New India Assurance Co. Ltd. Vs. Maharbano Sultanabi Rajjakkhan Pathan and ors. - Court Judgment

Excerpt:
- section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - the learned member of the motor accidents claims tribunal, in para 13 of his judgment, has dealt with this contention very well and he was at pains to point out that though in written statement, the insurance company had contended that its liability was to the extent of rs. under section 95 of the motor vehicles act, 1939) as well as under the policy of insurance, the limit of liability would be to the extent of rs.h.h. kantharia, j.1. this is the first appeal by insurance company against the judgment and order dated 26th august, 1985 passed by the learned member of the motor accidents claims tribunal, dhule, in motor accidents claim petition no. 35 of 1983.2. the short facts giving rise to the appeal are that deceased rajjakkhan, aged about 27, who was working as marketing manager in kiran bidi karkhana at dhule and was getting a monthly income of rs. 1,000/-, met with an accident on 10th january 1983 when he was returning from village nihalod after attending a marriage ceremony. he was travelling with others in auto rickshaw no. mts 5361 owned by respondent no. 5, ratan motiram mahajan, and driven by respondent no. 6, ramesh baburao gurao. as a result of he head injuries sustained by him in the accident, he died on 11th january, 1983 at civil hospital, dhule. therefore, respondent nos. 1 to 4, being the wife and children of the said rajjakkhan, filed application for compensation before the motor accidents claims tribunal, dhule, claiming rs. 1,00,000/- from the owner and driver of the vehicle and the appellant, new india assurance co. ltd. the claim of the claimants was resisted by the owner and the driver of the vehicle in question on the ground that the accident did not take place on account of rash and negligent driving of the vehicle. the appellant-insurance company's contention was that at the time of the accident, the driver committed a breach of conditions of the insurance policy which permitted only three persons to be carried in the vehicle whereas six persons were carried at the relevant time. according to the appellant, in view of the breach of the condition of the policy, the insurance company was not liable to pay any compensation. at the same time, it was further contended that the liability of the insurance company was limited to rs. 15,000/- only.3. on appreciation of the evidence adduced before him, the learned member of the motor accidents claims tribunal came to the conclusion that the claimants proved that deceased rajjakkhan died on account of the rash and negligent driving of vehicle no. mts 5361 by opponent no. 2 as the driver of opponent no. 1 and that the accident had not taken place on account of the negligence of the deceased. the learned member of the tribunal further held that the insurance company could prove that there was breach of policy condition as stated in para 7 of the written statement but still the insurance company was liable to pay compensation. in the result, the claim, of the claimants to the extent of rs. 33,000/- was allowed and the insurance company and the driver and the owner were ordered to pay jointly and severally the sum of rs. 33,000/- as specified in the impugned judgment and order with interest at the rate of 6% per annum from the date of application till payment was made.4. being aggrieved, the insurance company filed the present appeal.5. now, the only contention raised by mr. trivedi, learned counsel appearing on behalf of the appellant-insurance company, is that the liability of the insurance company was only to the extent of rs. 15,000/- under section 95 of the motor vehicles act, 1939 as also under the policy of insurance. we carefully examined the contention raised by mr. trivedi and we are unable to persuade ourselves to agree with him. the learned member of the motor accidents claims tribunal, in para 13 of his judgment, has dealt with this contention very well and he was at pains to point out that though in written statement, the insurance company had contended that its liability was to the extent of rs. 15,000/- only, during the course of the arguments its learned advocate conceded that the limit of liability would be to the extent of rs. 50,000/- in case of third parties. the learned member of the tribunal has correctly pointed out that even under the statute (i.e. under section 95 of the motor vehicles act, 1939) as well as under the policy of insurance, the limit of liability would be to the extent of rs. 50,000/- and since the amount awarded to the claimants was less than rs. 50,000/-, the insurance company was liable for the amount awarded to the claimants. we do not see any reason to interfere with this finding arrived at by the learned member of the motor accidents claims tribunal and find no merits in the contention raised by mr. trivedi.6. appeal thus fails and the same is dismissed with costs.7. certified copies of this judgment to be furnished to the parties expeditiously, out of turn.