MA No.5/2007:

Mr. Baldev Singh, Advocate

Learned counsel for the appellant submits that in view of change in law, he does not want to press this appeal. The appeal is accordingly dismissed as non pressed.

CCROS No.5/2007:

Mr. R K Bhatia, Advocate.

Mr. Baldev Singh, Advocate for R-3.

1. Notice to other respondents, however, was not issued by this Court in view of fact that the insurance company is the necessary party in these cross objections and the cross-objections can be considered in the absence of other respondents.

2. Having heard learned counsel for the parties and perused the record, I am of the considered opinion that award passed by Motor Accidents Claims Tribunal, Jammu (hereinafter referred to as “the Tribunal”) dated 30.09.2006 impugned in these cross objections deserves to be modified. The learned counsel for the respondent-Insurance Company has taken a preliminary objection to the maintainability of these cross objections. Mr. Baldev Singh, the learned counsel would submit that since the main appeal, in which these cross objections have arisen, has been withdrawn by the Insurance Company and, therefore, these cross objections cannot survive independently. He further submits that in the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”) and the Rules framed thereunder, there is no specific provision providing for filing cross objections and the party aggrieved is only entitled to file an appeal under Section 173 of the Act. It is next contended that even if it is assumed that the cross objections are maintainable under the Act, yet in view of the fact that claimants have accepted the award, they are precluded from filing the cross objections. In support of his submissions, the learned counsel appearing for the respondent-Insurance Company relies upon judgments of High Court of Himachal Pradesh rendered in the case of Lata v. United India Insurance Company Ltd and Ors.(2005 ACJ 857) and National Insurance Company Ltd. V. Amar Chand and Ors., (2006 ACJ 1831).

3. Per contra, learned counsel appearing for the Cross Objectors would submit that under the provisions of the Act and the Rules framed thereunder, there is ample provision made for filing cross objections. He refers to Rule 328 of the J&K Motor Vehicle Rules 1991 to substantiate his submission. He would further draw my attention to the provisions of Order 41 Rule 22 (4) which unequivocally provide that the cross objections would survive even independent of the appeal. It is thus submitted that the dismissal of the appeal in which the cross objections have been filed does not affect the cross objections and the same are required to be decided by Court on its merits. In support of his submissions, he relies upon Full Bench decision of the Allahabad High Court rendered in the case of U.P. State Road Transport Corporation v. Smt. Janki Devi, AIR 1982 Allahabad 296, as also Single Bench Judgment rendered in the case of Oriental Insurance Co. Ltd. V. Bannemma And Others, 2013 ACJ 2295. In support of his submission that cross objections are maintainable even if the main appeal is dismissed, learned counsel for the cross objectors has placed reliance on the judgment of the Supreme Court of India rendered in the case of Hari Shankar Rastogi v. Sham Manohar, 2005 (3) SCC 761.

4. In the backdrop of the rival contentions urged, the following questions arise for determination.

I. What is the effect of withdrawal of appeal on cross objections?

II. Whether in an appeal filed under Section 173 of the Motor Vehicle Act, it is permissible for the other side to file the cross objections when the same is not specifically provided under the Act?

III. Whether in an appeal filed by the Insurance Company on limited permissible grounds, it is open to the claimants in whose favour the award has been passed to file c