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Supreme Court of India
Urmila Devi vs Branch Manager, National … on 30 January, 2020Author: Hon’Ble The Justice
Bench: Hon’Ble The Justice, B.R. Gavai, Surya Kant
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 838 OF 2020
(Arising out of SLP(C) No. 12230 of 2016)
URMILA DEVI & ORS. …APPELLANT(S)
VERSUS
BRANCH MANAGER, NATIONAL INSURANCE
COMPANY LTD. & ANR. …. RESPONDENT(S)
JUDGMENT
1. Leave granted.
2. Heard the learned counsels for the parties.
3. The present appeal challenges the judgment and order
dated 21.01.2016 passed by the learned single judge of the
High Court of Patna in Miscellaneous Appeal No.521 of 2011
thereby, holding the crossobjection of the claimant to be not
maintainable.
Signature Not Verified
Digitally signed by
CHARANJEET KAUR
Date: 2020.01.30
17:13:56 IST
Reason:
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4. The facts, bare necessary, for decision of the present
appeal, are as under:
5. On 2.5.2008, Sanjay Tanti, husband of appellant No.1;
father of appellant Nos. 2 to 4 and son of appellant No.5 met
with an accident while he was travelling from Ladma to
Goradih by a Tata Maxi. The appellants filed a Claim
Petition under Section 166 of the Motor Vehicles Act, 1988
(hereinafter referred to as “the M.V. Act”). The owner of the
vehicle was joined as Opponent No.1; the driver of the vehicle
was joined as Opponent No.2 whereas, the National
Insurance Company Limited (hereinafter referred to as “the
Insurance Company”) were joined as Opponent Nos. 3 and 4.
6. The claim of the Insurance Company was that the driver
and owner of the vehicle had breached the terms and
conditions of the insurance policy and, as such, they are not
liable for payment of compensation.
7. The Motor Vehicle Accidental Claim Tribunal
(hereinafter referred to as “the Tribunal”) vide judgment and
order dated 29.1.2011, rejected the contention of the
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Insurance Company that the driver and owner of the vehicle
had breached the terms and conditions and while allowing
the Claim Petition directed the Insurance Company to pay
compensation of Rs.2,47,500/ to the claimants in terms of
the order dated 29.1.2011.
8. Being aggrieved by the judgment and award passed by
the learned Tribunal, the Insurance Company preferred Misc.
Appeal No.521 of 2011 before the High Court at Patna
contending therein, that the learned Tribunal had
erroneously fastened the liability on it. In the said appeal, a
crossobjection came to be filed by the appellants herein.
When the appeal came up for hearing, it was noticed that the
appeal was dismissed for want of office objections and the
counsel for the appellants therein (Insurance Company)
stated that the appellants (Insurance Company) were not
interested in reviving the appeal. The appeal was, as such,
disposed of by the High Court. Insofar as the crossobjection
of the appellants herein (the claimants) is concerned, the
High Court vide the impugned judgment and order dated
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21.01.2016 held, that when the appeal filed by the Insurance
Company is only restricted to denial of its liability to make
the payment of compensation then in such case the cross
objection at the behest of the claimants in the shape of
appeal would not be tenable. It, however, held that if the
Insurance Company in the appeal challenges the quantum of
compensation, in such a case, the claimant(s) will have a
right to file an objection in terms of Order XLI rule 22 of the
Code of Civil Procedure, 1908 (hereinafter referred to as
“CPC”) and, as such, dismissed the crossobjection as not
maintainable.
9. The High Court of Patna in view of Rule 249 of the Bihar
Motor Vehicles Rules, 1992 has held, that there is no
impediment for the claimant(s) to file crossobjection in an
appeal filed by the Insurance Company if the Insurance
Company had challenged the quantum of compensation
awarded to the claimant. It, however, held that if the appeal
filed by the Insurance Company is restricted only to its
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liability to make the payment of compensation on the ground
of breach of terms and conditions of the insurance policy by
the vehicle owner and/or driver of the vehicle, then the cross
objection filed by the claimant would not be tenable. It has
been held, that in such a case the claimant(s) will have a
right to file an appeal as provided under Section 173 of the
M.V. Act.
10. Being aggrieved, the appellants are before us by way of
present appeal by special leave.
11. The learned counsel appearing on behalf of the
appellants submit that the High Court has totally erred in
holding that the crossobjection filed by the claimants was
not maintainable since the appellant Insurance Company
has not challenged the quantum of compensation.
12. Per contra, the learned counsel for the Insurance
Company submit, that the High Court has rightly rejected the
crossobjection of the appellants herein. It is submitted that
since the Insurance Company had not pressed the appeal,
the crossobjection was rightly rejected by the High Court.
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13. The provisions of Section 173 of the M.V. Act and Order
XLI rule 22 of the CPC, relevant for the present appeal, read
thus:
Section 173 of the M.V. Act.
“173. Appeals. (1) Subject to the provisions of
subsection (2) any person aggrieved by an award
of a Claims Tribunal may, within ninety days
from the date of the award, prefer an appeal to
the High Court:
Provided that no appeal by the person who is
required to pay any amount in terms of such
award shall be entertained by the High Court
unless he has deposited with it twentyfive
thousand rupees or fifty percent of the amount so
awarded, whichever is less, in the manner
directed by the High Court:
Provided further that the High Court may
entertain the appeal after the expiry of the said
period of ninety days, if it is satisfied that the
appellant was prevented by sufficient cause from
preferring the appeal in time.
(2) No appeal shall lie against any award of a
Claims Tribunal if the amount in dispute in the
appeal is less than ten thousand rupees.”
Order XLI rule 22 of the CPC
“22. Upon hearing respondent may object to
decree as if he had preferred separate appeal.—
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(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 crossobjection 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 of 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 crossobjection 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.
(2) Form of objection and provisions
applicable thereto.—Such crossobjection shall
be in the form of a memorandum, and the
provisions of Rule 1, so far as they relate to the
form and contents of the memorandum of appeal,
shall apply thereto.
(3) * * *
(4) Where, in any case in which any respondent
has under this rule filed a memorandum of
objection, the original appeal is withdrawn or is
dismissed for default, the objection so filed may
nevertheless be heard and determined after such
notice to the other parties as the Court thinks fit.
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(5) The provisions relating to appeals by
indigent persons shall, so far as they can be made
applicable, apply to an objection under this rule.”
14. Rule 249 of the Bihar Motor Vehicle Rules, 1992 reads
thus:
“249. Manner of appeals. (1) Every appeal
against the Claims Tribunal shall be preferred in
the form of a memorandum signed by the
appellant or an advocate or attorney of the High
Court duly authorised in that behalf by the
applicant and presented to the High Court or to
such officer as it appoints in this behalf. The
memorandum shall be accompanied by a copy of
the award.
(2) The memorandum shall set forth concisely
and under district heads the grounds of objection
to the award against which the appeal is
preferred without any argument or narrative and
such grounds shall be numbered consecutively.
(3) Save as provided in subrules (1) and (2), the
provisions of Order XLI and Order XXI in First
Schedule to the Code of Civil Procedure, 1908 (V
of 1908) shall mutatis mutandis apply to appeals
preferred to the High Court under Section 173.”
15. In view of the aforesaid provision, the High Court has
rightly come to a conclusion that the claimants would be
entitled to file a crossobjection. However, it has restricted
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the right of the claimants to file crossobjection only when an
appeal is filed by the Insurance Company challenging
quantum of compensation by placing reliance on previous
judgments of Patna High Court. It has been held, that when
the Insurance Company has not challenged the quantum of
compensation but only challenges its liability to pay
compensation on the ground that there is a breach of terms
and condition by the driver and/or the owner of the vehicle,
the crossobjection would not be tenable at the instance of
the claimants.
16. An issue arose before the learned ThreeJudge Bench of
this Court in the case of Municipal Corporation of Delhi &
Ors. vs. International Security & Intelligence Agency
Limited1, as to whether in an appeal under Section 39 of the
Arbitration Act, 1940, a respondent has a right to file cross
objection and, if so, whether the crossobjection must be
heard and decided on merits though the appeal by reference
1 (2004) 3 SCC 250
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to which crossobjection has been filed is itself dismissed as
not maintainable.
17. This Court in the said judgment observed thus:
“14. Right of appeal is creature of statute.
There is no inherent right of appeal. No
appeal can be filed, heard or determined on
merits unless the statute confers right on
the appellant and power on the court to do
so. Section 39 of the Act confers right to file
appeal, insofar as the orders passed under
this Act are concerned, only against such of
the orders as fall within one or other of the
descriptions given in clauses (i) to (vi) of
subsection (1) of Section 39. Parliament
has taken care to specifically exclude any
other appeal being filed, against any order
passed under the Act but not covered by
clauses (i) to (vi) abovesaid, by inserting the
expression “and from no others” in the text
of subsection (1). Clause (a) of Section 41
extends applicability of all the provisions
contained in the Code of Civil Procedure,
1908 to (i) all proceedings before the court
under the Act, and (ii) to all the appeals,
under the Act. However, the applicability of
such of the provisions of the Code of Civil
Procedure shall be excluded as may be
inconsistent with the provisions of the Act
and/or of rules made thereunder. A bare
reading of these provisions shows that in all
the appeals filed under Section 39, the
provisions of the Code of Civil Procedure,
1908 would be applicable. This would
include the applicability of Order 41
including the right to take any cross
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objection under Rule 22 thereof to appeals
under Section 39 of the Act.
15. Right to prefer crossobjection partakes
of the right to prefer an appeal. When the
impugned decree or order is partly in favour
of one party and partly in favour of the
other, one party may rest contented by his
partial success with a view to giving a
quietus to the litigation. However, he may
like to exercise his right of appeal if he finds
that the other party was not interested in
burying the hatchet and proposed to keep
the lis alive by pursuing the same before the
appellate forum. He too may in such
circumstances exercise his right to file
appeal by taking crossobjection. Thus
taking any crossobjection to the decree or
order impugned is the exercise of right of
appeal though such right is exercised in the
form of taking crossobjection. The
substantive right is the right of appeal; the
form of crossobjection is a matter of
procedure.
16. Though the statement of law made
hereinabove flows simply by the reading of
the relevant statutory provisions yet some
available decisions may also be noticed.In Bhadurmal v. Bizaatunnisa Begum [AIR
1964 AP 365 : (1964) 1 An WR 290] a
Division Bench presided over by
Jaganmohan Reddy, J. (as His Lordship
then was) held crossobjection to be
maintainable in an appeal preferred under
Sections 47 to 49 of the Hyderabad
Jagirdars Debt Settlement Act, 1952
12
because the provisions of the Civil
Procedure Code were generally applicable by
virtue of Section 51 thereof. The
applicability of Order 41 Rule 22 to the
appeals under that Act was held not
excluded merely because provisions
governing grounds of appeal and court fees
were specifically enacted in the Hyderabad
Act. In Inayatullah Khan v. Diwanchand
Mahajan [AIR 1959 MP 58 : 1958 MP LJ
786] Chief Justice M. Hidayatullah (as His
Lordship then was) upheld maintainability
of the crossobjection in an election appeal
under Section 116A of the Representation
of the People Act, 1951 because the High
Court as an appellate court hearing an
appeal under Section 116A was enjoined to
exercise the same powers, jurisdiction and
authority and to follow the same procedure
as it would have exercised or followed in
respect of a civil appeal under the Code of
Civil Procedure. In Ramasray
Singh v. Bibhisan Sinha [AIR 1950 Cal 372]
the Division Bench consisting of Harries,
C.J. and Bachawat, J. (as His Lordship then
was) held that conferment of right of appeal
by Section 38 of the Bengal MoneyLenders
Act, 1940 which spoke of the order being
appealable in the same manner as if it were
a decree of the court implied a right in the
respondent to file crossobjection inasmuch
as the jurisdiction to hear appeal was
conferred on a preestablished civil court,
namely, the Court of the District Judge and
nothing was expressly stated as to the
procedure regulating such appeal. In A.L.A.
Alagappa Chettiar v. Chockalingam
13
Chetty [AIR 1919 Mad 784 : ILR 41 Mad 904
(FB)] a Full Bench of the High Court of
Madras presided over by Wallis, C.J. held
that right of the respondent to proceed by
way of memorandum of crossobjections
was strictly incidental to the filing of appeal
by opposite party and therefore in an appeal
under Sections 46 and 47 of the Provincial
Insolvency Act, 1907, crossobjections were
maintainable as the procedure prescribed in
the Civil Procedure Code is the standard
procedure and applicable to courts
exercising powers in insolvency cases.
17. With advantage, we may also refer to
observations of this Court made in Baru
Ram v. Prasanni [AIR 1959 SC 93 : 1959
SCR 1403] . Section 116A of the
Representation of the People Act, 1951
contemplates an appeal being laid before
the Supreme Court from every order made
by the High Court under Section 98 or
Section 99 of that Act. Section 116C
provides for every such appeal being heard
and determined by the Supreme Court as
nearly as may be in accordance with the
procedure applicable to the hearing and
determination of any appeal from any final
order passed by the High Court in exercise
of its original civil jurisdiction subject to the
provisions of that Act and the Rules, if any.
All the provisions of the Code of Civil
Procedure, 1908 and rules of the court
shall, so far as may be, apply in relation to
such appeal. P.B. Gajendragadkar, J. (as
His Lordship then was) speaking for the
Court observed: (AIR p. 99, para 11)
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“There is no doubt that, in an ordinary
civil appeal, the respondent would be
entitled to support the decree under
appeal on grounds other than those
found by the trial court in his favour.
Order 41 Rule 22 of the Code of Civil
Procedure which permits the respondent
to file crossobjections recognize the
respondent’s right to support the decree
on any of the grounds decided against
him by the court below. In the present
case no appeal could have been preferred
by Respondent 1 because she had
succeeded in obtaining the declaration
that the appellant’s election was void and
it should therefore be open to her to
support the final conclusion of the High
Court by contending that the other
finding recorded by the High Court which
would go to the root of the matter is
erroneous. Prima facie there appears to
be some force in this contention;”
However, the Court did not express any final
opinion thereon as it was considered not
necessary to decide the point in that appeal.
18. We have, therefore, no doubt in our
mind that right to take a crossobjection is
the exercise of substantive right of appeal
conferred by a statute. Available grounds of
challenge against the judgment, decree or
order impugned remain the same whether it
is an appeal or a crossobjection. The
difference lies in the form and manner of
exercising the right; the terminus a quo (the
starting point) of limitation also differs.
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19. In Superintending Engineer v. B. Subba
Reddy [(1999) 4 SCC 423] a twoJudge
Bench of this Court observed (vide SCC p.
434, para 24):
“If there is no right of crossobjection
given under Section 39 of the Act, it
cannot be read into Section 41 of the Act.
Filing of crossobjection is not procedural
in nature. Section 41 of the Act merely
prescribes that the procedure of the Code
would be applicable to the appeal under
Section 39 of the Act. We are, therefore,
of the opinion that crossobjection by the
respondent was not maintainable….”
Such observation is not correct and
proceeds on certain wrong premises. Firstly,
form of crossobjection is procedural and is
only a manner of exercising right of appeal
which is substantive, as we have already
stated. Secondly, it is not merely the
procedure prescribed by the Code of Civil
Procedure which has been made applicable
to proceedings under the Arbitration Act by
Section 41(a) of the Act; the entire body of
the Code of Civil Procedure, 1908 has been
made applicable to all proceedings before
the court and to all appeals under the
Arbitration Act, 1940. The provision is
general and wide in its applicability which
cannot be curtailed; the only exception
being where the provisions of the Arbitration
Act and/or of the rules made thereunder
may be inconsistent with the provisions of
the Code of Civil Procedure, 1908 in which
case the applicability of the latter shall
stand excluded but only to the extent of
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inconsistency. We may hasten to add that to
the extent of our disagreement with the law
laid down in B. Subba Reddy case [(1999) 4
SCC 423] the proposition appears to have
been rather widely stated in that case. In
fact the question before the Court in B.
Subba Reddy case [(1999) 4 SCC 423] was
whether crossobjection seeking the relief of
award of interest at a higher rate was
maintainable though such an order did not
fall within the purview of Section 39(1) of
the Act.
20. Once we hold that by taking cross
objection what is being exercised is the right
of appeal itself, it follows that the subject
matter of crossobjection and the relief
sought therein must conform to the
requirement of Section 39(1). In other
words, a crossobjection can be preferred if
the applicant could have sought for the
same relief by filing an appeal in conformity
with the provisions of Section 39(1) of the
Act. If the subjectmatter of the cross
objection is to impugn such an order which
does not fall within the purview of any of the
categories contemplated by clauses (i) to (vi)
of subsection (1) of Section 39 of the Act,
the crossobjection shall not be
maintainable.”
18. It, thus, could be seen, that this Court has held that the
right to prefer crossobjection partakes of the right to prefer
an appeal. It has been held, that when the impugned decree
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or order is partly in favour of one party and partly in favour of
the other, one party may rest contented by his partial success
with a view to giving a quietus to the litigation. It, however,
held that if he finds that the other party was not interested in
giving an end to the litigation and proposed to keep the lis
alive by pursuing the same before the appellate forum, he
may like to exercise his right of appeal. It has been held, that
he too may in such cases and circumstances exercise his
right to file appeal by taking cross objection. It has been next
held, that taking any crossobjection to the decree or order
impugned is the exercise of right of appeal though such right
is exercised in the form of taking crossobjection. It has been
held, that the substantive right is the right of appeal and the
form of cross objection is a matter of procedure.
19. While arriving at the said decision, this Court relied on
the judgment in the case of Bhadurmal vs. Bizaatunnisa
Begum2, wherein an issue with regard to maintainability of
crossobjection in an appeal preferred under Sections 47 to
2 AIR 1964 AP 365
18
49 of Hyderabad Jagirdars Debt Settlement Act, 1952 was
considered. It also relied on the judgment in the case of
Inayatullah Khan vs. Diwanchand Mahajan3, wherein
maintainability of cross objection in an election appeal under
Section 116A of the Representation of the People Act, 1951
was upheld. It further relied on the judgment of the Calcutta
High Court in the case of Ramasray Singh & Ors. vs.
Bibhisan Sinha4, upholding the right of the respondent to
file crossobjection in an appeal contemplated under Section
38 of Bengal MoneyLenders Act, 1940.
20. It further relied on certain observations of this Court in
the case of Baru Ram vs. Prasanni5. This Court did not
agree with the contrary view taken by the learned twojudge
Bench of this Court in the case of Superintending Engineer
& Ors. vs. B. Subba Reddy6. However, holding so, this
Court held that since the right to appeal under Section 39 of
the Arbitration Act, 1940 was only restricted to clauses (i) to
3 AIR 1959 MP 58
4 AIR 1950 Cal 372
5 AIR 1959 SC 93 : 1959 SCR 1403
6 (1999) 4 SCC 423
19
(vi) of subsection (1) thereof, the crossobjection also must
conform to the said requirement. In other words, it was held
that a crossobjection would be maintainable only if the
subjectmatter thereof falls in any of the category carved out
under clauses (i) to (vi) of subsection (1) of Section 39 of the
Arbitration Act, 1940.
21. This Court further found that the entire Order XLI rule
22 CPC would apply to a crossobjection including the
provisions of subrule (4) thereof. It was held, that if the
original appeal is found to be incompetent or not
maintainable if it is filed against an order not falling under
any of the clauses (i) to (vi) of subSection (1) of Section 39,
then the cross objection shall also fail on that ground and
cannot be adjudicated upon on merits. It could, thus, be
seen that the view taken by the Court is that the cross
objection would be tenable only if appeal is validly tenable.
22. A perusal of Section 173 of the M.V. Act would reveal
that the said provision does not restrict the right to file an
appeal as is restricted under Section 39 of the Arbitration
20
Act, 1940. It provides, that any person aggrieved by an
award of a Claims Tribunal, subject to the provisions of sub
section (2) thereof, may prefer an appeal to the High Court.
The restriction imposed under subsection (2) of Section 173
is with regard to nonfiling of appeal against any award of a
Claims Tribunal if the amount in dispute in the appeal is less
than ten thousand rupees. Needless to mention that this is
subject to the provisions about limitation.
23. As already discussed herein above, the learned single
judge of the High Court himself has observed that in view of
Rule 249 of the Bihar Motor Vehicle Rules, 1992, there
cannot be any issue with regard to the tenability of the cross
objection. Subrule (3) of Rule 249 of the Bihar Motor Vehicle
Rules, 1992 would show, that save as provided in subrules
(1) and (2), the provisions of Order XLI and Order XXI in
First Schedule to the CPC shall apply mutatis mutandis to
appeals preferred to the High Court under Section 173 of the
M.V. Act.
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24. A conjoint reading of the provisions of Section 173 of the
M.V. Act; Rule 249 of the Bihar Motor Vehicle Rules, 1992;
and Order XLI rule 22 of the CPC would reveal, that there is
no restriction on the right to appeal of any of the parties. It is
clear, that any party aggrieved by any part of the Award
would be entitled to prefer an appeal. It is also clear, that
any respondent, though he may not have appealed from any
part of the decree, apart from supporting the finding in his
favour, is also entitled to take any crossobjection to the
decree which he could have taken by way of appeal.
25. When in an appeal the appellant could have raised any
of the grounds against which he is aggrieved, we fail to
understand, as to how a respondent can be denied to file
crossobjection in an appeal filed by the other side
challenging that part of the Award with which he was
aggrieved. We find, that the said distinction as sought to be
drawn by the High Court is not in tune with conjoint reading
of the provisions of Section 173 of the M.V. Act; Rule 249 of
22
the Bihar Motor Vehicle Rules, 1992; and Order XLI rule 22
of the CPC.
26. As a matter of fact, it could be seen from the prayer
clause in the appeal preferred by the respondents herein
(Insurance Company) before the High Court that the entire
award was challenged by the respondents – Insurance
Company. Not only that, but the appellants herein (the
claimants) were also impleaded as party respondents to the
said appeal. In such circumstances, the High Court has
erred in declining to consider the crossobjection of the
appellants herein (the claimants) on merits.
27. There is another angle to it. Subrule (4) of Rule 22 of
Order XLI of the CPC specifically provides, that even if the
original appeal is withdrawn or is dismissed for default, the
crossobjection would nevertheless be heard and determined
after such notice to the other parties as the Court thinks fit.
We are, therefore, of the considered view, that even if the
appeal of the Insurance Company was dismissed in default
23
and the Insurance Company had submitted that they were
not interested to revive the appeal, still the High Court was
required to decide the crossobjection of the appellants herein
on merits and in accordance with law.
28. In the result, the appeal is allowed. The impugned
judgment and order dated 21.1.2016 holding that the cross
objection of the present appellants was not maintainable is
quashed and set aside. The matter is remitted back to the
High Court for deciding the crossobjection filed by the
present appellants on its own merits. There shall be no order
as to costs.
…………………..CJI.
[S.A. BOBDE]
………………….J.
[B.R. GAVAI]
………………….J.
[SURYA KANT]
NEW DELHI;
JANUARY 30, 2020
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