Calcutta High Court (Appellete Side)
Aishwarya Sen vs New India Assurance Company Ltd on 7 December, 2023
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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
R.V.W No. - 185 of 2023
With
CAN 1 of 2023
CAN 2 of 2023
In
FMA 197 of 2017
Aishwarya Sen.
Vs.
New India Assurance Company Ltd.
Mr. Tapas Dutta
Mr. Raja Sharma
.......... for the applicant
Mr. Parimal Kumar Pahari
.............. For the respondent/Insurance Co.
Mr. Rajesh Singh ......... For amicus curie Dated : 07.12.2023 Ref:- CAN 2 of 2023 This is an application for clarification of the letter dated 04.09.2023 of Joint Registrar (General Administration II) High Court Appellate Side Calcutta.
Learned advocate for the applicant/claimant submits that by the order and judgment dated 12.05.2023 passed in FMA 197 of 2017 and FMA 804 of 2017 the Insurance 2 Company is directed to pay compensation for an amount of Rs. 27, 66,475/- along with interest at the rate of 06% per annum from the date of filing of the claim petition till the payment. The claimant has paid ad valorem court fee on the claim amount of Rs. 14, 90,000/- at the time of institution of the claim petition before the Learned Tribunal. It is the case of the applicant that the Joint Registrar (General Administration II) High Court Appellate Side Calcutta by his letter dated 04.09.2023 intimated the Learned Advocate for the petitioner for taking necessary action for payment deficit court fees upon the enhanced compensation. The Joint Registrar further asking for payment ad valorem Court Fees on the enhanced compensation has withhold the draft of without any cogent reason.
Accordingly, the instant application was filed for issuing specific direction upon Registrar General to hand over the draft without insisting the petitioners to deposit the ad valorem Court Fees on the enhanced amount.
Learned Advocate appearing on behalf of the appellant submits that the letter issued by the Joint Registrar claiming the ad valorem court fees on enhanced amount is erroneous. The claimant has paid the ad valorem court fees at the time of filing of the claim application. The impugned judgment passed 3 by the Learned Tribunal has recorded that the court fee paid is sufficient. This is not a money suit so ad valorem court fee cannot be claimed upon the enhanced compensation according to the provisions of West Bengal Court Fees Act. He further pleaded according to the Rule 331(1) of West Bengal Motor Vehicles Rule; an application for compensation has to be accompanied by prescribed Court fees as mentioned in the Rule itself. There are no provisions for payment of Court fees if the compensation was enhanced later on in the stage of appeal. The Motor Accident Claim Case is not equivalent to a suit so the question of payment of ad valorem Court Fees is not applicable. The payment of Court Fee in a proceeding before the claim tribunal under the provisions of Motor Vehicles Act is separate to the different states. Learned Advocate for petitioner has prepared a compilation regarding the Rules for payment of Court fees in different States before the claim tribunal. There is no specific rule or order to show that the court fee can be collected during the appellate stage. He further argued that as there is no rule to that effect so the Joint Registrar cannot claim deficit Court Fee on the enhanced amount.
Learned Advocate appearing on behalf of the respondent Insurance Company submits that the provision of law is very much clear the claimant is entitled to get the enhanced 4 compensation subject to payment of deficit court fees. He prayed for rejection of the instant application.
Considering the merit of this matter Mr. Rajesh Singh who usually appears before this court on behalf of the Insurance Company is appointed as amicus curie in this matter.
Mr. Singh argued that the Rule 331(1) of the West Bengal Motor Vehicles Rule 1989 has mentioned about the Court Fees on the amount of claim. Rule 331(2) held that the claim tribunal may exempt already for payment the prescribed fees at the time of filing of the claim application but the claimant has to pay the prescribed fees before the copy of the judgment is obtained. He argued that a claim application is not required to mention the claim amount. The tribunal has to assess just and proper compensation of a particular case and thereafter the prescribed court fee can be asked to be filed before the copy of judgment is obtained. He further argued in different states there may have the rule of filing the application without any court fees but in a state of West Bengal the specific rules provides for payment of court fees. He again argued that the claim tribunal has the scope to enhance the claim in appropriate case so the claim tribunal has the authority to receive the prescribed court fee on enhanced amount. In 5 support of his contention he cited different decisions of Hon'ble Supreme Court.
In Jabbar Vs. Maharastra State Road Transport Corporation 2020 (1) TAC 37, the Hon'ble Supreme Court has enhanced the amount of compensation for the purpose just and proper compensation of that particular case and as directed to deposit the deficit court fees on enhanced amount.
In District Collector Vs. Smt. Lilabai and Ors. 2001 ACJ 1636. The Madras High Court directed the claimant to pay the additional court fee on the amount of excess compensation which was enhanced in the stage of appeal.
In National Insurance Company Limited Vs. Salma Farheen the claimant was directed to pay the deficit court fees on the enhanced amount.
In Nagappa Vs. Gurudayal Singh 2003 ACJ 12, the Hon'ble Supreme Court has held that compensation shall not be restricted on the claim amount as mentioned in the claim application. In appropriate case the claim can be enhanced by the claimant by an amendment application and High Court shall not restricted in a provision u/s 156 of the MV Act to pay the compensation on the restricted amount.
Finally, Mr. Singh submits that appeal is continuation of the proceeding initiated before the Learned Tribunal; the 6 appellate court has the every authority to pass necessary direction for payment of ad valorem court fees on the enhanced amount.
Heard the Learned Advocates.
Perused the materials on record also perused the decision passed by the Hon'ble Supreme Court and the High Courts. The issue involved in the instant CAN application is whether the claimant is required to pay the prescribed court fees as mentioned in Rule 331(1) on the enhanced compensation amount as awarded by the High Court.
In considering the fact laid the Rule 331(2) is set out hereunder (2) The Claims Tribunal may exempt a party from the payment of fee prescribed under sub-rule (1) provided that where a claim of the party has been accepted by the Claims Tribunal, the party shall have to pay the prescribed fee, exemption in respect of which has been granted initially before a copy of judgment is obtained.
Rule 331(1) provides that an application for compensation under the MV Act shall be filed along with the prescribed fees on the amount of claim.
Rule 331 (2) has enacted by giving a power to the tribunal to exempt the claimant at the time of filing of the claim 7 application for payment of prescribed court fees at the same time the Rule 331 (2) has directed that the prescribed fees has to be paid before the copy of judgment is obtained.
It is true that the tribunal can assess just and proper compensation not only on the basis of the amount mentioned claim application but of peculiar facts and circumstances of this case. In Nagappa (supra) Hon'ble Supreme Court has made it clear that the enhancement of a claim can be ordered by the High Court or Supreme Court in a fit case.
Rule 331(2) empowered the claim tribunal to ask the claimant to file deficit court fee before of a copy of judgment is obtained.
The plaint reading of the 331(2) of the Rule makes abundantly clear that the claim tribunal has the authority to ask for the ad valorem court fees on quantified amount. The effect of this rule also applies as well to the High Court at the stage of appeal and also for the Apex Court.
Conjoint reading of Rule 331(2) and direction of Hon'ble Apex Court in Nagappa empowers the High Court as well as Supreme Court to enhance the claim of compensation as well as to direct claimants to pay prescribed court fee on enhanced amount.
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In considering the technical side, the Joint Registrar (General Administration II) High Court Appellate Side Calcutta has issued the letter as per impugned judgment under review. Filing an application seeking clarification of the letter of the Joint Registrar appears to me touching the merit of the judgment under review.
Accordingly I find no justification to entertain the application being CAN 2 of 2023. Accordingly the CA N 2 of 2023 is dismissed.
Claimant is directed to furnish deficit court fees before the office of the Learned Tribunal on the enhanced amount as directed by the Learned Appellate Court vide judgment dated 12.05.2023. The office of the Learned Tribunal shall act upon, on the basis of the certified copy of the judgment dated 12.05.2023.
Assistance of Mr. Singh to this court in disposing this matter is highly appreciated.
Let the matter appeared in the list for the hearing of the review application on December 19th, 2023 Parties to act upon the server copy and urgent certified copy of the judgment be received from the concerned Dept. on usual terms and conditions.
(Subhendu Samanta, J.)