JUDGMENT
S.C. Pandey, J.
1. This misc. civil case arises out of the order dated 16.11.1995, passed by this court in Misc. Appeal No. 35 of 1994. The Misc. Appeal No. 35 of 1994 was filed by the owners and the driver of the vehicle against the award dated 30.11.1993 passed by Motor Accidents Claims Tribunal, Panna, in Claim Case No. 11 of 1990.
2. It appears from the order sheet dated 26.8.1994 that Misc. Appeal No. 35 of 1994 was admitted only on the ground “as to whether the insurance company, respondent No. 8 is under the terms of the insurance agreement liable for the entire amount of award?” Notices were issued on LA. Nos. 421 and 422 of 1994 for permitting the appellants to pursue the appeal without depositing any amount under award, as the respondent No. 8 had deposited Rs. 25,000. Subsequently, by order dated 14.3.1995 this court dismissed the LA. No. 421 of 1994 filed by the counsel for the appellants, Mr. N.K. Shukla, Advocate and directed that the appellants shall deposit 50 per cent of the amount of award within one month from the date of order, failing which the appeal filed by them shall be dismissed. Thereafter, by order dated 16.11.1995 the appeal was dismissed as 50 per cent amount of the award was not deposited within one month from the date of order, i.e., 14.3.1995. It appears that the appellants in M.A. No. 35 of 1994, then filed an application to review the order dated 14.3.1995. That too was dismissed by this court by order dated 12.12.1995.
3. It appears from the record of the case that the respondents had filed a cross-objection on 12.12.94 against the impugned award in the appeal. This cross-objection was on record of the Misc. Appeal No. 35 of 1994 aforesaid. When the main appeal was dismissed on 16.11.95 on the ground of non-compliance of the order dated 14.3.1995, there was no order passed on the cross-objection filed by the applicants in this case. It appears that the cross-objection was not brought to the notice of this court on that date.
4. In view of the aforesaid facts, relying on Order 41, Rule 22 (4) of the Code of Civil Procedure, the applicants filed this misc. civil case pointing out that the cross-objection could not have been dismissed as the Misc. Civil Appeal No. 35 of 1994 was not dismissed on merits.
5. Order 41, Rule 22(4) of the Code of Civil Procedure may be reproduced hereinafter for determining if the cross-objection can be decided by this court on merits. Order 41, Rule 22(4) of the Code of Civil Procedure, reads as follows:
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.
It is clear from the language of Order 41, Rule 22 (4) of the Code of Civil Procedure that when an appeal is withdrawn or dismissed for default, then the cross-objection shall not be deemed to be dismissed along with the main appeal. Under proviso (1) to Section 173(1) of the Motor Vehicles Act, 1988, the person, filing an appeal, is required to deposit 50 per cent of amount of award or Rs. 25,000 whichever is less in the manner directed by the High Court. It is provided that otherwise, the appeal shall not be entertained by the High Court. Therefore, the appellants, in Misc. Appeal No. 35 of 1994 were directed to deposit 50 per cent of the amount of award within one month from 14.3.1995, failing which the appeal was to be dismissed. The order dated 14.3.1995 itself provided that if the amount is not deposited within the stipulated time of one month from the date of order, the appeal shall stand dismissed. Therefore, on 16.11.1995 this court held that the appeal stood dismissed automatically.
6. It is clear from the orders dated 14.3.1995 that the appellants, in Misc. Appeal No. 35 of 1994 were granted one month’s time to deposit 50 per cent of the amount of award with a view that the appeal could be entertained as per the first proviso to Section 173(1) of Motor Vehicles Act, 1988. Non-compliance of the afore-said order by the appellants resulted in dismissal of appeal which was confirmed by order dated 16.11.1995. Since the appellants in Misc. Appeal No. 35 of 1994 were given time to deposit 50 per cent of the amount of award, the non-compliance of that order would be dismissal in default within the meaning of Order 41, Rule 22(4) of the Code of Civil Procedure. It may be noticed that this court rejected the application of the appellants that they were not required to deposit any money for the reason the respondent No. 8 had already deposited Rs. 25,000 earlier. Right or wrong, this court granted one month’s time to the appellants to deposit 50 per cent of the amount of award in the appeal which was admitted for hearing and passed an additional order that in case of non-compliance in depositing the amount, the appeal shall be deemed to be dismissed. It was the order of the court which was not complied with by the appellants. Therefore, the dismissal of the appeal would be on the ground of default within the meaning of Order 41, Rule 22(4) of the Code of Civil Procedure. In the case of Sonibai v. Bhavarsingh, AIR 1963 MP 161, a Division Bench of this court interpreted the word ‘default’ under Order 41, Rule 22(4) of the Code of Civil Procedure to include default either of appearance or doing something which would be necessary for enabling the court to hear the appeal. The Division Bench further observed in para (4), page 161 that:
…Thus, there is a duty cast upon the appellate court to hear and determine cross-objection even when the appeal is withdrawn or its dismissal for default. This duty does not depend upon any action on the part of the respondent to press the cross-objection at the time of either its withdrawal or its dismissal for default. The duty continues until cross-objections are heard and determined…
In view of this matter, this court heard the parties on cross-objection in the main appeal and the order passed hereinafter in this M.C.C. shall be treated as decision of this court on the cross-objection filed by the applicants in main appeal, i.e., Misc. Appeal No. 35 of 1994.
7. In the main award, liability of insurance company was limited to Rs. 50,000 out of the award of Rs. 1,58,000 passed in favour of the claimants, who are the applicants in this case. The accident occurred in between 3/4.7.1986 by the motor truck of the non-applicant No. 1, Ram Swamp Pathak. As a result of the accident, Mohd. Mubin had died. So far as the liability to third party in respect of bodily injury is concerned, the company’s liability provided is limited to such amount as is necessary to meet the requirements of Motor Vehicles Act. Since the accident occurred in July, 1986, the Motor Vehicles Act, 1939 would govern the case.
8. It is not disputed that the truck in question in which Mohd. Mubin was travelling, was involved in the accident, and, therefore, Section 95 of the Motor Vehicles Act, 1939 would apply. It has been provided in Section 95(2)(a) of Motor Vehicles Act, 1939 that the limit of liability would be Rs. 1,50,000 in all, including the liabilities whatsoever under the Workmen’s Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (excluding the driver), who are carried in the vehicle. It is not in dispute that Mohd. Mubin was travelling in the truck on 4.7.86. The truck was carrying 110 quintals of potatoes belonging to Azad Aaloo Company, Bans Mandi, Kanpur, of which the deceased was a partner. It is the evidence on record that his father was also the partner of that firm. The effect of evidence is that the deceased was accompanying the goods loaded in the truck for delivery of those goods at Jabalpur. In these circumstances, he died in the accident. There is no dispute about the death of the deceased in the accident. Under such circumstances Section 95(2)(a) of Motor Vehicles Act, 1939, would be applicable. The limit of liability was increased from Rs. 50,000 to Rs. 1,50,000 by amendment in the Act with effect from 1.10.1982. Therefore, it is difficult to understand why the liability of the insurance company was held to be limited to Rs. 50,000 only by the Claims Tribunal. The language of Section 95(2)(a) would cover every kind of liability of the truck owner excluding that specifically mentioned in that section. This is very clear from the word ’employees’.
9. The next contention of the learned counsel for the applicants (the respondents in appeal), in support of the cross-objection is that quantum of Rs. 1,58,000 is much less and the multiplier used by the Claims Tribunal should have been more than 14.
10. It appears to this court that the Claims Tribunal rightly concluded that the dependency would be Rs. 1,000 per month. Therefore, it would come to Rs. 12,000 per year. The only question is whether applying a multiplier of 14 can be said to be wrong in such a way that entitles this court to call for interference in the award passed by the Claims Tribunal. It is true that at the time of death Mubin was 18 years old and, therefore, the Claims Tribunal could have applied a higher multiplier, but the application of multiplier is entirely the discretion of the Claims Tribunal. This court cannot interfere with the use of multipliers unless it comes to the conclusion that it would result in unjust determination of quantum of damages. There may be variation in multipliers from court to court. It is well established that in an appeal for enhancement of quantum of damages, the appellate court shall not interfere unless the compensation awarded is too low or too high. In this case, the grant of compensation is not too low so as to call for interference of this court.
11. As a result of the aforesaid discussion, this cross-objection is allowed partly. Accordingly, it is ordered that the insurance company, the non-applicant No. 5 (which is shown as the respondent No. 8 in M.A. No. 35 of 1994) shall be jointly and severally liable to pay the compensation to the extent of Rs. 1,50,000 (Rupees one lakh fifty thousand) to the applicants (respondent Nos. 1 to 5 in M.A. No. 35 of 1994) along with the non-applicant Nos. 1 and 2 (appellants in M.A. No. 35 of 1994) and non-applicant Nos. 3 and 4 (respondent Nos. 6 and 7 in M.A. No. 35 of 1994), out of the total amount of award passed by the Claims Tribunal. The rest of the amount of award shall be payable to the applicants, by the non-applicant Nos. 1 and 2 (the appellants in M.A. No. 35 of 1994) and non-applicant Nos. 3 and 4 (the respondent Nos. 6 and 7 in M.A. No. 35 of 1994), jointly and severally, along with the interest as awarded by the Claims Tribunal. The impugned award dated 30.11.93, passed by the Claims Tribunal is hereby modified accordingly. There shall be no order as to costs.