MACA Nos. 425 and 426 of 2010, Tamil Nadu State Transport Corporation (Coimbatore) Ltd. v. V. Pandy and others; Kapakavallay and others (High Court of Kerala)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** ## **MACA.NO. 425 OF 2010** **AGAINST THE AWARD IN O.P.(M.V.) NO.239/2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA DATED 21-01-2009** ## **APPELLANT/1ST RESPONDENT :** **MANAGING DIRECTOR, TAMIL NADU STATE TRANSPORT CORPORATION, (COIMBATORE)LTD., METTUPALAYAM ROAD, COIMBATORE.** **BY ADV. SRI.SUBHASH SYRIAC** ## **RESPONDENTS/APPLICANTS/2ND RESPONDENT :** - **1 V.PANDY , S/O VEERA THEVAN, ESTATE LINE, NEMAKKAD ESTATE, EAST DIVISION, MUNNAR.** - **2 PANCHAVARNAM, W/O. PANDY -DO- -DO-DO-** - **3 PADMA W/O. LATE MARICHAMY, -DO- -DO-DO-** - **4 JYOTHI, D/O. PANDI, -DO- -DO-DO-** - **5 RAMASWAMY,DOOR NO.IX/12, MARKET ROAD, IRINGOOR VILLAGE, COIMBATORE DISTRICT, TAMILNADU. BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.09.2018, ALONG WITH MACA NO.426/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NOS.425 & 426 OF 2010** **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** **MACA.NO. 426 OF 2010** **AGAINST THE AWARD IN O.P.(M.V.) NO.240/2005 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THODUPUZHA DATED 21-01-2009** ## **APPELLANT/1ST RESPONDENT :** **MANAGING DIRECTOR, TAMILNADU STATE TRANSPORT CORPORATION, (COIMBATORE) LTD., METTUPALAYAM ROAD, COIMBATORE.** **BY ADV. SRI.SUBHASH SYRIAC** ## **RESPONDENTS/PETITIONERS 1 TO 5 AND 2ND ADDITIONAL 1 ST RESPONDENT:** - **1 KARPAKAVALLAY, W/O SHANMUGHAM, FACTORY LINES, LOWER DIVISION, KANNIMALAI, ESTATE, MUNNAR.** - **2 BALAMURUGHAN, S/O. SHANMUGHAM, -DO- -DO-** - **3 VIGNESH, -DO- -DO-DO-** - **4 BALATHANDAN, -DO- -DO-DO-** - **5 KAMALAM, W/O PALANI, -DO- -DO-DO-** - **6 RAMASWAMY,DOOR NO.IX/12, MARKET ROAD, IRINGOOR VILLAGE, COIMBATORE DISTRICT, TAMILNADU.** **BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06.09.2018, ALONG WITH MACA NO.425/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NOS.425 & 426 OF 2010 3** ## **JUDGMENT** Learned counsel appearing for the appellant submitted that do not press these appeals. But the legal representatives of the deceased filed Cross Objections in the above appeals and contended that they are entitled to get just amount as compensation. 2. Order XLI Rule 22 of the Code of Civil Procedure reads as follows: R.22. (1) 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 the finding against him in the court below in respect of nay 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 appeal. Provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. (Explanation.- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under thgis rule, file cross-objection in respect of the decree in so far as it is based on that finding, **MACA.NOS.425 & 426 OF 2010 4** notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent. (2) Such cross-objection shall be in the form of a memorandum and the provisions of rule 1, so far as they relate to the from and contents of the memorandum of appeal, shall apply thereto. *** Sub-rule (3) omitted by the CPC (Amendment) Act, 1999 (46 of 1999), S.31 (w.e.f 1-7-2002) vide Notfn. S.O.603(E), dt.6-6-2002, prior to its omission it stood as under: (3) Unless the respondent files with the objection a written acknowledgment from the party who may be affected by such objection or his pleader of having received a copy thereof the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the objection, on such party or his pleader at the expense of the respondent. 4. Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule. 3. In this context, I have referred the decision of the Apex Court in **Superintending Engineer and Others** V **. B. Subba** **MACA.NOS.425 & 426 OF 2010 5** **Reddy [1999 (4) SCC 423]** for proceeding with the Cross Objection. In this decision, paragraphs 13 and 23 read as follows: 13. In **N.Jayaram Reddy** v. **Revenue Divisional Officer and Land Acquisition Officer [(1979) 3 SCC 578]** this Court was considering the nature of cross-appeals and cross-objections. It said: (SCC p.596, paras 40 & 41). “Cross-appeal and cross-objections provide two different remedies for the same purpose and that is why under Order 41 Rule 22, cross objections can be preferred in respect of such points on which that party could have preferred an appeal. If such be the position of cross objections and cross-appeal a differentiation in the matter of their treatment under Rules 3 and 4 cannot be justified merely on the ground that in case of cross-objections they form part of the same record while crossappeals are two independent proceedings. * * * To say that cross-appeals are independent of each other is to overlook the obvious position which parties adopt in cross-appeals. Interdependence of cross-appeals is the same as interdependence of appeal and cross-objections because as in the case of appeal and cross-objections a decision with regard to appeal would directly impinge upon the decision in crossobjections and vice versa. Indubitably the decision in one of the cross-appeals would directly impinge upon the decision in the other because both ultimately arise from the same decree. This is really the interdependence of cross-appeals and it is impossible to distinguish cross-appeals from appeal and crossobjections. **MACA.NOS.425 & 426 OF 2010 6** This Court then said that: (SCC p.597, para 41) 4. The learned counsel appearing for the Tamil Nadu State Road Transport Corporation submitted that they are not interested in prosecuting these appeals. If the appellant is not interested in prosecuting these appeals, this Court is bound to proceed with the Cross objections filed by the legal heirs of the victim. The position is different if the Cross objection is also not pressed by the opposite party. When the appeal and cross appeal are not pressed, this Court cannot proceed further with the appeal and Cross appeal. This position was explained by the Apex Court in **Superintending Engineer and Others** V **. B. Subba Reddy** ## **[1999 (4) SCC 423].** “ The cases which have taken the view that in cross-appeals the position is different than the one in appeal and cross-objections do not proceed on any discernible legal principle. Nor can they be explained by any demonstrable legal principle but in fact they run counter to the established legal principle.” 23. From the examination of these judgments and the provisions of Section 41 of the Act and Order 41 Rule 22 of the Code, in our view, the following principles emerge: - (1) Appeal is a substantive right. It is a creation of the statue. Right to appeal does not exist unless it is specifically conferred. **MACA.NOS.425 & 426 OF 2010 7** (2) Cross-objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the memorandum of appeal apply to cross-objection as well. (3) Court fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by an indigent person also apply to cross-objection. (4) Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined. (5) The respondent even though he has not appealed may support the decree on any other ground but if he wants to modify it, he has to file cross-objection to the decree with objections he could have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him of the day fixed for hearing the appeal. This time could also be extended by the court like in appeal. (6) Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give a quietus to the whole litigation by his accepting the judgment and decree or order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal the statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order. 5. In view of the above submission, further hearing of the the appeal is not necessary and the Cross Objectors are **MACA.NOS.425 & 426 OF 2010 8** permitted to continue with their Cross objection. The Cross Objections are posted for hearing. Sd/- **P.D. RAJAN, JUDGE** /True Copy/ P.A. To Judge NS