The court discussed the liability of the insurer of the tanker and the lorry, the right to file cross-objection in an appeal, and the assessment of negligence as a mixed question of law and facts.

K. SREEDHAR RAO, J.

( 1 ) ONE Mahadevi is the minor aged about 12 years is the deceased in M. V. C. No. 105 of 1997. The parents are petitioners seeking compensation. The Tribunal awarded compensation of Rs. 1,50,000 with interest at 6 per cent per annum, 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 and insurer of the lorry is dismissed.

( 2 ) THE insurer of the tanker is in appeal seeking avoidance of the liability on the ground that the deceased is an unauthorised passenger in the goods vehicle. The claimants have filed cross-objection seeking fastening of liability on the owner and insurer of the lorry and also enhancement of compensation. The facts disclose that the deceased and 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, 2003 ACJ 1 (SC) and M. V. Jayadevappa v. Oriental Fire and Genl. Ins. Co. Ltd. , 2005 acj 1801 (SC), the insurer of the tanker does not incur any liability to pay the compensation for the death or bodily injuries caused to passenger in a goods vehicle. Therefore, the award made against insurer is bad in law and the same is set aside.

( 3 ) THE Division Bench of this court in united India Insurance Co. Ltd. v. V. Balasubramanyam, 1990 ACJ 736 (Karnataka)and in United India Insurance Co. Ltd. v. V. Nagarathna, 2001 ACJ 1632 (Karnataka), has taken a view that in an appeal filed by the insurer, the petitioner is not entitled to seek the enhancement of compensation by way of cross-objection.

( 4 ) THE Full Bench of this court in National insurance Co. Ltd. v. Prema, 2002 acj 1889 (Karnataka), with reference to the powers and scope of this court under order 41, rule 22 has made the following observations in para 15:" (15) As discussed above, the appeal is a continuation of the original proceedings and the entire subject-matter of the claim petition is 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 pass appropriate orders. Therefore, as stated in our view cross-objection is maintainable. "

( 5 ) THE learned counsel for the owner of lorry/respondent No. 7, argued that para 14 of the judgment makes it clear that in view of the ratio laid down in United India insurance Co. Ltd. v. Bhushan Sachdeva, 2002 ACJ 333 (SC), the Full Bench came to the conclusion that the petitioners are also entitled to seek enhancement of compensation by way of cross-objection.

( 6 ) IT is argued that the Full Bench decision of this court is based on the premise that the insurer has a right of appeal under section 173 of the Motor Vehicles act in view of the decision of the Supreme court in Bhushan Sachdeva's case, 2002 acj 333 (SC), is overruled in National insurance Co. Ltd. v. Nicolletta Rohtagi, 2002 ACJ 1950 (SC ). But the ratio of the apex Court in Nicolletta Rohtagi'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 under section 170 of the Motor Vehicles act is obtained. Therefore, it is strenuously argued that since the ratio in Bhushan sachdeva's case (supra) is overruled, the petitioners no longer have right to file cross-objection in an appeal filed by the insurer. Therefore, the parties are relegated to the earlier proposition of law as laid down by the Division Bench of this court.

( 7 ) THE Full Bench has copiously discussed the powers and scope of appellate court under Order 41, rule 22 in the light of the ratio laid down by Supreme Court in Mahant Dhangir v. Madan Mohan, 1987 (Supp) SCC 528. The ratio of the Supreme court in Bhushan Sachdeva's case, 2002 acj 333 (SC) was one of the reasons for the court to come to the conclusion

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