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Kishanchand Wadhumal and anr. Vs. K.M. Satwani, Motor Accident Claims Tribunal - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1975)16GLR749
AppellantKishanchand Wadhumal and anr.
RespondentK.M. Satwani, Motor Accident Claims Tribunal
Cases ReferredIn Siri Ram v. Jagan Nath A.l.R.
Excerpt:
- - therefore, on both the grounds that the claims tribunal is a court and because of these specific provisions, it is obvious that the claims tribunal's judgment has to be formally embodied in an award like civil court's decree and, therefore, the award has got to be drawn up and to that extent the tribunal was right in its view. 10,000/- and above shall be accompanied by an amount in court-fee stamps equal to one-half of the advalorem fee leviable on the amount at which the claim is valued in the application according to the scale prescribed under article i 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 any between the full advalorem fee payable on the amount at which the.....j.b. mehta, j.1. this petition has been filed by the original claimants in m.a.c.t. application before respondent no. 1 claims tribunal. the claimant's son had been knocked down by respondent no. 3, a.m.t.s. driver. the compensation which was claimed in the petition was of a sum of rs. 9999/-. the judgment of the tribunal resulted in the following order, dated january 11, 1974:the opponent shall pay to the applicants a sum of rs. 7500/- with interest from the date of application till payment at 6% per annum and costs of the application. the opponents shall bear own costs.an award shall be drawn upon the deficit court-fees being paid.' after this judgment, the claimants moved the tribunal by an application, dated april 18, 1974, requesting the tribunal to perform its duty to draw up the.....
Judgment:

J.B. Mehta, J.

1. This petition has been filed by the original claimants in M.A.C.T. Application before respondent No. 1 Claims Tribunal. The claimant's son had been knocked down by respondent No. 3, A.M.T.S. driver. The compensation which was claimed in the petition was of a sum of Rs. 9999/-. The judgment of the Tribunal resulted in the following order, dated January 11, 1974:

The opponent shall pay to the applicants a sum of Rs. 7500/- with interest from the date of application till payment at 6% per annum and costs of the application. The opponents shall bear own costs.

An award shall be drawn upon the deficit Court-fees being paid.' After this judgment, the claimants moved the Tribunal by an application, dated April 18, 1974, requesting the Tribunal to perform its duty to draw up the award and to pass suitable directions so that the amount of the award can be recovered from respondents Nos. 2 and 3, the driver and the Corporation. It was also pointed out by the claimants that as the judgment had directed respondents Nos. 2 to 3 to pay all the costs, the amount should be realised from them, as the claimant No. 1, the father was only getting a pay of Rs. 150/- per month and had no means to pay the deficit court-fee stamp of Rs. 550/- and could not arrange any loan. The Tribunal, however, refused to draw up the award or to take any step for recovery of the amount awarded on the sole ground that unless the court-fee amount was paid, no such award could be drawn up. The claimants have, therefore, filed this petition under Article 226 of the Constitution.

2. In a series of decisions of this Court, the Claims Tribunal, when it deals with such compensation matters, has been held to be a Court because the Claims Tribunal is constituted in supersession of the ordinary Courts of the land for this purpose with all the powers of the Court and it has to pronounce a definitive judgment in accordance with law, after proper evidence is led for fastening the liability on the basis of fault. After considering the provisions of the Motor Vehicles Act, as a Single Judge, I had decided this question on settled principles in Special C.A. No. 1599 of 1969 decided on July 23, 1970, and that view was approved in the decision of the Division Bench, where Patel, J. spoke for the Division Bench for both of us, in F.A. No. 280 of 1968 decided on November 15/16, 1971. Even the relevant Bombay Motor Vehicle Rules, 1959 hereinafter referred to as 'the Rules', make a clear provision in Rule 306 for a judgment of the Claims Tribunal by enacting that the Claims Tribunal in passing orders, shall record concisely in a judgment the finding on each of the issues framed and its reasons for such finding. Therefore, it is obvious that in such Motor Accident Claims proceedings which result in an award of compensation under Section HOD the Claims Tribunal has to pass a formal judgment, in accordance with which a formal award or decree has to be drawn up as required by the provisions of the Code. The Claims Tribunal, being a Court, would be governed by the provisions of the Code in that respect. That is why Rule 310 even enacts that in so far as these rules make no provision or make insufficient provisions, the Claims Tribunal shall follow the procedure laid down in the Code of Civil Procedure, 1908 for the trial of suits. It is against such an award of the Claims Tribunal under Section 110B that an appeal is provided to this Court under Section 110D. Rule 312(3) provides that the provisions of Order 41 and Order 21 in the Code shall mutatis mutandis apply to appeals preferred to the High Court under Section 110D. Therefore, there is not only a judgment and formally drawn up award against which an appeal had to be filed but the original decree or the decree in appeal could be executed by invoking the provisions under Order 21 of the Code. Even so far as the insurer is concerned, Section 96(1) has therefore provided that if after a certificate of insurance has been issued under Section 95(4) in favour of the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under Section 95(1)(b), (being a liability covered by the terms of the policy) is obtained against any person insured by the policy...the insurer shall, subject to the provisions of the section, pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured payable thereunder, as if he were the judgment-debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. Therefore, on both the grounds that the Claims Tribunal is a Court and because of these specific provisions, it is obvious that the Claims Tribunal's judgment has to be formally embodied in an award like Civil Court's decree and, therefore, the award has got to be drawn up and to that extent the Tribunal was right in its view.

3. The material question, which, however, arises is whether there is any condition precedent created by the Act or the relevant rules that no such award shall be drawn up until the deficit Court-fee is first paid up by the claimants. For this purpose, we will consider the relevant scheme of the Act and the rules. Under Section 110A(1) an application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made by the claimants specified therein to the Claims Tribunal in the prescribed form with the prescribed particulars. Under Section 110B, after receiving this application, the Claims Tribunal has to hold an enquiry into the claim after giving parties an opportunity of being heard and it has to make an award determining the amount of compensation which appears it to be just and specifying the person or persons to whom compensation shall be paid. It is further provided that in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be. Section 110C deals with the procedure and powers of the Claims Tribunal and all powers of the Civil Court as specified therein are invested in the Claims Tribunal. Section 110CC deals with interest which can be awarded from the date not earlier than from the date of the making of the claim. Section 110CCC deals with compensatory costs. Section 110D deals with appeals to this High Court. Section 110E which is material provides for recovery of money from insurer and others as arrears of land revenue. It enacts that where any money is due from any person under an award, the Claims Tribunal may, on an application made to it by the person entitled to the money, issue a certificate for the amount to the Collector and the Collector shall proceed to recover the same in the same manner as an arrear of land revenue. Section 111A enables the State Government to make rules for the purpose of carrying into effect the provisions of Sections 110 to HOE, including....

(a) the form of application foe compensation and the particulars it may contain; and the fees, if any, to be paid in respect of such applications....

Accordingly, Rule 292 has been enacted for the levy of court-fees as under:

292. Fees-(l) An application for compensation under Rule 291, where a claim is for an amount upto Rs. 9999/- shall be accompanied by an amount of ten rupees court-fee 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 advalorem fee leviable on the amount at which the claim is awarded by the Tribunal according to the scale prescribed under Article I of Schedule 1 to the Bombay Court Fees Act, 1959, less the amount of fee already paid by him.(2) An application for compensation under Rule 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 advalorem fee leviable on the amount at which the claim is valued in the application according to the scale prescribed under Article I 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 any between the full advalorem fee payable on the amount at which the claim is awarded by the Tribunal according to the scale prescribed under Article I of Schedule 1 of the Bombay Court Fees Act, 195), and the fee already paid by him.

The aforesaid Rule 292 in Clause (1) provides an initial court-fee of only Rs. 10/- where the claim is for an amount upto Rs. 9999/- while in Clause (2) if the claim is Rs. 10,000 or more, the initial court-fee amount is equal to one-half of the advalorem fee leviable on the amount at which the claim was valued in the application according to the scale prescribed under Article I of Schedule I to the Bombay Court fees Act, 1959. In both the cases by the proviso, a provision is made for recovery of additional court-fee amount, in the event that the person making the application succeeds. In cases under Clause (1) where the initial court-fees amount was Rs. 10/- it is provided that he would be liable to pay by way of court-fees an amount equal to full advalorem fee leviable on the amount at which the claim is awarded by the Tribunal according to the scale prescribed under Article I of the Schedule I to the Bombay Court fees Act, 1959, less the amount of fee already by him; while in Clause (2) where he initially paid half the amount as on his claim, it is provided that if the person making the application succeeds, he shall be liable to make good deficit if any between the full advalorem fee payable on the amount at which the claim is awarded by the Tribunal according to the scale prescribed under Article 1 of Schedule 1 to the Bombay Court Fees Act, 1959, and the fee already paid by him.

4. We cannot agree with Mr. Oza that the Legislature did not intend to make a provision for paying court-fees in the first instance as specified in the two relevant clauses because the expression used was: 'that amount shall accompany the application in court-fee stamps '-, whether of Rs. 10/- or 50 % amount. The legislature was conscious of a sympathetic approach in such motor accident cases, so that the persons who are victims in such a calamity were not required to pay full court-fees amount in the first instance, but the initial amount to accompany the application is really the court-fee amount, which is to be affixed in Court fee stamp to the application whether of Rs. 10/- or 50 % on the basis of the claim, when it is of Rs. 10,000/- or more. That is why the entire deficit has to be made up when the claimant succeeds, although the legislature has generously provided for this deficit to be made up only to the extent that the amount is awarded. Therefore, on a true interpretation of Rule 292, it is clear that the additional court fee would have to be paid over the initial amount which accompanied the application in the event the claimant succeeds, of-course, to the extent of the deficit being made good according to the scheduled fee on the amount awarded.

5. In view of the aforesaid scheme of the Act, the material question which we have to consider is, there being no prohibition created by the Act or the rules that no award shall be drawn up unless deficit court fees is first paid or against execution being levied, without this condition precedent being first fulfilled, whether any such prohibition can be impliedly spelt out by the Tribunal. On first principles it is obvious that this being a fiscal measure, it can never be interpreted so as to arm the defendant tortfeasor with a weapon of offence by way of any technical condition precedent so as to defeat the salutary object underlying this legislation that the compensation should reach the ill-fated victim. The legislature is right in not providing for the full amount of fees according to the claim made. The legislature has even given liberty to the application being made on a certain initial amount of court fees, whether Rs. 10/- in claims of less than Rs. 10,000/- or even half the amount on the basis of the claims in cases where the claims are of Rs. 10,000 or more. The legislature seeks to recover the deficit only from the successful claimants and that also to the extent of the claim awarded by the Tribunal. When the Tribunal is required to give its judgment in a formal adjudication, the Civil Procedure Code has cast a mandatory obligation on the Tribunal to draw up its award as a decree. Therefore, unless there is a condition precedent, the Tribunal can never refuse to perform its mandatory obligation to draw up its award. The deficit court fee question arises only at the time of the award when the claimant succeeds, and that too to the extent of the claim awarded. Therefore, there is inherent evidence in the scheme of Rule 292 when seen in the light of this laudable object of the legislature that there can be no such condition precedent. To imply any such condition precedent would mean that the tort-teasor would escape because an indigent claimant, who may not be a complete pauper so that he could avail of the provisions of presenting his claim in forma pauperism, would never be able to get his award drawn. If the award is not drawn up, not only no appeal could lie under Section 110D, but the claimant would not be able to execute the award. The construction which the Tribunal has placed on the scheme in its anxiety to see that the court fees are paid up would really deprive the State of its revenue, if no award is at all drawn up and such a construction would benefit only the tortfeasor. An indigent claimant could never pay and, therefore, the judgment would remain a dead-letter and that can never be the intention of this benevolent legislation, especially when such liberal court-fee provision has been made in Rule 292.

6. A perusal of the scheme of the Court Fees Act would really bring out the legislative intention that it never intended to create here any such condition precedent. In Section 13(1) of the Bombay Court-Fees Act, 1959, it is in terms provided that in a suit for the recovery of possession or immoveable property and mesne profits or for mesne profits or for an account, the difference, if any, between the fee actually paid and the fee which would have been payable had the suit compromised the whole of the profits or amount found due, shall on delivery of judgment, be taxed by the Court and shall be leviable from the plaintiff and if not paid by him within thirty days from the date of the judgment be recoverable according to the law and under the rules for the time being in force for the recovery of arrears of land revenue. Sub-clause (2) provides that the Court shall send a copy of the decree passed in such suit to the Collector. Sub-clause (3) which is material enacts that no decree for mesne profits passed in any such suit by the Court shall be executed, until a certificate to the effect that such difference is paid or recovered, signed by the Court which passed the decree or by Collector who recovered the amount, is produced along with the application for such execution. Therefore, in the aforesaid particular case where the legislature knows that a deficit has to be recovered by way of court fees, a specific provision is made in Section 13 that the deficit shall be taxed on the delivery of judgment and shall be leviable from the plaintiff, and if not paid by him within 30 days from the date of judgment, be recoverable according to the law and under the rules for the time being in force for the recovery of arrears of land revenue. That is why, a copy of the decree has to be sent to the Collector. A further prohibition is enacted in Section 13(3) that no decree for mesne profits passed in such suit by the Court shall be executed, until a certificate to the effect that such difference is paid or recovered, signed by the Court which passed the decree or by the Collector who recovered the amount, is produced along with the application for such execution. Therefore, wherever the legislature intended to or create any such condition precedent for taxing up the court fees and recovery from the plaintiff within particular period from the date of judgment, it has made specific provision in that behalf by directing the Court to tax such amount on the delivery of judgment and a further provision is made for recovery, even by way of arrears of land revenue. Besides, a condition precedent is created against such decree being executed without necessary certificate that the deficit court fee amount has been paid. The language used in the relevant Rule 292 is totally different in view of the laudable object behind this statute. That is why the legislature has not created any such condition precedent that the award shall not be drawn up unless the court fee is paid. The legislature was conscious of the fact that an indigent litigant could hardly afford to fulfil that condition precedent, and it would only enable the tortfeasor to escape. Such a condition precedent would defeat the entire object of this Act and even may make the State lose its revenue. Therefore, no such condition precedent was rightly enacted as it was done in the aforesaid Section 13 of the Court-fees Act.

7. It is a settled principle of such revenue laws not to treat them as technicalities for the benefit of the defendant. In Hindustan Steel Ltd. v. Dilip Construction Co. A.I.R. 1969 S.C. 1238, their Lordships in terms observed that the Stamp Act was a fiscal measure enacted to secure revenue for the State on certain classes of instruments. It was not enacted to arm a litigant with a weapon of technicality to meet the case of his opponents. The stringent provisions of the Act were conceived in the interest of the revenue. Once that object was 'secured according to law, the party staking it claim on the instrument would not be defeated on the ground of the initial defect in the instrument. Even in the context of court fees in Mannan Lal v. Chhotka Bibi A.I.R. 1971 S.C. 1874, their Lordships pointed out that Section 149 of the Code of Civil Procedure mitigaged the rigour of Section 4 of the Court-fees Act and it was for the Court to harmonise the provisions of both the Court-fees Act and Civil Procedure Code by reading Section 149 of the C.P. Code as proviso to Section 4 of the Court-fees Act and allowing the deficit to be made good within a period of time fixed by it. If the deficit was made good no possible objection could be raised on the ground of bar of limitation, as Section 149 expressly provided that the document was to have validity with retrospective effect. In the present case, the provision of initial court fees was already there in Rule 292, and the question arises only when the claimant succeeds for the deficit to be made good only to the extent of the claim awarded. Therefore, the legislature has not introduced any such condition precedent advisedly as it would otherwise deprive the State of its revenue and enable the tort-feasor to escape with immunity. In Siri Ram v. Jagan Nath A.l.R. 1957 Punjab 65, Kapur, J. (as he then was) had in terms held that as Order 21 Rule 11 contemplated even an oral application for execution immediately after the passing of the decree, it was obvious that the execution application could be made even though no decree-sheet had been drawn up and no stamp duty on a partition-decree had been paid. The impediment because of Section 35 of the Stamp Act, in such a partition decree only was that such a decree could not be executed. It was, however, pointed out even in such a case that it was the duty of the Court to draw up the decree after the judgment had been pronounced. It might be that due to Section 11 of the Court-fees Act, the decree could not be executed until the Court-fee had been paid or under the Stamp Act, the document could not be effective for the purpose of taking proceedings, but in either case there was no reason why the decree sheet should not be 'prepared. The Court could not shirk its duty of drawing up the decree and was not concerned whether such a decree would be executable or not. Therefore, this decision also rightly points out that these two questions must be kept totally separate and distinct, one relating to the drawing up of the decree and the other as to execution, whether if any impediment exists either under the stamp law or under the Court fees Act, which would operate against execution being granted. In the present case, however, there is no such impediment either under the stamp law or under the Court Fees Act. In any event, so far as the second question is concerned, as to the duty of the Court to draw up a decree in accordance with the judgment, this aspect would hardly have any relevance that the decree would or would not become executable without the court fee deficit first being made good. The Court would hardly be concerned with the second question when it has a mandatory duty to draw up the award in accordance with judgment.

8. It is true that in the present case the Tribunal had in its judgment given this ultra vires direction that the award shall be drawn up on the deficit court fees being paid. This patently erroneous, ultra vires direction is, however, rightly challenged in this writ petition. Mr. Jam has rightly not challenged the competence of this writ petition because when the Tribunal gave such an ultra vires direction, even without driving the petitioners to the alternative, onerous remedy of appeal, the relief could be granted in the writ jurisdiction. When such patent error is made out, and the Tribunal refuses under a plain misconception of law to perform its statutory duty to draw up the award, a mandamus must issue, as there was no provision of law which made payment of deficit court fee a condition precedent either for drawing up the award or for its execution.

9. Mr. Jani, however, pointed out that the Tribunal had rightly considered the difficulties of the State. As earlier pointed out by us, the difficulties of the State are more imaginerly than real. In the present case even the learned Government Pleader who appeared for respondent Nos. 2 and 3 at the very outset made it clear that he would immediately deposit the amount before the Tribunal. That was right attitude on behalf of such a corporate body when the award was made against respondent No. 3 and its driver. Once that amount is paid up in the Court, the State would have its Court fees. The question which we have to answer is that if the legislature has advisedly not made any provision for creating such a condition precedent and has left that lacuna advisedly in view of the benevolent scheme of the Act, would the Court be entitled to fill up this lacuna by creating such a condition precedent? Such a condition precedent would in fact, as earlier pointed out by us, only operate in favour of the tort-feasor and would defeat the object and deprive the State of its revenue. Therefore, neither on any principle of construction of the statute nor on any rational principle, such a course can be adopted by the Tribunal. Further, the difficulty which the Tribunal had envisaged was that the taxed court fee had to be mentioned in the award and until it was recovered, how can it be mentioned? Once the judgment is delivered and the decree has to follow the award, it is obvious that if the claimant succeeded and the said amount of court fee was leviable to that extent, the taxed costs would include the court fees amount to the extent of that deficit, irrespective of the fact whether the claimant at the stage of drawing of the decree had paid up deficit or not. The liability of the claimant and even of the party ultimately held liable for the costs was adjudicated and had become a decretal debt and, therefore, there would be no difficulty in showing that amount in the taxed costs. Tribunal had, of-course, mentioned that if the claimant had approached in forma pauperis, the Tribunal could have directed that the award should be drawn up without the court fees being paid because a specific procedure is laid down under Order 33 in such cases. Merely because that benefit is available to real paupers falling within the scope of Order 33, there is no reason why the other indigent litigants should be, deprived of this salutary benefit, by creating such a condition precedent. Therefore, no reason worth the name has been assigned by the Tribunal for adopting this absurd construction which completely defeats this statute. Mr. Jani next argued that, in any event, the Court must be anxious to see that the States court-fees claim was not jeopardized, especially when the legislature has even enacted Section 110E for recovery of the monies due under the award not only from the insured but from any person by coercive process of land revenue arrears recovery. That provision is an adequate safeguard which discloses the legislative intent why it has not created any such condition precedent that the award shall not be drawn up without the deficit court fee being first paid or that it shall not be executed without such deficit being first made good.

10. The Tribunal should have been sufficiently alive and imaginative, if it really wanted to safeguard the claim of the State for the court-fee amount. We would suggest that in all such cases, the Tribunal should while awarding costs add a suitable direction that the amount of court fee shall be paid up by the party held liable for costs within a particular period, and, in default, a certificate shall issue under Section 110E for the said amount to the Collector, who can thereafter recover the same in the same manner as arrears of land revenue. This power is really available to the Claims Tribunal if the entire scheme is read, particularly keeping in mind Section 110B and Section 110E. Under Section 110E the Claims Tribunal could specify the amount which has to be paid by the insurer or owner or driver or all or any of them while making the award of compensation with costs and interests. That is why in Section 96(1) the insurer is made liable to satisfy the liability of the insured judgment debtor as if he were the judgment debtor to the extent that the liability is covered by the terms of the policy together with the proportionate costs and interests on that sum, by virtue of any enactment, which would include interest pendente lite under Section 34 of the Code or under Section 110CC. Besides, Section 110E clearly invests power on the Claims Tribunal that when it is moved by an application by the claimant it can issue necessary certificate for coercive recovery under the land revenue Code for any money which is due under the award from any person. Therefore, to see that the court-fee amount is properly paid up by the person on whom the liability is fastened ultimately, the Claims Tribunal could surely incorporate the necessary direction in its judgment and award. If the certifying power can be subsequently exercised under Section 110E on an application made by the person entitled, it is obvious that in case of such a court-fee claim due to the State under the award, such a direction could be incorporated in the award itself.

11. What can be done on a motion by an application can be done in this context suo motu by the Court for safeguarding court fee claim by or as per direction in the award itself. That would bring the scheme of this Act in line with Section 13(1) of the Court fees Act as per the obvious intention of the legislature when it relaxed court fees provision in case of ill-fated claimants involved in such motor accidents.

12. In that view of the matter, we would allow this writ petition by deleting the direction in the latter part of the judgment: 'an award shall be drawn up the deficit court fees being paid,' and we issue a mandamus to the Claims Tribunal to draw up an award to the present case. Even without the direction on the lines suggested by us, no difficulty is to arise in the present case, because the Government Pleader has assured to deposit the entire award amount before the Tribunal, and therefore, no further directions are necessary in that connection. Rule is accordingly made absolute with no order as to costs in the circumstances of the case.


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