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Jammu & Kashmir High Court - Srinagar Bench

State Of J&K And Others vs Javed Ahmad Malik on 3 June, 2022

Author: Vinod Chatterji Koul

Bench: Vinod Chatterji Koul

                                                                S. No. 27
                                                                Regular Cause List
      THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR

                              MA no. 45/2018
State of J&K and others                                ...Appellant(s)/Petitioner(s)

Through: Ms. Asifa Padroo, Advocate

                                      Vs.

Javed Ahmad Malik                                                  ...Respondent(s)

Through: Mr. S. N. Ratanpuri, Advocate

CORAM:
         HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
                                ORDER

03.06.2022 In terms of Order dated 16.10.2018, holding that there was no exceptional cause for staying the execution proceedings without depositing of the awarded amount and it was directed that subject to deposition of entire amount of the award within six weeks, operation of the impugned award shall stay. Appellants have not complied with the stay order. They have filed another application seeking modification of the order. Modification of the order sought on the following grounds;

"....that the instant appeal along with condonation of delay application stands filed in terms of section 173 of the Motor Vehicle Act, 1988 against the award dated 31.01.2017 passed by the Court of Motor Accident Claims Tribunal (Principal District Judge), Pulwama in Claim Petition titled Javaid Ahmad Malik V/s State of J&K and others, where under an amount of Rs. 13,01,600/- has bee awarded to the petitioner as compensation along with 6% interest per annum from the date of filing of the claim petition till its final realization of the awarded amount.

That as the appellants (petitioner herein above) felt aggrieved of the award of the ld Motor Accident Claims Tribunal, Pulwama, as such decided to avail remedy of appeal provided U/S 173 of the Motor Vehicle Act, 1988. The said appeal has been ordered to be diarized vide order dated 28.03.2018 in CONC No. 22/2018. For facility of ready reference, section 173 of Motor Vehicles Act, 1988, is reproduced, here under:-

"173-(1) Subject to the provisions of sub section (2), any person aggrieved by an award of claims Tribunal may, within ninety days from the date of 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 percent, 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. No appeal shall lie against any award of a claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees."

Accordingly, as per said proviso, the appellants (petitioner herein) were required to deposit an amount of Rs. 25000/- before filing of the appeal. The appellants filed the appeal along with condonation of delay application and also deposited an amount of Rs. 25000/- as statuary amount with the registry of the Hon'ble Court against proper receipt.

That the Condonation of delay application was listed before the Hon'ble Court on 16.10.2018, when this Hon'ble Court was pleased to pass the above quoted order, in terms of which, entire award amount has been directed to be deposited, which direction, it is respectfully submitted is not in tune with the said proviso, as such there is an error apparent on the face of the said order, which error requires to be removed by modification of the order. It is apt to state here, that the appeal along with Condonation of delay application was accepted by the Registry of this Hon'ble Court only after the appellants complied with the above quoted provision of law providing for depositing of Rs. 25000/- or 50% of the amount so awarded, whichever is less, in the manner directed by the High Court. Thus, the error apparent on the face of the order can be removed only after modification the order."

Since there was a direction for depositing of amount, this application has no substance and same is rejected. At this stage learned counsel for the appellant(s) submits that she may be given time to comply with the order and she will deposit the award amount within two weeks. Prayer made is allowed. However, it is made clear that in case award amount is not deposited, executing court shall be at liberty to proceed with the execution proceedings.

List on 16.08.2022.

(VINOD CHATTERJI KOUL) JUDGE SRINAGAR 03.06.2022 "Imtiyaz"