Oriental Fire and General Insurance Co. Ltd. vs Kamlabai

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
M. L. Dhupar for appellant; P. C. Saxena and Samvatsar for respondents.

Headnote:(1) Motor Vehicles Act, 1939-S. 95-Motor Vehicles Rules, 1974 (M. P.)-R. I05-gratuitous passenger dying in truck accident-insurer is not liable.
        (2) Civil P. C., 1908-O.41, R. 33-claimants not filing any cross-object ions-prayer to enhance rate of interest cannot be allowed.

       ¼1½ eksVj ;ku vf/kfu;e] 1939&/kkjk 95&eksVj ;ku fu;e] 1974 ¼eŒizŒ½&fuŒ 105&Vªd nq?kZVuk esa fu%‘kqYd ;k=h dh e`R;q&chekdrkZ nk;h ugha gSA

       ¼2½ flfoy izfdz;k lafgrk] 1908&vkŒ 41] fuŒ 33&nkosnkjksa us dksbZ izR;k{ksi Qkby ugha fd,&Ckt dh nj c<+kus dh izkFkZuk eatwj ugha dh tk ldrhA
        The contention of the learned counsel for the appellant is that the deceased were gratuitous passengers and as the insurance policy relating to the vehicle is merely an Act Policy, not covering the risk of such passengers, no liability for compensation could be fastened on the insurer. In support of this submission reliance was placed on the Full Bench decision in Kallu Maharajs case (1989 JLJ 490).
        Held: In the Division Bench decision in Shivlals case (1987 10153) this Court has held that the Act does not require coverage of the risk of a gratuitous passenger in a tractor and in the absence of any term in the policy covering the risk of such a passenger no liability in respect of him can be fastened on the insurer.
        It is no doubt true that in the Full Bench decision in Narayanlals case (1979 JLJ 461) it has been held that the act of a servant employed to drive a vehicle in giving lift to a person in disregard to Rule 105 framed under the Act providing that no person should be carried in a goods vehicle other than a bona fide employee of the owner or the hirer of the vehicle or prohibition while driving the vehicle in execution of the owners business is an act for which the owner is vicariously liable but it does not follow that because of the owner is liable, the liability is automatically extended to the insurer as well. The liability of the insurer has to be determined with reference to the provisions of the Act and the terms of the insurance policy.
        As a result of the foregoing discussion I have no hesitation in holding that the learned Tribunal erred in holding that the insurer too was liable to pay compensation along with the owner of the accident vehicle.
        This brings us to the prayer of the claimants for enhancement of the rate of interest awarded by the learned Tribunal.
        On a careful consideration I am of the view that the prayer aforesaid cannot be allowed. Order 41; rule 22 (1) of the Civil Procedure Code, 1908 (for short the Code) provides that 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 tee finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross objection to the decree which he could have taken by way of an appeal. The explanation below the provision is to the effect that a respondent aggrieved by a finding of the Court may, under this rule, file cross objection in respect of the decree so far as it is based on a finding by which he is aggrieved. The decision in Santoshs case (1985 M. P. W. N. 145) makes an illuminating reading on the aforesaid provision in order 41, rule 22 of the Code.
        In the instant case the claimants have not filed any cross-objection and the prayer cannot be allowed with recourse to the principles of order 41, rule 33 of the Code. As to the scope of the said provision it bas been observed thus in paragraph 17 of the Division Bench decision in Sumanbais case (AIR 1985 M. P. 62) :
        "A reading of O. 41, R. 33 clearly goes to show that the rule has been made to provide for certain contingency where it may become necessary to pass a decree although a party may not have preferred an appeal but it does not provide that where a decree has become final against the defendant and the defendant has not challenged that decree by way of appeal or cross-objection still it can be set aside because one of the parties has preferred the appeal whereof the question of the decree against the other defendant is not at all raised."

        The decision in Rukmani Devis case (1984 A. C. J. 548) is also opposite. 1989 JLJ 490 (FB) 1987 JLJ 712. 1987 JLJ 153, 1979 JLJ 461 (FB), 1985 MPWN 145, AIR 1985 MP 62 and 1984 ACJ 548 relied on. Appeal allowed.