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Mohan Ganda and ors. Vs. Driver Garasiya Keshubhai Shivubha and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 195, 196, 197 of 1969 and 1018 of 1970
Judge
Reported inAIR1972Guj286; (1972)0GLR744
ActsBombay Court-Fees Act, 1959 - Sections 43(1)
AppellantMohan Ganda and ors.
RespondentDriver Garasiya Keshubhai Shivubha and ors.
Appellant Advocate P.M. Raval, Adv.
Respondent Advocate B.J. Shelat, Asstt. Govt. Pleader,; P.V. Nanavati,; B.R.
Cases ReferredSchedule I. In Shardaben v. M.I.Pandya
Excerpt:
.....of bombay court-fees act, 1959, section 110-a of motor vehicles act, 1939 and rules 292 and 294 of bombay motor vehicles rules, 1959 - petitioners filed applications under provisions of section 110-a - compromise between parties when matter before tribunal - application made for refund of court-fees as application compromised - tribunal held that under section 43 refund ordered if court-fees paid on plaint - also since petitioners made application so it was not possible to refund court-fees - rule 294 provides that claims tribunal may exercise all powers of civil court which also include power to refund court-fees paid on application - held, tribunal not justified in holding that court-fees paid on application under rule 292 could not be refunded under section 43 (1). - - under rule..........refund of any part of the said fees could not be ordered to be applicant. in each of these special civil applications, the petitioner concerned has challenged the validity and legality of the two orders, one for the payment of the deficit court-fee and the other declining to order refund of the court-fee in the light of the compromise orders.2. since all these four special civil applications involve the same point of law, i will dispose of them by this common judgment.3. mr. raval, for the petitioner, did not press the question of interpretation of rule 292 and hence he has not pressed the challenge to the order, annexure b in each of the four special civil applications asking the applicant in each of the four cases to pay the balance of the ad valorem court-fees payable under the.....
Judgment:
ORDER

1. The respondents in all the four applications are the same. Each of these four petitioners had filed applications under the provisions of S.110-A of the Motor Vehicles Act, 1939 (hereinafter claiming amounts as and by way of compensation on account of the injury received by him or her in the course of an accident or by the deceased Bai Monghi Kala. The accident took place on the road from Surendranagar to Rajkot near Morvi Bridge. Respondent No.1 in each of these petitioners was the driver of the truck which was involved in the accident; respondent No.2 is the owner of the truck and respondent No.3 is the Insurance Company with whom the appropriate insurance was taken out by the owner. Different amount were claimed in each of these petitions and ultimately a compromise was entered into and regular compromise pursises were filed in each of the four applications before the Motor Accidents Claims Tribunal, Surendranagar. The learned district Judge, as such Tribunal, recorded the compromise in each of the four matters and thereafter the question arose of the payment of court-fees. Under Rule 292 of the Bombay Motor Vehicles rules, 1959 (hereinafter referred to as the Rules) as it then stood, an application for compensation before the Motor Accidents Claims Tribunal had to be accompanied by an amount equal to half of ad valorem fee leviable on the amount at which the claim is valued in the application according to the scale prescribed under Article 1 of Schedule I to the Bombay Court-Fees Act, 1959; provided that if the person making an application succeeds, he shall be liable to make good the deficit, if shall be liable to make good the deficit, if any, between the full ad valorem fee payable on the amount at which the claim is valued in the application according to the said scale and the fee already paid by him. I am informed that Rule 292 has been subsequently amended but I am not concerned with the amended of Rule 292. The learned District Judge as the Tribunal held that in each of the four cases, the remaining one-half of the ad valorem fee on the application should be paid by each of the four applicants. He passed this order after hearing the learned Advocates for the parties. Thereafter an application was made for the refund of the court-fees as the application had been compromised. The learned District Judge as the Tribunal held that under Section 43 of the Bombay Court-Fees Act, 1959, refund could be ordered only in respect of court-fees paid by the plaintiff on the plaint and since this was an application, he held that it was not possible to extent the application of Section 43 of the Court-Fees Act to cover refund of the fee paid under Rule 292 in respect of the application under the Act and hence the refund of any part of the said fees could not be ordered to be applicant. In each of these Special Civil Applications, the petitioner concerned has challenged the validity and legality of the two orders, one for the payment of the deficit court-fee and the other declining to order refund of the court-fee in the light of the compromise orders.

2. Since all these four special Civil Applications involve the same point of law, I will dispose of them by this common judgment.

3. Mr. Raval, for the petitioner, did not press the question of interpretation of Rule 292 and hence he has not pressed the challenge to the order, Annexure B in each of the four Special Civil Applications asking the applicant in each of the four cases to pay the balance of the ad valorem court-fees payable under the proviso to Rule 292. The question that has been agitated before me is confined to Section 43 of the Bombay Court-Fees Act, 1959. Section 43 of the Bombay Court-Fees Act, 1959, provides--

'43(1). When any suit in a court is settled by agreement of parties before any evidence is recorded, or any appeal or cross-objection is settled by agreement of parties before it is called on for effective hearing by the court, half the amount of the fee paid by the plaintiff, appellant or respondent on plaint, appeal or cross-objection, as the case may be, shall be repaid to him by the court.'

The proviso to sub-section (1) of section 43 is not material for the purposes of this judgment. We are again not concerned with any Notification issued by the State Government under the powers conferred upon by Section 43(2). The main question that I have to consider is whether the compromise in the instant case was 'in any suit in a Court' to use the language of Section 43. The word 'suit' has not been defined but in view of Rule 293, it is clear that Rule 292 treats an application for compensation under the provisions of Section 110-A of the Motor Vehicles Act as a plaint in a suit because Rule 292 requires that an amount equal to one-half of ad valorem fee leviable on the amount at which the claim is valued in the application according to the scale prescribed under Article 1 of Schedule I of the Bombay Court-Fees Act, 1959 shall be paid at the time when the application is made and when one turns to Art. 1 of Schedule I of the Bombay Court-Fees Act, 1959, one finds that that article speaks of a plaint, or memorandum, of appeal or of cross-objections presented to any Civil or Revenue Court. Obviously an application for compensation under the Bombay Court-Fees Act is neither a memorandum of appeal nor of cross-objections and, therefore, such an application is equated with the plaint referred to in Article 1 of Schedule I. In Shardaben v. M.I.Pandya, 12 Guj LR 97 = (AIR 1971 Guj 151), my learned brother J.B. Mehta, J. has pointed out:--

'It is obvious from the Scheme of the Motor Vehicles Act, 1939 that the jurisdiction of the Civil Courts is ousted and the Claims Tribunal is constituted under the Act to discharge the duties, which would have otherwise fallen on an ordinary civil Court of the land. In view of Section 110 of the Act, the Tribunal possesses all the attributes of a Court and it has to decide the claim on the basis of legal evidence in accordance with law by a definitive final judgment. The Tribunal is for all intends and purposes a civil Court discharging the same function and duties in the same manner as a civil Court is expected to do. Even otherwise rule 294 of the Motor Vehicle Rules itself makes it clear that all the powers of a Civil Court are conferred on the Claims Tribunal.'

Under Section 111-A of the Act power has been conferred on the State Government to make rules for the purpose of carrying into effect the provisions of Sections 110 to 110-E and in particular said rules may provide inter alia for the form of application for claims for compensation, particulars of the claim, fees, if any, to be paid in respect of such applications. The Rules may also provide for the procedure to be followed by the Claims Tribunal and the powers in a Civil Court which may be exercised by a Claims Tribunal. Acting under Section 111-A, the Bombay Government has framed the Motor Vehicles Rules, 1959 and in their applicability to the State of Gujarat it has been provided by rule 294 that the Claims Tribunal may exercise all the powers of a Civil Court save in so far as they are not consistent with the provisions of the Motor Vehicles Act, 1939 and the Rules made thereunder. Therefore, though it is called a Tribunal the claims Tribunal has, in view of Section 111-A read with rule 294 all the powers of Civil Court and can exercised all the powers of Civil Court. Therefore, when Section 43 of the Bombay Court-Fees Act enables the Civil Court to direct a refund of the court-fees paid by the plaintiff on the plaint, the Claims Tribunal exercising the powers of Civil Court can also direct refund of the court-fees paid on the application in accordance with Rule 292. To my mind reading Section 111-A, under which the State Government is empowered to make rules and Rules 292 and 294, it is clear that the Claims Tribunal under the Motor Vehicles Act exercise all the powers of a Civil Court, which would also include power of refund of the court-fees and that court-fees paid on the application under Rule 292 stand on the same footing as the court-fees paid on a plaint under Article 1 of Schedule I of the Bombay court-Fees Act. Under these circumstances, with respect to him, the learned District Judge, functioning as the Motor Claims Tribunal, Surendranagar, was in error when he held that the court-fees paid on an application under Rule 292 could not be refunded under the provisions of Section 43(1) of the Bombay Court-Fees Act. I have heard the learned Assistant Government Pleader on these applications and in my view this is the only interpretation which is possible looking to the historical background of the creation of these Tribunals and looking to the provisions of Section 110-A of the Motor Vehicles Act and rules 292 and 294 of the Bombay Motor Vehicles Rules, 1959.

4. Under these circumstances, each of these Special Applications is allowed and it is directed that refund of court-fees in accordance with S. 43(1) of the Bombay Court-Fees Act be allowed in each of the four Special Civil Applications. Rule is made absolute accordingly. There will be no order as to costs.

5. Petition allowed.


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