the appeal stands dismissed against some of the respondents for default, that it becomes necessary for the Cross Objectors to take out notices afresh to such persons against whom cross objections were filed."

Thus, in majority of Division Bench Judgments it was held that Cross objections are maintainable even though there is no provision in Motor Vehicles Act permitting the respondents in the Appeal to file Cross-objections. But, except in one Division Bench judgment of this Court in Vasireddy Sujatharani (supra) all the remaining judgments of different High Courts including the Full Bench Judgment of Karnataka and Allahabad High Courts are in support of the contentions of Cross-objectors but they are not binding. However, they have got their own persuasive value. In Amrit Bhanu Shali and others (supra), the Supreme Court itself directed to file Cross-objections. However, no question was raised before the Apex Court about the maintainability of Cross-objections.

The Division Bench decision of this Court in Vasireddy Sujatharani (supra) did not refer the earlier Division Bench judgments of this Court about the maintainability of the Cross-objections in Motor Accident Original Petitions. Therefore, the Division Bench decision of this Court in Vasireddy Sujatharani (supra) did not overrule the earlier judgments. However, the other Division Bench judgments regarding maintainability of Cross-objections are based on the principles laid down by the Apex Court. Therefore, in view of the majority Division Bench judgments of this Court, persuaded by the Full Bench Judgments of Karnataka and Allahabad High Courts and influenced by the observations made by the Apex Court in Amrit Bhanu shali and others (supra), we find that in the absence of any specific provision about the applicability of provisions of Order 41 Rule 22 of C.P.C., Cross-objections are maintainable.

If the Courts are directed to follow only the provisions under Rule 473 of A.P. Motor Vehicles Rules, 1989, it is difficult for any Court to decide any matter effectively since Rule 473 permits only to apply Order 5 Rule 9 to 13 and 15 to 30; Order IX, Order XIII Rules 3 to 10; Order XVI Rules 2 to 21; Order XVII and Order XXVIII Rules 1 to 3.

If the Tribunals strictly adhere to Rule 473, the Tribunals cannot receive documents or even the Tribunals are not competent to permit the parties to amend their pleadings, implead legal heirs under Order 22 or 3rd parties under Order 1 Rule 10 of C.P.C. and parties can be permitted to amend pleadings under Order 6 Rule 17 of C.P.C. etc. Therefore, we feel that strict adherence of Rule 473 of A.P. Motor Vehicles Rules, would not serve the purpose of benevolent or welfare legislation, on the other hand, it amounts to driving the parties from pillar to post for redressal of grievance under the Motor Vehicles Act spending both their time and money, which ultimately defeats the very object of benevolent and welfare legislation and speedy redressal. While interpreting the provisions of benevolent Act, where two views are possible, the view favourable to the persons for whose benefit the Act is enacted, has to be taken into consideration to achieve the real object. Nevertheless, in view of the judgment of the Apex Court, even in the absence of any specific provision permitting Cross-objections, Cross-objections can be entertained and decided by Courts. Concurring with the view expressed by the Apex Court in Panna Lal (supra) and the Division Bench judgment of this Court, we have no slightest hesitation to accept the contention of Cross-objectors, while totally disagreeing with the principle laid down by this Court in Vasireddy Sujatharani (supra).

According to undisputed settled law, even in the absence of any Appeal, the Courts are competent to award just and reasonable compensation directing the parties to pay deficit Court fees on the enhanced compensation. When such liberty is given to the Tribunals and appellate Courts under Motor Vehicles Act, entertaining Cross-objections would not amount in deviating of any procedures.

Therefore, in view of the principles laid down by the Apex Court, including the majority Division Bench Judgments of this Court and other High Courts, we are of the considered view that the Cross-objections are maintainable. Accordingly, the point is answered in favour of petitioners-cross-objectors and against the second respondent-Insurance Company.

POINT No. 2: The claim petition is filed contending that the accident occurred only due to rash and negligent act of the driver of the van bearing No. AP-12-U-1776 attributing 100% negligence to him. The pleadings are specific that the accident occurred only due to rash and negligent act of the driver of the van bearing No. AP-12-U-1776, whereas respondents 2 and 4 attributed negligence against one another. Therefore, the real controversy between the parties is whether the accident occurred due to the negligence of both the drivers? If so, what is the percentage of negligence contributed by each of them? The Tribunal considering oral and documentary evidence on record attributed 75% negligence to the driver of van bearing No. AP-12-U-1776 while attributing 25% negligence to the driver of car bearing No. AP-04-D-2266. The same finding is challenged by the petitioners-claimants by filing Cross-objections (SR) No. 33730 of 2007 and the second respondent-Insurance Company by filing Appeal in M.A.C.M.A. No. 2411 of 2008.

As per the pleadings, the accident occurred due to sole negligence of driver of the van bearing No. AP-12-U-1776. Even P.W. 2, who was the eye witness, testified about the manner of accident attributing total negligence to the driver of the van. Moreover, he admitted in his evidence that the van belonging to first respondent was proceeding ahead to the car but without break lights or signals it was suddenly stopped, due to which the car bearing No. AP-04-D-2266 in which the deceased Ramanaiah was travelling hit the van from its rear side as he was unable to control the car. Even Ex. A-1, certified copy of F.I.R., disclosed the said fact. Thus, from the testimony of eye witness, P.W. 2, it is clear that the accident occurred only due to sudden application of breaks by the driver of van bearing No. AP-12-U-1776 and due to inability of the driver of car bearing No. AP-04-D-2266 to control the same. Undoubtedly, when the vehicles are proceeding on the road, the drivers of vehicles have to follow reasonable care and caution to avert the accident and normally when the vehicle was proceeding at a speed, when breaks are applied the break lights will glow and the drivers of vehicles proceeding behind the vehicle have to observe those break lights and maintain minimum distance between the two vehicles. Failure to observe glowing of brake lights, maintain minimum distance and inability to control the car certainly amounts to negligence of driver of the car bearing No. AP-04-D-2266. Even if the break lights were not grown, still failure to maintain minimum distance and inability to control the car are sufficient to conclude that the driver of the car bearing No. AP-04-D-2266 failed to take reasonable care and caution. Driving the car on the High Way in the early hours of the day as an ordinary prudent driver, without keeping minimum distance between the vehicles and failure to observe brake lights, certainly be termed as negligence on his part. Though, the second respondent-Insurance Company contended that the accident occurred due to negligent driving of the driver of car bearing No. AP-04-D-2266, did not examine any witness to prove that the driver of the van, which was proceeding ahead to the car took maximum care and caution, more particularly, about the application of sudden break, on glowing of brake lights etc., In the absence of any evidence adduced by the second respondent-Insurance Company, more particularly, the evidence of the driver of the van bearing No. AP-12-U-1776, who is competent to speak about the care and caution taken by him while driving the van, the Tribunal having no other alternative, concluded that the accident occurred due to contributory negligence of both the drivers of van and car, attributing 75% and 25% negligence to each driver taking into consideration of attending circumstances of the case and manner of accident spoken by P.W. 2, who is the direct witness to the accident and inmate of the car.

In a recent judgment of the Apex Court in National Insurance Company Ltd. Vs. Balakrishnan and Another, , the Apex Court discussed various guidelines issued by I.R.D.A. and held that if the policy is comprehensive/package policy, occupant of the car is also entitled to claim compensation and referred the guidelines issued by I.R.D.A., which are extracted as follows:

"The above circulars make it clear that the insured liability in respect of the occupant(s) carried in a private car and pillion rider carried on two-wheeler is covered under the Standard Motor Package Policy. A copy of each of the above circulars is enclosed for ready reference.

The Authority vide circular No. 066/IRDA/F & U/Mar-08 dated March 26, 2008 issued under File & Use Guidelines has reiterated that pending further orders the insurers shall not vary the coverage, terms and conditions wording, warranties, clauses and endorsements in respect of covers that were under the erstwhile tariffs. Further the Authority, vide circular No. 019/IRDA/NL/F & U/Oct-08 dated November 6, 2008 has mandated that insurers are not permitted to abridge the scope of standard covers available under the erstwhile tariffs beyond the options permitted in the erstwhile tariffs. All general insurers are advised to adhere to the afore-mentioned circulars and any noncompliance of the same would be viewed seriously by the Authority. This is issued with the approval of competent authority."

Finally it is concluded in Paragraphs 20, 21 and 22 as follows:

"20. It is also worthy to note that the High Court, after referring to individual circulars issued by various insurance companies, eventually stated thus:

In view of the aforesaid, it is clear that the comprehensive/package policy of a two wheeler covers a pillion rider and comprehensive/package policy of a private car covers the occupants and where the vehicle is covered under a comprehensive/package policy, there is no need for Motor Accident Claims Tribunal to go into the question whether the Insurance Company is liable to compensate for the death or injury of a pillion rider on a two-wheeler or the occupants in a private car. In fact, in view of the TAC''s directives and those of the IRDA, such a plea was not permissible and ought not to have been raised as, for instance, it was done in the present case.

In view of the aforesaid factual position, there is no scintilla of doubt that a "Comprehensive/Package policy" would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act Policy" stands on a different footing from a "Comprehensive/Package Policy". As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a "Comprehensive/Package Policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act Policy" which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a "Comprehensive/Package Policy, the liability would be covered. These aspects were not noticed in the case of Bhagyalakshmi (supra) and therefore, the matter was referred to a larger Bench. We are disposed to think that there is no necessity to refer the present matter to a larger Bench as the IRDA, which is presently the statutory authority, has clarified the position by issuing circulars which have been reproduced in the judgment by the Delhi High Court and we have also reproduced the same.

In view of the aforesaid legal position, the question that emerges for consideration is whether in the case at hand, the policy is an "Act Policy" or "Comprehensive/Package Policy". There has been no discussion either by the Tribunal or the High Court in this regard. True, it is, before us, Annexure P-1 has been filed which is a policy issued by the insurer. It only mentions the policy to be a "comprehensive policy" but we are inclined to think that there has to be a scanning of the terms of the entire policy to arrive at the conclusion whether it is really a "package policy" to cover the liability of an occupant in a car."

Thus, if the policy is a comprehensive/package policy, the Insurance Company is still liable to pay compensation for the death or injury of the occupant of the car. In the instant case on hand, the fourth respondent-Insurance company of the car did not adduce any evidence to prove that the policy is not a comprehensive or package policy, though the burden is upon it. Therefore, necessarily adverse inference has to be drawn against the fourth respondent-Insurance Company of the car bearing No. AP-04-D-2266, in view of the principle laid down by this Court in Repaka Rajya Laxmi and Others Vs. Poldasari Komuraiah and Others, . Therefore, the policy is to the effect that it covers the risk of persons traveling in the Car. Hence, by applying the principles laid down in the decision cited supra, we find that the fourth respondent-Insurance Company of the Car did not discharge its initial burden, thereby, liable to pay compensation in proportionate to the negligence attributed to the driver of car bearing No. AP-04-D-2226. In view of the principle laid down by this Court in Poldasari Komuraiah (supra), we are of the considered view that both respondents 1 and 2 as one set and respondents 3 and 4 as another are liable to pay compensation in proportion to the negligence attributed by the Tribunal i.e., in the ratio of 75% and 25%. Even after reappraisal of entire material available on record, we find no error in the finding recorded by the Tribunal attributing 75% negligence to the driver of van bearing No. AP-12-U-1776 and 25% negligence to the driver of car bearing No. AP04-D-2266, for the simple reason that both the drivers did not take required care and caution while driving the vehicles during the early hours of the day, but degree of care and caution required to be taken vary from driver to driver. In the instant case on hand, the degree of care and caution required to be taken by the driver of the van is more than the driver of the car, hence, attribution of 75% negligence to the driver of the van is based on sound reasoning, do not call for interference of this Court. Therefore, we find no error in the finding recorded by the Tribunal and we are totally in agreement with the finding of the Tribunal, without any hesitation. Therefore, the finding of the Tribunal is hereby confirmed. Accordingly, the point is decided.

POINT No. 3: second respondent-Insurance Company filed M.A.C.M.A. No. 2411 of 2008 challenging the quantum of compensation on different grounds. Similarly, adequacy of compensation awarded by the Tribunal was also challenged by the petitioners-claimants in Cross Objections (SR) No. 33730 of 2007. In view of the rival contentions raised in the grounds of Appeal and Cross-objections, it is the duty of this Court to reappraise the entire evidence to come to a conclusion and decide whether the compensation awarded by the Tribunal is just and reasonable, if not, the petitioners-claimants are entitled to any amount, in addition to the compensation already awarded by the Tribunal or the same can be reduced as contended by the second respondent-Insurance Company.

For assessment of compensation in death claims, the relevant factors are age of the deceased, multiplier applicable to the age group of deceased, contribution by deceased to his family and number of dependants depending on the deceased. In the instant case on hand, deceased Ramanaiah was aged 42 years as on the date of accident and his date of birth was 10.04.1959, as per Ex. A-13, copy of income tax return. The deceased Ramanaiah was aged 42 years by the date of accident and the multiplier applicable to the age group of 41 to 45 years in view of the principles laid down by the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . The deceased Ramanaiah has to be drawn against the fourth respondent-Insurance Company of the car bearing No. AP-04-D-2266, in view of the principle laid down by this Court in Repaka Rajya Laxmi and Others Vs. Poldasari Komuraiah and Others, . Therefore, the policy is to the effect that it covers the risk of persons traveling in the Car. Hence, by applying the principles laid down in the decision cited supra, we find that the fourth respondent-Insurance Company of the Car did not discharge its initial burden, thereby, liable to pay compensation in proportionate to the negligence attributed to the driver of car bearing No. AP-04-D-2226. In view of the principle laid down by this Court in Poldasari Komuraiah (supra), we are of the considered view that both respondents 1 and 2 as one set and respondents 3 and 4 as another are liable to pay compensation in proportion to the negligence attributed by the Tribunal i.e., in the ratio of 75% and 25%. Even after reappraisal of entire material available on record, we find no error in the finding recorded by the Tribunal attributing 75% negligence to the driver of van bearing No. AP-12-U-1776 and 25% negligence to the driver of car bearing No. AP04-D-2266, for the simple reason that both the drivers did not take required care and caution while driving the vehicles during the early hours of the day, but degree of care and caution required to be taken vary from driver to driver. In the instant case on hand, the degree of care and caution required to be taken by the driver of the van is more than the driver of the car, hence, attribution of 75% negligence to the driver of the van is based on sound reasoning, do not call for interference of this Court. Therefore, we find no error in the finding recorded by the Tribunal and we are totally in agreement with the finding of the Tribunal, without any hesitation. Therefore, the finding of the Tribunal is hereby confirmed. Accordingly, the point is decided.

POINT No. 3: second respondent-Insurance Company filed M.A.C.M.A. No. 2411 of 2008 challenging the quantum of compensation on different grounds. Similarly, adequacy of compensation awarded by the Tribunal was also challenged by the petitioners-claimants in Cross Objections (SR) No. 33730 of 2007. In view of the rival contentions raised in the grounds of Appeal and Cross-objections, it is the duty of this Court to reappraise the entire evidence to come to a conclusion and decide whether the compensation awarded by the Tribunal is just and reasonable, if not, the petitioners-claimants are entitled to any amount, in addition to the compensation already awarded by the Tribunal or the same can be reduced as contended by the second respondent-Insurance Company.

For assessment of compensation in death claims, the relevant factors are age of the deceased, multiplier applicable to the age group of deceased, contribution by deceased to his family and number of dependants depending on the deceased. In the instant case on hand, deceased Ramanaiah was aged 42 years as on the date of accident and his date of birth was 10.04.1959, as per Ex. A-13, copy of income tax return. The deceased Ramanaiah was aged 42 years by the date of accident and the multiplier applicable to the age group of 41 to 45 years in view of the principles laid down by the Apex Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . The deceased Ramanaiah was doing business and earning an amount of Rs. 2,40,000/- p.a. but, as per Ex. A-13, the earning of the deceased-Ramanaiah during the period from 01.04.2001 to 30.09.2001 was shown as Rs. 1,09,575/-. The date of accident was on 28.09.2001. So, to know the approximate annual earnings of deceased Ramanaiah, it is better to refer the earnings of deceased Ramanaiah as shown in Exs. A-10, A-11 and A-12, previous income tax returns for the assessment years 1999-00, 2000-01 and 2001-02 which was Rs. 1,64,214/-, Rs. 1,33,980/- and Rs. 1,46,530/- respectively. If the average income of past 3 assessment years is taken into account, the same would come to Rs. 1,48,241/- and the same can be taken as annual earnings of deceased Ramanaiah. In view of the principles laid down by the Apex Court in Rajesh and Others Vs. Rajbir Singh and Others, , it was held that in case of self employed persons, in the age group of 40 to 50 years, 30% of his I annual income shall be added as his future prospects, which comes to Rs. 44,472/- and I the total annual earnings of deceased Ramanaiah comes to Rs. 1,92,713/-. In view I of the principles laid down by the apex Court in Sarla Verma (supra), when the dependant family members of deceased are 4 to 6 in number, 1/4th of his income has to be deducted towards personal and living expenses of the deceased Ramanaiah and the remaining 3/4th income shall be treated as contribution of deceased Ramanaiah to his family, which comes to Rs. 1,44,535/- and when the same is multiplied with the appropriate multiplier applicable to the age group of deceased Ramanaiah i.e. ''14'', compensation to be awarded under the head of loss of dependency would come to Rs. 20,23,490/-. Besides loss of dependency, the first petitioner being wife is entitled to an amount of Rs. 1,00,000/- towards loss of consortium and petitioners 2 to 4, being children, are entitled to an amount of Rs. 1,00,000/- towards loss of care and guidance and an amount of Rs. 25,000/- towards funeral and transportation expenses, in terms of the principles laid down by the Apex Court in Rajesh and others (supra). Thus, in all, the petitioners-claimants in Cross-objections (SR) No. 33730 of 2007 are entitled to a total compensation of Rs. 22,48,490/-.

In view of our foregoing discussion, we find that there is no force in the contention of learned counsel for the second respondent-Insurance Company and accordingly, the Appeal preferred by the Insurance Company in M.A.C.M.A. No. 2411 of 2008 is dismissed. Whereas, the Cross-objections (SR) No. 33730 of 2007 filed by the petitioners-claimants is allowed, in part, enhancing the compensation awarded by the Tribunal from Rs. 13,50,000/- to Rs. 22,48,490/-. Thereby, respondents 1 and 2 as one set and respondents 3 and 4 as another set are jointly and severally liable to pay the compensation awarded. From out of the compensation awarded by this Court, first petitioner, being wife, is entitled to an amount of Rs. 5,48,490/-, petitioners 2 and 3, being daughters, are entitled to an amount of Rs. 4,00,000/- each, fourth petitioner, being son, is entitled to an amount of Rs. 4,00,000/- and fifth petitioner, being aged mother, is entitled to an amount of Rs. 5,00,000/-. Petitioners-claimants are permitted to withdraw their respective share amount excluding the amount, if any, withdrawn by them earlier. The rate of interest and the apportionment of negligence between the drivers i.e., first and third respondents, as held by the Tribunal, remains unaltered.

In consequence, miscellaneous petitions, if any, pending in this Appeal and Cross-objections shall stand closed. No order as to costs.