Madhya Pradesh High Court
Uzer Khan Minor Through Natural ... vs Faruq on 7 March, 2022
Author: Anil Verma
Bench: Anil Verma
IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 7th OF MARCH, 2022
MISC. APPEAL No. 814 of 2022
Between:-
UZER KHAN MINOR THROUGH NATURAL GUARDIAN FATHER
AZAM KHAN S/O SALIM KHAN , AGED ABOUT 35 YEARS,
OCCUPATION: LABOUR GRAM MANAVAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI HIMANSHU PALIWAL, ADVCOATE )
AND
FARUQ S/O IQRAR MOHAMMAD , AGED ABOUT 24 YEARS,
1.
GRAM UMARBAN (MADHYA PRADESH)
FAIZAL KHAN S/O MUBARIK KHAN 147, RAJENDRA MARG
2.
(MADHYA PRADESH)
DIVISIONAL MANAGER THROUGH ICICI LOMBARD GENERAL
3. INSURANCE CO. LTD. II FLOOR, COMMERCE HOUSE, 7, RACE
COURSE ROAD (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENT )
This appeal coming on for admission this day, the court passed
the following:
ORDER
Heard learned counsel for the appellant on the question of maintainability of Miscellaneous Appeal since the claim amount awarded by the Claim Tribunal is only Rs. 73,300/-
2. Learned counsel for the appellant has submitted that they had filed claim of Rs. 4,50,000/- before the Claim Tribunal and was awarded only Rs. 73,300/-, therefore, the dispute is with regard to Rs. 4,50,000 - 73,300/- = Rs. 3,76,700/-. Thus, the disputed amount in the appeal filed by the claimant is enhanced claim in the appeal; it is not amount awarded, which shall determine whether the appeal is maintainable under section 173(2) of the Motor Vehicles Act, 1988 or not?. The amount in dispute is more than Rs. 1,00,00/-, therefore, the appeal is maintainable.
3. In support of the contention, learned counsel for the appellant has placed reliance upon the judgment dated 21/11/2016 delivered by co-ordinate Bench of this Court in M.A. no. 1996/2016 (Netram Vs. Rajendra Singh Yadav and others), in which it has been held as under :
"In the present case, looking to the limitations in this Revision and the fact that the purpose of provisions contained in section 173(2) othe Motor Vehicles Act, is to discourage appeals by the owner, driver and the insurer for petty amounts. It cannot be said that a claimant can be rendered remedyless, therefore, if the objection is not overruled, then it will amount to miscarriage of justice, therefore, the objection pointed out bythe Registry is overrulled. In the result, the appeal is maintainable"
4. Learned counsel has also placed reliance upon the judgment delivered in the case of Pala Ram Vs. Punjab Roadways and another reported in 2007 ACJ 983, in which it has been held as under :
"4. In my opinion the argument raised is totally misconceived and ill-founded. The words used in section 173(2) are that the amount in dispute in appeal is less than Rs. 10,000. In the present case the claimant in his claim petition had claimed compensation of Rs. 80,000. He has been awarded Rs. 7,000. He now in appeal claims compensation as claimed by him in the claim petition. Therefore, the dispute is with regard to Rs. 73,000 and not Rs. 7,000. The judgments relied upon by Mr. Sharma are not at all relevant for the decision of this case since in both those cases the appeals were filed by the owners of the vehicles and the award was less than the stipulated amount. When a driver, owner or insurance company files an appeal then obviously if the award is less than Rs. 10,000 the dispute is with regard to an amount less than Rs. 10,000, However, when the claimant comes up in appeal for enhancement he is claiming the amount claimed by him in the claim petition and if that amount is more than Rs. 10,000 the appeal will be maintainable. The disputed amount in an appeal filed by the claimant is the enhancement claimed in the appeal or in case where the claim petition has been dismissed the total amount claimed in the claim petition. It is not the amount awarded which will determine whether appeal is maintainable under section 173(2) or not. It is the amount which is in dispute in the appeal which will determine whether the appeal is maintainable. Therefore, in my opinion this objection has no basis and is accordingly rejected ".
5. Section 173 of the Motor Vehicles Act, 1988 (in short "the Act") reads as under :
173. Appeals.--
(1) Subject to the provisions of sub-section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court:
Provided that no appeal by the person who is required to pay any amount in terms of such award shall be entertained by the High Court unless he has deposited with it twenty-five thousand rupees or fifty per cent. of the amount so awarded, whichever is less, in the manner directed by the High Court:
Provided further that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than [one lakh] rupees.
6. Sub-section 2 of Section 173 of the Motor Vehicles Act, 1988 clearly provides that no appeal shall lie against any award of Claims Tribunal, if the amount in dispute in appeal is less than Rs. 1,00,000/-.
7. It is also alleged that the award therein refers in section 173 of the Act, but the word "the amount in dispute" is used in section 173(2) of the Act, but the word "amount in dispute" is not described in section 173(2) of the Act. The intention of the legislature is very clear. The legislature has not given right of appeal, where the dispute in appeal is valued less than Rs. 1,00,000/- and the legislature has absolutely barred the filing of appeal where the amount in dispute in appeal is less than Rs. 1,00,000/-.. The intention behind creating bar is to attach finality ot the award, wherein compensation is less than Rs. 1,00,000/-. With this intention, the bar has been created.
8. The Apex Court in the case of Sadhna Lodh v. National Insurance Company Limited, AIR 2003 SC 1561 :
(2003) 3 SCC 524 has held in para 6 as under:
"The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution on the premises that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute, it is not open to an insurer to take any plea other than those provided under section 149(2) of the Act. This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order, and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under section 115 of the Civil Procedure Code. Where remedy for filing a revision before the High Court under section 115 of Civil Procedure Code has been expressly barred by a State enactment only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of an illustration, where a trial Court in a civil suit refused to grant temporary injunction and an appeal against the refusal to grant injunction has been rejected, and a State enactment has barred the remedy of filing revision under section 115, Civil Procedure Code in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State legislature has barred a remedy of filing a revision petition before the High Court under section 115, Civil Procedure Code, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution."
9. The Act has created bar with regard to maintainability of appeal by virtue of section 173(2) of the Act, when the compensation awarded by the Claims Tribunal is less than Rs.1,00,000/-.
10. If the Motor Vehicles Act, 1988 is examined, it become amply clear that the finality is provided to the award for less than Rs. 1,00,000/-. By necessary implication of the terminology in section 173, sub-section (2), right of appeal against such award is not available, therefore, I am rejecting this Miscellaneous Appeal on the very short ground of maintainability under section 173(2) of the Motor Vehicles Act, 1988. I decline this appeal on admission.
11. In light of the aforesaid, present Miscellaneous Appeal is dismissed with no order as to costs.
Certified copy, as per Rules.
(ANIL VERMA) JUDGE Digitally signed by AMOL N MAHANAG Date: 2022.03.12 10:37:53 +05'30'