Pareshbhai Raojibhai Patel Vs. Maharashtra State R.T.C. 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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.h.h. kantharaia, j.1. the appellant, pareshbhai raojibhai patel, was on 8th june, 1977 travelling by motor car bearing no. gjh 2115 and was going from mahableshwar to goa. the said car was being driven by respondent no. 3 whereas respondent no. 4 was the owner of the said car. the car was insured with respondent no. 5, united fire and general insurance co. ltd., having its branch office at sunil chambers, station road, anand, district kaira in the state of gujarat. when the car was going from sawantwadi to vengurla, a bus bearing no. mhg 8461 belonging to respondent no. 1, the maharashtra state road transport corporation, came from the opposite direction. the bus was driven by respondent no. 2, dhondiram shivaji majhalkar, whose name has been deleted by the order of the additional registrar dated 8th october, 1985. the accident took place at that time on account of which the appellant lost one eye and suffered 50% permanent disability. he, therefore, made an application for compensation of rs. 1,00,000/- before the motor accident claims tribunal at ratnagiri. his claim was resisted in toto both by respondent no. 1 and respondent no. 5 on the ground that the drivers of both vehicles were not negligent and that the claim as contended by the appellant on his monthly income was not acceptable and should be rejected.2. on appreciation of the evidence adduced before him, the learned member of the motor accident claims tribunal came to the conclusion, by the impugned judgment and order, that the appellant proved that respondent no. 2 rashly and negligently drove the s.t. bus and dashed against the car in which the appellant was travelling on account of which the appellant sustained injuries. according to the learned member of the tribunal, the appellant further proved that respondent no. 3 was also rash and negligent in driving the car in which the appellant was travelling and, therefore, the accident and injuries sustained by the appellant. it was, therefore, held that the appellant was entitled to a claim of compensation of rs. 55,000/- payable equally by respondent nos. 1 and 5.3. being aggrieved, the appellant filed this appeal contending that the compensation awarded to him was short by rs. 45,000/-.4. at the hearing, mr. trivedi, learned advocate appearing on behalf of the appellant, urged that regard being had to the monthly income of the appellant at the time of the accident and the loss of one eye and permanent disability to the extent of 50%, it would have been just, fair and proper that the appellant should have been granted a compensation of rs. 1,00,000/- and, therefore, this court should enhance the compensation from rs. 55,000/- to rs. 1,00,000/- and direct that respondent nos. 1 and 5 should equally pay up the remaining amount of rs. 45,000/- to the appellant. no arguments were advanced on behalf of either side about the rash and negligent act of driving the vehicles by respondent nos. 2 and 3. resisting the appeal, mr. naik appearing for respondent no. 1 and mr. kudroli appearing for respondent no. 5 urged that regard being had to the facts and circumstances of this case, the amount of compensation should not be enhanced and the appeal be dismissed.5. now, it is to be noted that the appellant had demanded rs. 30,000/- for the medical expenses but could only produce documentary evidence to the extent of rs. 3,452.47 and the learned member of the tribunal was not wrong in rounding up the amount of compensation on account of the medical expenses to rs. 5,000/-. he rightly added a sum of rs. 5,000/- on that account as the medical practitioner who had treated the appellant, who was examined at the trial, deposed that a bill of rs. 5,000/- could not be paid by the appellant. therefore, the learned member of the tribunal granted a sum of rs. 10,000/- as expenses incurred over the medical treatment by the appellant. this has not been disputed by either side.6. then, taking into consideration the fact that the appellant was earning a monthly salary of rs. 500/- and an yearly income of rs. 500/- from a partnership and taking into consideration the further fact that the appellant had suffered permanent disability to the extent of 50%, the learned member of the tribunal granted him an amount of rs. 5,000/- for pain and agonies and further compensation of rs. 40,000/-. thus, in all the appellant was awarded total amount of rs. 55,000/- as compensation.7. on going through the record and hearing learned counsel appearing on all sides, we are of the opinion that so long as the amount of rs. 10,000/- towards medical expenses and rs. 5,000/- for pain and agony is concerned, neither any controversy was raised before us nor do we find any material so as to interfere with the finding arrived at tby the learned member of the tribunal in this regard. however, in our opinion, the learned member committed errors in granting general compensation of rs. 40,000/- only on account of the permanent disability sustained by the appellant. admittedly, the appellant was earning rs. 500/- per month leaving aside the travelling and daily allowances which he was getting whenever lie was on duty out of the town. he was, at the time of the impugned judgment 30 years old and the learned member of the tribunal considered the longevity of an indian at that time as 65 years which is also not disputed before us. thus, the learned member of the tribunal came to the conclusion that the appellant had to suffer permanent disability at least for 35 years more to come. now, if the appellant was able to work for 35 years more on a rounded up figure of rs. 500/- per month, he would have earned rs. 2,10,000/-. since he had suffered 50% permanent disability, he would be normally at least be entitled to a sum of rs. 1,05,000/- as general compensation. therefore, ordinarily we would have raised the general compensation from rs. 40,000/- to rs. 1,05,000/- and would have thus granted further compensation of rs. 65,000/- to the appellant. however, the appellant has restricted his claim only to rs. 1,00,000/-. he has been awarded compensation of rs. 55,000/-. therefore, it would be just, fair and proper that we grant him additional compensation of rs. 45,000/-.8. in the result, the appeal succeeds and it is allowed in the terms aforesaid. respondent nos. 1 and 5 are hereby directed to pay up the appellant a further sum of rs. 45,000/- equally (i.e. rs. 22,500/- each) within a period of one month failing which they shall be liable to pay interest at the rate of 18% to the appellant effective from december 24, 1993. no order as to costs.