Patna High Court - Orders
Shashi Bhushan Singh vs Oriental Insurance Company & on 1 February, 2010
Author: Ramesh Kumar Datta
Bench: Ramesh Kumar Datta
IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.21 of 2005
SHASHI BHUSHAN SINGH
Versus
ORIENTAL INSURANCE COMPANY &
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For Appellant: Mr. V. Nath,Advocate
Mr. Ashok Kumar, Advocate
For Respondent No.1: Mr. Barun Kumar Choudhary, Advocate
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23. 1.2.2010I.A. Nos.704 & 1599 of 2006 The two interlocutory applications have beenfiled by the owner of the vehicle for holding that the direction issued by the Joint Registrar (Judicial) by his order dated 18.10.2005 to pay Rs.25,000/- as specified under the proviso to Section 173 of Motor Vehicles Act for maintaining the appeal is not warranted by law and further to recall/modify the order dated 9.3.2006 of this Court by which the appellant was directed to pay the statutory amount under the proviso to Section 173 of the Motor Vehicles Act.
In the present matter, the Tribunal has in its judgment and award held that although the Insurer-Oriental Insurance Company respondent No.1 is liable to pay compensation to the claimants being third party but it is entitled to recover its paid amount from the insured-opposite party No.1-appellant, who has not been able to prove that the vehicle was being driven by a driver -2- having valid licence at the time of accident. The admitted position is that the Insurance Company has deposited the amount under the award. The owner has come to this Court against the said award so far as recovery of the amount paid by the Insurer from him is concerned.
Learned counsel for the appellant submits that under Section 173 of the Act and its proviso any person aggrieved by an award may prefer an appeal to the High Court but no appeal by the person who is required to pay any amount in terms of such award amount shall be entertained unless he has deposited with it Rs.25,000/- or 50% of the amount whichever is less. It is submitted by learned counsel that the provision to pay any amount in terms of such award has to be read as payment of the amount to the claimants. It is submitted that the main purpose of the Act is to give benefit to the claimant and the said purpose being satisfied on the awarded amount being deposited by the insurance company, the interest of the claimant shall not be affected by the decision of the appeal one way or the other.
In support of the aforesaid proposition, learned counsel relies upon a Division Bench -3- decision of the Punjab and Haryana High Court in the case of Sohan Singh v. Kushla Devi and others:
A.I.R.1996 Punjab and Haryana 256, in paragraph Nos. 4 and 5 of which it has been held as follows:
"A careful reading of the above quoted provision shows that sub-sec (1) of S. 173 gives a right of appeal to any person aggrieved by an award of the Claims Tribunal.
The period of limitation for filing such appeal is 90 days from the date of award. Second proviso to S.173(1) empowers the High Court to entertain the appeal after the expiry of the period of 90 days in case the High Court is satisfied that the appellant was prevented by sufficient cause from preferring an appeal in time. First Proviso to S.173 (1) refers to an appeal by a person who is required to pay any amount in terms of the award. It lays down that no appeal by a person who is required to pay any amount in terms of the award shall be entertained by the High Court unless such person deposits with the High Court Rs.25,000/- or 50% of the amount so awarded by the Tribunal, whichever is less. The deposit is required to be made in the manner directed by the High Court. The significant difference between the language used in sub-
sec.(1) of S.173 and the First proviso is that whereas the expression "any person aggrieved by the award" has been used in the main sub-section, the proviso uses the expression" by the person who is required to pay any amount in terms of such award". This clearly means that the appeal can be filed by a person who may be aggrieved by the award but who may not be required to pay any amount in terms of the award. Ordinarily an appeal -4- by the claimant will be covered by this category. However,the Legislature has thought it proper to impose a restriction to the entertainability of the appeal by the High Court by a person who is required to pay any amount in terms of the award appealed against by requiring deposit of Rs.25,000/- or 50% of the amount awarded by the Tribunal, whichever is less. The Legislature must be deemed to be fully cognizant of the fact that the award can be against one party or more than one party and such parties may be jointly or severally made liable to satisfy the award. Keeping in view these situations, the Legislature has incorporated the requirement of the deposit by a person who wants to prefer an appeal against the award and who is required to pay any amount in terms of the award. If the Legislature intended that out of several respondents before the Tribunal, deposit of amount only by one should be sufficient to enable the filing of the appeal by more than one person who may be aggrieved by the award, then, the proviso would have altogether been differently worded and we do not find any reason to interpret the proviso in a manner which would lead to re-
writing of the same.
5. The object behind incorporating the proviso to S. 173 (1) of the Act is remedial and beneficial. The requirement of the deposit of the amount as a condition precedent to the entertainability of the appeal protects the interest of the claimant in whose favour an award has been made. By making it obligatory to deposit the amount specified in the proviso to S. 173 (1), it has been made clear by the Legislature that one who wants to challenge the award of compensation -5- must part with a specific amount which can in appropriate cases may be made available to the claimants even before final adjudication of the appeal. Keeping in view the object behind the legislative intent, we do not find any reason not to accept the plain language used in the proviso and apply different principles of interpretation which may lead to re-writing of the statute."
He further relies upon a Division Bench decision of this Court in the case of Ramesh Singh and another v. Chinta Devi and others: A.I.R. 1994 Patna 44, in the relevant part of paragraph Nos. 15 and 16 of which it has been laid down as follows:
"15. The harassment caused to the victim or his close relatives by compelling them to approach the ordinary courts of law was sought to be remedied by setting up Tribunals so that an expeditious remedy may be available to them. In most of the cases the affected persons are widows and/or dependants. The right of appeal is provided to all the parties. The right of appeal provided to those against whom awards have been passed is not entirely taken away by the 1988 Act. To meet the situation, when an appeal is filed against an Award made in favour of the claimants, which would inevitably delay the enforcement of the Award and cause hardship to the claimants and in order to discourage frivolous appeals which would frustrate the object of the -6- Act and to give speedy relief to the affected persons, that such condition for deposit has been imposed. The "Luxury" and the "privilege" of contesting such Award passed in favour of a claimant, by way of preferring an appeal, has been kept alive by the 1988 Act but such "luxury" and "privilege"- call it a "right" if you like- has merely been made conditional by providing for deposit of a proportion of the Award money with a maximum limit, in order to protect the right of the claimant in whose favour an Award has been passed. The right of appeal is not taken away but in order to prevent harassing tactics against the enforcement of Awards in favour of the claimants such a condition regarding deposit of certain amount has been provided...
16. Moreover, unless such provision for deposit is made applicable in respect of all appeals filed after the 1988 Act came into force, without making any distinction between the claim petitions filed before or after the 1988 Act, it would amount to unreasonable classification without any reasonable nexus to the purpose and object of the Act. A discrimination would be created in respect of a beneficial legislation. Reasonable classification is permissible but not discriminatory legislation. So far as the provision for such deposit is concerned, which has been introduced for the benefit of the claimants in order to reduce their hardships and with the object of discouraging frivolous appeals, no distinction can or should be made between the persons, who have filed claim petitions before the 1988 Act came into force, and those who have filed such claim petitions after the 1988 Act came into force -7- when both the group file appeals after the 1988 Act comes into force. Certainly that could not have been the intention of the legislature in enacting such beneficial and welfare legislation."
He further relies upon a Division Bench decision of the Kerala High Court in the case of Abdul Rahiman vs. Rajan and others: 2005 ACJ 682 where the specific issue of deposit of the statutory amount in a similar situation was raised and in paragraph No.3 of the decision it was held as follows:
"3.Proviso to section 173 was intended to remove the hardship of the claim and it mandates that the persons who are responsible for payment as per the award should deposit Rs.25,000/- or 50 per cent of the amount awarded, whichever is less, as a condition precedent to filing the appeal. Here, the insurance company was directed to deposit the amount and, only satisfying the award, it was allowed to get the reimbursement. The entire compensation amount awarded is directed to be deposited by the insurance company. Therefore, if the insurance company wants to file an appeal, it is bound to comply with the condition in the proviso to section 173 (1) as it is required to pay the amount awarded. Only after satisfying the award, the question of reimbursement will arise. It is true that once it pays the amount awarded reimbursement from the insured can be compelled in execution of the award itself. If -8- the appellants are directed to pay the amount first finding that there is no insurance coverage for the vehicle at the time of the accident, they are bound to make pre-deposit of the amount required before filing the appeal. But here the insurance company has been directed to deposit the amount. Hence, first proviso to section 173 (1) of Motor Vehicles Act regarding pre-deposit is not applicable in this case and the Registry is directed to number the appeal."
Learned counsel also relies upon a decision of a learned single Judge of the Madhya Pradesh High Court in the case of Kamalesh vs. Madan Singh and ors.: 2008 ACJ 373 where following the aforesaid decision of the Division Bench of the Kerala High Court, the same principle has been adopted.
Learned counsel for the Insurance Company, on the other hand, submits that deposit of Rs.25,000/- or 50% of the award amount whichever is less is a statutory requirement and since the same is provided by the statute itself and the provisions are clear and without any ambiguity, it has to be complied by any one who is required to pay any amount in terms of the award who prefers an appeal. Learned counsel further submits that although the direction of the Tribunal is to the -9- Insurance Company to first pay the compensation to the claimant and then recover the paid amount from the Insured-appellant but the said recovery is to be made in the same proceedings and not in a separate proceeding, as has been laid down in a catena of decisions of the Supreme Court in the case of National Insurance Co. Ltd. v. Swaran Singh and others: (2004) 3 SCC 297, National Insurance Co. Ltd. v. Kusum Rai and ors. : 2006 (4) SCC 250, Oriental Insurance Co. Ltd. v. Brij Mohan and others: (2007) 7 SCC 56 and several other decisions.
On the strength of the aforesaid decisions of the Supreme Court, learned counsel for the Insurance Company argues that once the amounts are to be recovered in the same proceeding under the same award then the owner of the vehicle from whom it is to be recovered is required to pay the amount in terms of the award and thus if he files an appeal before this Court then the said appeal cannot be entertained, unless he also deposits the statutory amount provided under the proviso to Section 173 of the Act.
Having considered the rival submissions of learned counsels for the parties, although the
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Division Bench of the Kerala High Court directly supports the stand of the appellant, yet I am not inclined to accept the said submission of learned counsel for the appellant. The said Division Bench decision of the Kerala High Court is based upon the reasoning that the proviso to section 173 of the Act is intended to remove the hardship of the claimant and for the said reason it came to the conclusion that even though in execution of the award the reimbursement of the amount can be claimed from the insured, yet the direction was to the Insurance Company to deposit the amount and, therefore, the proviso to Section 173 (1) of the Act regarding pre-deposit is not applicable in the case of the owner of the vehicle.
I am unable to accept the submission of learned counsel for the appellant and the reasons assigned by the Division Bench of the Kerala High Court for the simple reason that the proviso itself is clear and unambiguous and it clearly provides that no appeal by a person, who is required to pay any amount in terms of the award, shall be entertained by the High Court unless he has deposited statutory amount. Once there is a statutory bar to the entertainment of an appeal
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filed by a person, who is required to pay any amount in terms of the award of the Motor Vehicles Tribunal, then I think that it is not open to the Courts to interpret the purpose and object of the enactment in order to consider as to who is covered or who is not covered by the said proviso. It is a primary rule of interpretation of statutes that When the language of the statute is itself clear then the same has to be accepted and there is no requirement to further probe into the intention of the Legislature or the purpose of the statute to arrive at its proper meaning. It is evident from the provision of the statute that the amount has to be paid by any one who is required to pay any amount in terms of the award and it is evident that the appellant herein, who is the owner of the vehicle which has caused the accident is the person who has to ultimately satisfy the award although the Insurance Company has to first pay the amount and thereafter recover the same from the appellant. The appellant can not say that he is not required to pay any amount under the award which has been challenged before this Court.
The same is also evident from the decision of the Division Bench of the Punjab and
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Haryana High Court in the case of Sohan Singh (supra) where the driver of the vehicle was not exempted from filing the statutory amount on account of the fact that the State Road Transport Corporation in which he was working had already challenged the award and had paid the statutory amount. The Punjab and Haryana High Court also took the stand that the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. The question of interpretation arises only when the language is ambiguous and, therefore, capable of two interpretations, and in the present case the language of the proviso to sub-section (1) of Section 173 of the Act is explicit and unambiguous and it is not capable of two interpretations. I am in respectful agreement with the view taken by the learned Judges of the Division Bench of the Punjab and Haryana High Court and do not agree with the contrary view taken by the learned Judges of the Division Bench of the Kerala High Court as followed by the learned single Judge of the Madhya Pradesh High Court.
Moreover, it has been rightly pointed out
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by the Division Bench of this Court in Ramesh Singh's case (supra),that the object of the provision for pre-deposit is also to discourage frivolous appeals.
In the light of the aforesaid discussions both the interlocutory applications are dismissed and the appellant is directed to deposit the statutory amount within a period of three weeks from today.
Put up the main appeal under the heading "For Hearing Under Order 41 Rule 11 C.P.C." on 22.2.2010.
( Ramesh Kumar Datta,J.) A.F.R./Vps