JUDGMENT
G.S. Singhvi, J.
1. The facts necessary for deciding these appeals are that Prem Nath and Pawan Kumar, who were travelling in truck No. HRH 5995 driven by one Jasbir Singh as owners of goods being transported in the said truck were killed in an accident that took place on 17.3.1980 at 1.30 a.m. near Village Chikanwas, Hisar-Sirsa road. The other vehicle involved in the accident was truck No. PNO-1537 which was loaded with cotton bales and was driven by Hukam Chand. As a result of collision, truck No. HRH-5995 turned turtle and caught fire resulting in the death of the owners of the goods. Surinder son of the owner of truck No.HRH-5995 and driver of truck No. PNO-1537 were also killed in the accident. Smt. Krishna Devi and other heirs of late Shri Prem Nath filed petition under the Motor Vehicles Act, 1939 for award of compensation. A similar petition was filed by Smt. Shanti Devi, widow of late Shri Pawan Kumar and his heirs. The claimants limited their claim to Rs. 40,000/- because of their inability to pay ad valorem court fee. The Insurance Company, the owners and the drivers of the two trucks were impleaded as party respondents by the claimants. The learned Motor Accident Claims Tribunal, Hisar clubbed the two cases and decided them by one judgment dated 31.10.1983. The Tribunal held the drivers of both the trucks guilty of rash and contributory negligent driving (70% qua driver of truck No. HRH-5995 and 30% of the driver of truck No. PNO-1537). On the issue of compensation, the Tribunal applied the multiplier of 10 and assessed the compensation payable to the claimants as Rs. 60,000/- in each case but restricted the award to Rs. 40,000/- in view of the prayer made in the claim petitions. The Tribunal also held the Insurance Company of truck No. HRH-5995 liable to pay compensation. The operative part of the award, passed by the Tribunal reads as under:-
“In view of my findings above, petitioner Krishna Devi in petition Krishna Devi v. Hardev Singh etc. is entitled to Rs. 16,000/- and petitioners Ravi Kumar, Narenderpal and Chander Kanta are entitled to Rs. 8,000/- each with interest at the rate of 8% per annum from the date of award. The petitioners Shanti Devi, Ashok Kumar, Shimpu, Anita and Buchar in petition Shanti Devi v. Hardev Singh etc., are entitled to Rs. 8000/- each with interest at the rate of 8% per annum from the date of award. Since the accident had been caused by composite negligence of drivers of both the trucks and their negligence has been assessed at 70% and 30%, therefore, the owners and insurer of truck No.HRH-5995 are liable to pay Rs. 28,000/- in each petition while the owners and insurer of truck No. PNO-1537 are liable to pay Rs. 12,000/- in each petition. Since the accident had been caused by the composite negligence of drivers of both the trucks, therefore, owners and insurance company of both the vehicles are jointly and severally liable to pay the amount of compensation in both the petitions.”
2. The New India Assurance Company Limited filed F.A.O. No. 458 and 459 of 1984 against the award passed by the Tribunal in which the claimants, Owners of the trucks and insurer of truck No. PNO-1587 were impleaded as party respondents. On receipt of notice of the appeal, the claimants (appellants herein) filed separate cross objections dated 28.9.1985 under Order XLT, Rule 22 for enhancement of compensation and award of interest @18% from the date of accident. They also filed separate applications dated 13.11.1985 under Order VI, Rule 17 for grant of leave to amend the claim petitions. The learned Single Judge allowed the appeals filed by the Insurance Company and dismissed the cross objections as well as the amendment applications filed by the claimants.
3. Shri M.S. Ratta assailed the judgment of the learned Single Judge by arguing that rejection of amendment application filed by the claimants-appellants is per se erroneous because the learned Single Judge failed to apply the basic principles which should guide the Court while deciding an application for amendment. Shri Ratta relied on the judgments of the Supreme Court in Nanduri Yogananda Lakshminarasimhachari and Ors. v. Sri Agastheswaraswamivaru, A.LJl. 1960 S.C. 622 and Harcharan v. State of Haryana, A.I.R. 1983 S.C. 43. He then argued that the main judgment is liable to be declared erroneous because the Tribunal as well as the learned Single Judge have failed to keep in mind the settled principle of law that interest is payable atleast @12% per annum from the date of application. He relied on Lachhman Singh and Ors. v. Gurmit Kaur and Ors., (1979)81 P.L.R. 1; General Manager, Kerala, State Road Transport Corporation, Trivandrum v. Mrs. Susamma Thomas and Ors., (1994-2)107 P.L.R. 1 (S.C); Smt. Sarla Dixit and Anr. v. Balwant Yadav and Ors., A.I.R. 1996 S.C. 1274. Shri Ratta also, questioned the correctness of the impugned judgment by arguing that the cross objections filed by the claimants” have not been dealt with and decided in the light of the judgments of the Supreme Court and the various High Courts. He invited our attention to the decisions of the Supreme Court in Panna Lal v. State of Bombay and Ors., A.I.R. 1963 S.C. 1516; Koksingh v. Smt. Deokabai, A.I.R. 1976 S.C. 634; Vadlamudi Venkateswarlu and Anr. v. Ravipati Ramamma and Anr., A.I.R. 1950 Madras 379; Kudapa Subbanna v. Chitturi Sebbanna and Ors., A.I.R. .1962 Andhra Pradesh 500; National Insurance Co. Baroda v. Diwaliben and Ors., A.I.R. 1982 Gujarat 145 and National Insurance Co. Ltd. v. Tulsi Devi and Ors., 1988 Accidents Claims Journal 962. Learned counsel appearing for the respondents supported the judgment under appeal and argued that the application for amendment filed by the claimants have been rightly rejected by the learned Single Judge. They also argued that cross objections filed by the claimants were not maintainable under Order XLT, Rule 22. Shri Manmohan Singh invited our attention to following decisions:
(i) National Insurance Co. Ltd. v. H.N. Rama Prasad and Ors., 1985 Accidents Claims Journal 864;
(ii) Labh Singh v. Sunehri Devi and Ors., 1988 A.C.J. 170;
(iii) Hindustan General Insurance Society Ltd. now National Insurance Co. Ltd. v. Nilima Mahanta and Ors., 1990 A.C.J. 267 and
(iv) United India Insurance Co. Ltd. v. Balasubramanyam and Anr., 1990 A.C.J. 736.
4. We have thoughtfully considered the respective submissions and have perused the record.
5. The Learned Single Judge dismissed the applications for amendment filed by the claimants solely on the ground of delay and absence of explanation. Perusal of the applications for amendment filed by the claimants show that the applicants sought amendment by stating that they could not make claim for higher compensation on account of their inability to pay ad valorem court fee at the time of filing of claim petition but after having received the amount of Rs. 12,000/- by way of compensation, they were in a position to spend money on the expenses of the cases. They pleaded for grant of enhanced compensation by urging that the Tribunal has erred in applying the multiplier of 10. In support of this plea, the claimants relied on the decision of this Court in Mrs. Sunanda Modgil v. Pepsu Road Transport Corporation, A.I.R. 1983 P&H 370. The learned Single Judge dismissed the applications solely on the ground that the same are balated. He noted that law relating to payment of ad valorem court fee had been amended w.e.f. December 18, 1984 but the applications were filed in November 1985 without explanation the delay. He also observed that time gap of two months between filing of cross objections dated 28.9.1985 and the applications for amendment dated November 13, 1985 has not been explained.
6. In our opinion, the reasons assigned by the learned Single Judge for declining the prayer of the claimants for amendment of the claim petitions are per se erroneous and against law declared by the Apex Court. In Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, A.I.R. 1969 S.C. 1267, the Apex Court laid down the following principles, which in our opinion, must guide every Court while dealing with the application for amendment of pleadings;-
“Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side………………………….
……Held that the application could not be refused on the ground that there was no averment therein that the misdescription was on account of a bona fide mistake, and on that account the suit must fail. There is no rule that unless in an application for amendment of the plaint it is expressly averred that the error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint. The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations.”
7. In Ganesh Trading Co. v. Moji Ram, A.I.R. 1978 S.C. 484, their Lordships of the Supreme Court held as under:-
“Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleading in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take.
8. In Harcharan v. State of Haryana, A.I.R. 1983 S.C. 43, the Supreme Court reversed the judgment of this Court declining the appellant’s prayers for amendment of the memorandum of appeal. The facts of that case show that the appellant had sought reference under Section 18 of the Land Acquisition Act for enhancement of the award passed by the Land Acquisition Collector. The learned District Judge enhanced the compensation in respect of some petitioners and confirmed rest of the award. Against the decision of reference Court, the appellants filed regular first appeal in the High Court. During the pendency of the appeal they moved an application under Order VI, Rule 17 read with Order XLT, Rule 33 and Section 151 C.P.C. for amendment of the memorandum of appeal seeking higher compensation on the allegation that the acquired land had the potentialities of a building site. The High Court rejected the application only on the ground that it was filed after a gap of six years from the date of filing of regular first appeal. Their Lordships relied on the observations made in an earlier decision of the Apex court in Ganesh Trading Company v. Moji Ram (supra) and held that even though it would not ordinarily interfere with the inter locutory order passed by the High Court, interference in the High Court’s order in that case was necessary in order to prevent failure of justice. Accordingly, the appeal was allowed and amendment sought by the appellant was granted with liberty to the respondents to raise any contention permissible in law.
9. In Nanduri Yogananda Lakshminarasimhachari and Ors. v. Sri Agastheswaraswamivaru (supra), their Lordships upheld the order of the High Court granting leave for amendment of the pleadings at the appellate stage whereby the applicants sought addition of a new prayer in the plaint.
10. If we examine the impugned judgment in the light of the principles laid down by the Supreme Court, there is little difficulty in holding that the rejection of appellants plea for amendment of claim petitions on the ground of delay and also on the ground that they could sue as indigent persons is ex facie erroneous. The delay in the filing of applications for amendment is not shown to have caused any prejudice to the opposite side. The fact that the claimants were not having sufficient means to lodge claims for award of larger compensation was not denied by the opposite party. This, in our opinion, should have been sufficient to overlook the delay in the filing of amendment applications. The failure of the appellants to sue as indigent persons cannot be used as a stick to beat them because this must have been due to the lack of proper legal advice and that, in our considered view, cannot be a legitimate ground to decline the prayer for amendment.
11. The argument of Shri Manmohan Singh that question relating to payment of enhanced compensation cannot be allowed to be raised in the cross objections deserves to be examined in the light of provisions contained in Order XLT, Rules 22 and 33 which are extracted below :-
“Order XLT: Appeals from Original Decrees:
Rule 22.
Upon hearing respondent may object to decree as if he had preferred separate appeal.-
(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 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 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 this rule, file cross-objection in respect of the decree in so far as it is based on that findings notwithstanding that by reason of the decision of the Court on any other findings which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.
(2) Form of objection and provisions applicable thereto.- Such cross-objection shall be in the form of a memorandum, and the provisions of Rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.
(3) Unless the respondent files with the objection a written acknowledgement from the party who may 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.
Rule 33:
Power of Court of Appeal- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.”
12. Though the unamended provisions of Order XLI, Rule 22 have been interpreted by various High Courts, it is not necessary to refer to the judgments of different High Courts except that of the Full Bench of Madras High Court in Vadlamudi Venkatesarlu and Anr. v. Ravipati Ramamma and Anr., A.I.R. 1950 Madras 379, which has been approved by the Constitution Bench of the Apex Court in Panna Lal v. State of Bombay and Ors., A.I.R. 1963 S.C. 1516. In its judgment the Full Bench of the Madras High Court, after review of case law on the subject, laid down the following proposition: –
“An objection by a respondent under Order 41, Rule 22 should, as a general rule, be primarily against the appellant. In exceptional cases. It may incidentally be also directed against other respondents. Order 41, Rule 22 does not enable one respondent to prefer objections against another respondent when the objection sought to be taken is one in which the appellants are in no way interested.”
13. Their Lordships of the Supreme Court approved the above extracted proposition in Panna Lal’s case (supra) and held as under:
“In our opinion, the view that has now been accepted by all the High Courts that Order 41, Rule 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being re-opened between the objecting respondent and other respondents, that an objection under Order 41, Rule 22 can be directed against the other respondents, is correct. Whatever, may have been the position under the old Section 561, the use of the word “cross-objection” in O.41, R.22 expresses unmistakably the intention of the legislature that the objection has to be directed against the appellant. A. Rajamanner, C.J. said in I.L.R. 1950 Mad. 874 : (A.I.R. 1950 Mad. 379). (F.B.):
“The legislature by describing the objection which could be taken by the respondent as a “cross-objection” must had deliberately adopted the view of the other High Courts. One cannot treat an objection by a respondent in which the appellant has no interest as a cross-objection. The appeal is by the appellant against a respondent. The cross-objection must be an objection by a respondent against the appellant.
We think, with respect, that these observations put the matter clearly and correctly. That the legislature also wanted to give effect to the views held by the different High Courts that in exceptional cases as mentioned above an objection can be preferred by a respondent against a co-respondent is indicated by the substitution of the word “appellant” in the third, paragraph by the words “the party who may be affected by such objection.”
14. In the same judgment their Lordships of the Supreme Court interpreted order 41, Rule 13 and held as under :-
“Even a bare reading of Order 41, Rule 33 is sufficient to convince any one that the wide wording, was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents, as “the case may require”. In the present case, if there was no impediment in law the High Court could, therefore, though allowing the appeal of the State by dismissing the plaintiffs suit against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the section make this position abundantly clear the illustration put the position beyond the argument.”
15. In Koksingh v. Smt. Deokabai, A.I.R. 1976 S.C. 634, the Apex Court held that in exercise of power of Order XII, Rule 33, the appellate Court can pass any decree which should have been passed by the Court below.
16. In Mahant Dhangir and Anr. v. Shri Madan Mohan and Ors., A.I.R. 1988 S.C. 54, their Lordships again interpreted order XLI, Rule 22 and 33 and held as under :-
“Generally, the cross-objection could be urged against the appellant. It is only by way of exception of this general rule that one respondent may urge objection as against the other respondent. The type of such exceptional cases are also very much limited. For instance, when the appeal by some of the parties cannot effectively be disposed of without opening of the matter as between the respondents inter se. Or in a case where the objections are common as against the appellant and co-respondent. The Court in such cases would entertain cross-objection against the co-respondent………………Rule 22 and R.33 are not mutually exclusive. They are closely related with each other. If objection cannot be urged under Rule 22 against co-respondent. Rule 33 could take over and come to the rescue of the objector. The sweep of the power under R.33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case may require the words “as the case may require” used in R.33 of O.41 have been put in wide terms to enable the Appellate Court to pass any order or decree to meet the ends of justice. The only constraint on the power are these: That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of the judgment of the lower court. If these two requirements are there, the Appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal”.
17. In National Insurance Company, Baroda v. Diwaliben and Ors., A.I.R. 1982 Gujarat 145, S.B. Majmudar, as his Lordship then was, dealt with a case which is similar to the case in hand and upheld the cross objections filed by the respondents against co-respondents. The relevant portion of that decision is extracted below: –
“In a motor vehicle accident two claimants claimed Rs. 30,000/- and Rs. 15,000/- respectively by filing two claim petitions from all concerned opponents viz. driver of the truck, owner of the truck and the insurance company. The insurance company was joined as an opponent from the very beginning to answer the full claim of the claimants. Instead of granting full claim of the claimants in both the petitions, the Tribunal assessed damages at lower figures in both the claim petitions and assessed the amounts payable by all the opponents. The insurance company appealed praying for exonerating it from total liability from the claim of the claimants. On the question of maintainability of the cross-objections filed by claimants for enhancement of damages: from the concerned parties liable to make good their claims for damages, xxxxxxxxxxxxxxxxxxThe present case squarely came within the exception to the general rule that normally no cross-objections can be levelled by one respondent against other co-respondents and it must be held that cross-objections in the present case as levelled against the appellant and the co-respondents are maintainable so that the cross-objections against the appellant can be fully and effectively adjudicated upon. This is so because if that course, is not adopted, an impossible situation would emerge. On the one hand, the claimants would be having a statutory right of cross-objections against the appellant-insurance company as provided by express provisions of Order 41, Rule 22 C.P.C. and on the other hand, the Court will feel helpless in giving any relief to the cross-objecting respondents against the appellant insurance Company by holding that no relief could be given to them because granting of relief will require reopening of the question which is intermixed with the liability of the other respondents.”
18. In view of these decisions it must be held that cross-objections filed by the appellants should have been entertained by the learned Single Judge because their claims were intermixed with the liability of the Insurance Company and in any case the learned Single Judge should have invoked provisions of Order XLI, Rule 33 for entertaining the claim made by the appellants for award of higher compensation and also for grant of higher interest.
19. Now a few words about the decision relied upon by the learned counsel for the respondents.
20. In National Insurance Co. Ltd. v. H.N. Rama Prasad and Ors., 1985 A.C.J. 864, a Division Bench of Karnataka High Court refused to entertain the cross-objections of the owner in appeal filed by the insurer.
21. In Labh Singh v. Sunehri Devi and Ors.,1988 A.C.J. 170, a learned Single Judge of this Court held that cross-objections filed by the driver of the vehicle cannot be entertained against the claimants when the owner’s appeal against them has been dismissed.
22. Similar view has been expressed in Hindustan General Insurance Society Ltd., now National Insurance Co. Ltd. v. Nilima Mahanta and Ors., 1990 A.C.J. 267 and United India Insurance Co. Ltd. v. Balasubramanayam and Anr., 1990 A.C.J. 736.
We have carefully analysed the judgments relied upon by the learned counsel for the respondents and find that none of them has got any bearing on the facts of these cases. Therefore, relief cannot be denied to the appellants-claimants on the basis of these judgments.
For the reasons mentioned above, the appeals are allowed. The impugned judgments are set aside and the cases remanded back to the Single Bench for fresh adjudication in accordance with law.