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The State of Gujarat Vs. Thakar Lalshanker Umiyashanker and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 375 of 1974
Judge
Reported inAIR1977Guj170; (1977)0GLR420
ActsBombay Court-fees Act, 1959 - Sections 6 and 43; Bombay Motor Vehicles Rules, 1959 - Rules 291 and 292(2); Motor Vehicles Act, 1939 - Sections 110-A
AppellantThe State of Gujarat
RespondentThakar Lalshanker Umiyashanker and ors.
Advocates: R.M. Christie, Asst. Govt. Pleader
Cases ReferredMohan Ganda v. G. K. Shivubha
Excerpt:
.....sections 6 and 43 of bombay court-fees act, 1959 - dispute related to refund of excessive court-fees paid by claimant upon application filed under section 110-a - section 43 applicable to application filed for compensation under act of 1939 - as per section 43 claimant entitled to claim refund of only half of amount of court-fees paid by him upon application filed under section 110-a. - - 1 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 any, between the full ad valorem fee payable on the amount at which the claim is awarded by the tribunal according to the scale prescribed under art. we fail to understand as to why the position should be different in the present case merely because,..........the learned tribunal held that only the amount of rs. 475/- which was half the amount of the court-fees paid by the claimants should be refunded to them. being aggrieved by the above order, the state has come in revision to this court. when the matter came up for hearing before a. d. desai, j. he took the view am' the matter-involved questions of general importance and hence, he referred the matter to a larger bench. this is how the matter has come up for hearing before us.3. the provisions as to payment of court-fees in respect of applications under s. 110-a of the motor vehicles act, 1939 are contained in r. 292 of the rules which reads as under:'(1) an application for compensation under r. 291, where a aim is for an amount up to rs. 9,999/- shall be accompanied by an amount of ten.....
Judgment:

C.V. Rane, J.

1. This application -in revision is directed against the order passed by the learned Motor Accident Claims Tribunal, Surendranagar, hereinafter referred to as the 'Tribunal', on an application for refund of court-fees made in M. A. C. T. Case No. 18 of 1971 on 15th Sept., 1973.

2. The petitioners in the above ease had made an application for claiming compensation to the extent of Rs. 30,000/-under S. 110-A of the Motor Vehicles Act, 1939. In accordance with the provisions of R. 292 of the Bombay Motor Vehicles Rules, 1959, hereinafter referred to as the Rules, an amount of Rs. 950/- was paid as court-fees. The matter was, however, compromised for Rs. 7,000/-. The claimants, therefore, made an application for refund of Rs. 695/- out of the amount of Rs. 950/- paid by them towards the court-fees. The learned Tribunal held that only the amount of Rs. 475/- which was half the amount of the court-fees paid by the claimants should be refunded to them. Being aggrieved by the above order, the State has come in revision to this court. When the matter came up for hearing before A. D. Desai, J. he took the view am' the matter-involved questions of general importance and hence, he referred the matter to a larger bench. This is how the matter has come up for hearing before us.

3. The provisions as to payment of court-fees in respect of applications under S. 110-A of the Motor Vehicles Act, 1939 are contained in R. 292 of the Rules which reads as under:

'(1) An application for compensation under R. 291, where a aim is for an amount up to Rs. 9,999/- shall be accompanied by an amount of ten rupees court fees stamps :

Provided that if the person making the application succeeds, he shall be liable to pay by way of fee an amount equal to the full ad valorem fee leviable on the amount at which the claim is awarded by the Tribunal according to the scale prescribed under Art. I of Sch. I to the Bombay Court-fees Act, 1959, less the amount of the fee already Paid by him. (2) An application for compensation under R. 291 in respect of a claim of an amount of Rs. 10,000/- and above shall be accompanied by an amount in court-fee stamps equal to one-half of the ad valorem fee leviable on the amount at which the claim is valued in the application according to the scale prescribed under Art. I of Sch. 1 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 any, between the full ad valorem fee payable on the amount at which the claim is awarded by the Tribunal according to the scale prescribed under Art. 1 of Sch. 1 to the Bombay Court-fees Act, 1959, and the fee already paid by them.'

As the matter was compromised, the claimants claimed refund of half the amount of the court-fees paid by them on the basis of the provisions of S. 43(1) of the Bombay Court-fees Act, 1959 which provides

' (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 the plaint, appeal or cross objection, as the case may be, shall be repaid to him by the court.

Provided that no such fee shall be repaid if the amount of fee paid does not exceed five rupee or the claim for repayment is not made within one year from the date on which the suit, appeal or cross-objection was settled by agreement'.

Relying on the decision of Divan, J. as he then was, in the case of Mohan Ganda v. G. K. Shivubha, 13 Gui Lit 744: (AIR 1972 Guj 286), the learned Tribunal has held that, S. 43 of the Bombay Court-fees Act was applicable even to the application for compensation under the Motor Vehicles Act. The finding of the learned Tribunal on the above point is not challenged before us. We will, therefore, proceed on the basis that, the claimants are entitled to claim refund of half the amount of the court-fees as provided in S. 43 of the Bombay Court-fees Act It is argued by the learned Assistant Government Pleader that according to subr.292 of the Rules read with the proviso to that sub-rule, the claimants would have been required to pay only Rs. 510/- as court-fees in view of the fact that the claim was awarded only to the extent of Rs. 7,000/-. according to the relevant provisions of the Court-fees Act, the party concerned will have to pay court-fees of the value of Rs. 510/- for a claim of Rs. 7,000/- awarded by the Tribunal. It is submitted by the learned Assistant Government Pleader that, on the basis of S. 43 of the Bombay Court-fees Act, they can claim the refund of half the above amount which comes to Rupees 255/-. The learned Tribunal has, how ever, taken the view that the claimants are entitled to claim refund of half the amount of the court-fees actually paid by Them. Now, according to S. 43(1) -1 the Bombay Court-fees Act, when a suit is settled by agreement of parties before any evidence is recorded, half the amount of the fee Paid by the plaintiff shall be repaid to him by the court. It is not disputed that for the purpose of S. 43(1) of the Court-fees Act, the claimants are to be treated as plaintiffs. Now, according to R. 292 (2) of the Rules, 'an application for compensation under R. 291 in respect of a claim of an -amount of Rs. 10,000/- and above shall be accompanied by an amount in court-fees stamps equal to one half of the ad valorem fee leviable on the amount at which the claim is valued in the application according to the scale prescribed under Art. 1 of Sch. 1 to the Bombay Court-fees Act, 959'. But for the above concession given to an applicant under the Rules, he would have been required to pay full court-fees as prescribed by the Bombay Court-fees Act, While deciding the question as to whether only half the amount of the court-fees actually paid by the claimant or only half the amount of the court-fees which he was required to pay on the basis of the amount at which the claim is awarded by the Tribunal should be refunded to him it is necessary to take into consideration as to what would be the Position in suits.

4. It is not disputed that in a suit for recovery of the amount of Rs. 30,000/-the plaintiff would have been required to pay a court-fee of the value of Rs. 1,900/-. If that suit is settled by agreement of parties before any evidence is recorded the plaintiff would be entitled to claim the refund of half the amount of the court-fees actually paid by him irrespective of the amount for which the suit was settled. This would mean that the amount of Rs. 950/- will have to be repaid to the plaintiff as contemplated by S. 43(1) of the Bombay Court-fees Act. There is no reason as to why on the basis of the above reasoning, half the amount of the court-fees actually paid by the claimants in the instant case should not be refunded to them. Merely because, according to the -proviso to sub-r. (2) of R. 292 of the Rules, Rs. 510/- were payable as court-fees on the basis of the amount of the award, S. 43 of the Bombay Court-fees Act cannot be interpreted to mean that only half the amount of the court-fees which the claimants were liable to pay should be refunded to -them. It is true that according to the proviso to sub-r. (2) of R. 292 of the Rules, an amount of Rs. 510/- can be levied as court fees. But, as observed above, the claimants have actually -paid Rs. 950/- as court-fees on the basis of the specific provision to that effect made in sub-r. (2) of R. 292 of the Rules. The circumstance that according to sub-r. (2) of R. 292 of the Rules, the claimants have to pay court-fee stamp equal to one-half of the ad valorem fee leviable on the amount at which the claim is valued in the application would not come in the way of their claiming the refund of half the amount of court-fees actually paid by them, on the basis of S. 43 of the Bombay Court fees Act for the simple reason that, according to S. 43, half the amount of the fee actually Paid by the party concerned is to be refunded to him. In this connection, it may be pointed out that, according, to S. 6 of the Bombay Court-fees Act, in suits of certain categories, courtfees varying from 1/12th to 1/2 of ad valorem fees are prescribed and in spite of that position, the plaintiff would be entitled to claim the refund of 1/2 of court-fees actually Paid by him in the circumstances mentioned in S. 43 of the Bombay Court-fees Act. Merely because, according to sub-r. (2) of R. 292 of the Rules, the claimants 'have to pay initially 1/2 of ad valorem fee, it cannot be said that, their case for refund of court-fees under S. 43 of the Court-fees Act should be construed in a manner different from the one in which, the cases of the plaintiffs who are required to pay court-fees varying from 1/12th to 1/2 of ad valorem court-fees in certain types of suits mentioned in S. 6 of the Court-fees Act are construed.

5. The question can also be judged from a different angle. If as a result of the compromise between the parties, an award in the amount of Rs. 13,000/- was passed, the claimants would have been required to pay Rs. 10/- more towards the court-fees as would be evident from the fact that ad valorem fee on the amount of Rs. 13,000/comes to Rs. 960/- according to Sch. 1 of the Court-fees Act and in that case, it is not disputed that, the amount of Rs. 480/- could have been refunded to the claimants in view of S. 43 of the Bombay Court-fees Act. We fail to understand as to why the position should be different in the present case merely because, the amount of the award is Rs. 7,000/- and ad valorem fee for which amount comes to Rs. 510/-. Looking to the provisions of R. 292 of the Rules in the light of the provisions of Ss. 6 and 43 of the Court-fees Act, we are of - the view that according to S. 43 of the Court-fees Act, half the amount of the court-fees actually paid by the claimants in the proceedings under S. 110-A of the Motor Vehicles Act, 1939 should be refunded to them in the circumstances mentioned in that section. This shows that the order passed by the learned Tribunal is quite according to law.

6. In the result, the revision application is dismissed. Rule discharged with no order as to costs.

7. Revision dismissed.


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