1. Insurer’s appeal against the judgment questioning the direction of the Tribunal to indemnify the insured to pay compensation to the claimants.

2. Appeal and cross-objection are admitted and taken up for final disposal by consent.

3. From what learned counsel of both sides have adverted, the genesis of appeals is a motor vehicle accident on 26.06.2007 involving a motor cycle bearing No. KA 37/L1346 and a stationery lorry bearing No. KA 25/8235 in which the rider of the motor cycle Basanna suffered injuries and died. The pillion rider also died in the said accident. The legal heirs of victims lodged claim seeking compensation.

4. The insured owner of the vehicle did not dispute claim averments regarding act of negligence attributed to the driver of the lorry in question. The insurer of the vehicle, who is appellant herein, seriously opposed the claim firstly on the ground that accident has not occurred in the manner averred in the petition and secondly, even if it has occurred involving the lorry in question, it was totally due to act of negligence of the motor cycle rider. In this regard, they referred to the fact situation which reveal the lorry was parked on the road when the riders proceeding in the same direction ignored the vehicle. It is alleged the rider of the motor cycle by negligence did not took care to avoid the vehicle, consequent to which, the motor cycle collided with the stationery lorry at the rear portion generating severe impact injuring the riders. Both succumbed to the injuries. Thus, the contention is that accident was as a result of culpable negligence of the motor cycle rider in which no act of even actionable negligence could be attributed to the lorry driver.

5. In support of these pleas, they have referred to police investigation report in which the rider of motor cycle Basanna was indicated and arraigned for the offences under Sections 279 and 304A of I.P.C. vide Ex.P-2. Since he was dead, the charge abated. They used the final report Ex.P-2 in its support and supplemented it referring to Ex.P-3 panchanama, Ex.P-4 sketch and Ex.P-5 I.M.V. report.

6. The learned Member of the Tribunal considering the evidence of the claimants through P.W.1 Yamanappa P.W.2 Devamma, P.W.3 Basavaraj in M.V.C. 115/2008 and as also P.W.1 Bannemma and P.W.2 Basavaraj in M.V.C. No.116/2008 opined, such evidence spelled out negligence on the part of the lorry driver in parking the vehicle without the parking lights and other warning signals, and therefore, he was negligent. It absolved the motor cycle rider of contributory negligence and directed that the quantified compensation be discharged by the insurer that is seriously questioned in this appeal.

7. Learned counsel, Sri G.N. Raichur has reiterated the pleas advanced before the trial Court and seeks citations support to his contention on the following decisions-

(I) Raj Rani and others vs. oriental Insurance Co. Ltd. And others, reported in 2009 Kant M.A.C. 622 (SC) and

(II) Smt. Nasreen Banu and others vs. The Divisional Manager, New India Assurance Co. Limited, Bellary and others, reported in 2009 Kant M.A.C. 241 (Kant).

8. He also questioned maintainability of the cross objection filed by the claimant seeking enhancement relying on the decision of this Court in the case of United India Insurance Co. Ltd. vs. Salauddin Abdulkhadar Maniyar and another, reported in 2009 ACJ 524.

9. At this juncture, it is necessary that we address the question raised by learned counsel, Sri Raichur regarding maintainability of the cross-objection.

10. In the decision cited by him, the learned single Judge of this court has taken the view that in an appeal filed by the insurer questioning its liability, cross-objection by the claimant for enhancement is not maintainable. To form such opinion, learned single Judge has referred to the decision of the Division Bench ruling of this court in the case of SAVITRI BAI v. DODDAPPA AND ANOTHERS (1981 ACJ 422) where the Division B