The main legal point established in the judgment is that the appellate court can grant necessary reliefs to a party under Order XLI Rule 33 CPC, even if a cross objection is not maintainable, and can modify an award in favor of the claimants based on the exercise of discretionary power.

Ramakrishnan, J.

This appeal is by the third respondent in O.P.(MW) No. 203 of 1996 on the file of the Motor Accidents Claims Tribunal, Ernakulam. Appellant is the insurer of a Bus bearing Registration No. KRE 9761 involved in a motor accident occurred on 9.10.1985 in which one Stansilovos died. Respondents 1 to 5 in the appeal are the 5 claimants who have filed the petition originally. Thereafter, the 4th respondent in the petition was transposed as additional claimant No. 6 in the petition. In the appeal he is impleaded as the 6th respondent. Respondents 7 and 8 in the appeal are the driver and owner of the bus in question. They were respectively respondents 1 and 2 in the petition.

2. Respondents 2 and 4 and 6 have filed a cross objection in the appeal. The cross objection was filed in time on 20.3.1992.

3. The case of claimants 1 to 5 was that they are the legal heirs of deceased Stansilavos and on the fateful day the deceased was travelling as a pillion rider on a motor bike driven by P. W.2. While so, the bus in question hit the motor bike and he was thrown out on the road. He suffered fatal injuries to which he succumbed on 20.10.1985 at the Medical Trust Hospital, Ernakulam. Claimants have alleged that it was solely on account of the rash and negligent driving of the bus by the 7th respondent that the accident has occured. Accordingly a total amount of Rs. 4,30,000/- was claimed as compensation against the owner, driver and the insurer of the bus. Claimants stated that the deceased at the time of death was a Class 'A' Contractor aged 47 years working in the Minor Irrigation Department and was earning an amount of Rs. 2,000/- per mensem.

4. Respondents 7 and 8 have filed a joint written statement denying negligence and contending that the quantum of compensation claimed is highly excessive and illegal. The appellant has also filed a written statement denying its liability raising the contention that the bus driver was not at fault. It was specifically contended that the accident occurred mainly due to the negligence shown by the rider of the motor bike. It was also contended that the compensation amount claimed is excessive. There was a further contention that even if the appellant is found to be liable to pay compensation, it can be made liable only to the extent of Rs. 50,000/- since its liability is limited to the extent of Rs. 50,000/- as per the policy.

5. On taking evidence and considering the rival contentions put forward by the parties, the Tribunal found contributory negligence on the part of the pillion rider of the motor bike as well as the driver of the bus and apportioned the contributory negligence in the ratio of I:3. As regards the amount of compensation, Rs. 97,200/- was found to be the just compensation payable for the loss suffered by the claimants. 1/4th of the said amount was deducted on account of the contributory negligence found by the Tribunal. Third respondent was found to be liable to indemnify the second respondent to the full extent and as such was directed to deposit the entire award amount, interest and proportionate costs within a period of two months from the date of the award.

6. In the appeal, the learned counsel for the appellant has submitted that even though the Tribunal has noted the specific contention raised by the appellant in the written statement that as per the policy issued in respect of the bus in question, the liability of the insurer to the third party is limited to Rs. 50,000/- and as such even if the driver of the bus is found to be negligent, the insurer can be made liable only to that extent, the Tribunal has totally failed to consider the said contention while making the appellant liable for the entire amount of compensation awarded. It was submitted that the Tribunal ought to have framed issues as per the relevant rules. In the absence of necessary issues, the Tribunal has totally failed to consider the contention raised on behalf of the appellant. The omissio