National Insurance Co. Ltd. Vs. Shri Madhusudhan Parmeshvarmenon - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 2), clearly suggests on the head of limits of liability to be such an amount as is necessary to meet the requirement of the motor vehicles act, 1939. section 95(2)(b)(ii) of the act says that when the vehicle is a passenger vehicle, in which the passengers are carried for hire or reward, the liability in respect of passengers is limited to rs. 3 and 4 did not cooperate and failed to lead evidence before the tribunal.g.d. kamat, j.1. the appellants, national insurance co. ltd., being aggrieved by the award dated 1st august, 1988, made in claim petition no. 69/85 by motor accident claims tribunal, file the present appeal.2. claim petition was instituted by the first respondent, who was an employee of madras rubber factory, claiming a sum of rs. 97,900/- as and by way of compensation in respect of an accident that he met on 3rd march, 198s, out of the use of motor vehicle and as a result of which he had suffered fracture injuries to his left hand. respondent no. 1/original claimant boarded passenger bus no. gds-1819 (gulmohar) and as the bus was already over-crowded he was standing close to the door. according to him, when the bus reached near gurti it suddenly swerved to the left side in a rash and negligent manner, with a view to make way for the on-coming vehicle and thereby violently dashed against an electric pole. the sudden impact made the respondent no. 1 fall out of the bus and in the result he suffered fracture of the humerus and fracture of the colcannon.3. the claim was contested by the respondents no. 2 and 3, driver/owner and appellants/insurers. a plea was taken on behalf of the appellants that in terms of the policy covering the bus bearing nq. gds-1819, the passenger liability cannot exceed rs. 15,000/ - per passenger in one accident. the claim for compensation as raised by the respondent no. 1 was also challenged on the ground that the same is excessive, regard being had to the injury suffered and the manner in which the accident had occurred.4. the presiding officer by the impugned award on coming to the irresistible conclusion and finding that the bus in question was driven rashly and negligently, awarded a compensation of rs. 60.000a to be paid jointly and severally by the appellants and the respondents no. 2 and 3, with 12% interest from the date of the claim petition till complete satisfaction. in fact, the tribunal assessed the compensation at rs. 65,000/- and held that the same is liable to be slashed by 10% on the ground that the respondent no. 1 is getting 2. a lump sum award and that way adjudicated the compensation at rs. 60,000/-. the break-up of the compensation is :1. rs. 10,000/- ... expenses for treatment, travelling and lossof salary for six months.2. rs. 20,000/- ... for pain and suffering, besides shock.3. rs. 20,000/- ... for loss of normal amenities and/or leadingnormal life and disability suffered for someperiod of time immediately after the accident.4. rs. 15,000/- ... by way of another special compensation.5. indeed the factum of accident has not been disputed by the appellants. mr. gude, learned counsel appearing for the appellants/insurers says that the tribunal has overlooked that respondent no. 1 was a passenger and in terms of the conditions incorporated in the policy of insurance, the liability of the appellants cannot exceed rs. 15,000/-, that being the passenger liability. he therefore says that the tribunal could not have directed the appellants to pay the awarded compensation of rs. 60,000/- jointly and severally with respondents no. 2 and 3.6. there is a lot of merit in the grievance made by the appellants/insurers. a bare perusal of the insurance policy produced on record, exhibit 30, on behalf of the appellant- insurance company, by shri lawrence fernandes (r.w. 2), clearly suggests on the head of limits of liability to be such an amount as is necessary to meet the requirement of the motor vehicles act, 1939. section 95(2)(b)(ii) of the act says that when the vehicle is a passenger vehicle, in which the passengers are carried for hire or reward, the liability in respect of passengers is limited to rs. 15,000/- for each individual passenger. in other words, section 95(2)(b)(ii) which is the statutory liability, is tacitly incorporated in the policy. admittedly, respondent no. 1 was a passenger in that bus and therefore, the liability of the appellants/insurers cannot exceed rs. 15,000/- as and by way of maximum passengers liability.7. counsel for the appellants then made a grievance that the compensation of rs. 60,000/- awarded in favour of respondent no. 1 is excessive and that way not just and reasonable compensation, having regard to the injury suffered by respondent no. 1. mr. gude says that it is open to the appellants to challenge the quantum of compensation because respondents nos. 3 and 4 did not cooperate and failed to lead evidence before the tribunal.8. upon being thrown out of the bus after the violent impact of the bus against an electric pole, claimant suffered fracture of the humerus and colcannon of the left hand. claimant did examine dr. suresh k. sardessai, who had rendered surgical assistance in addition to dr. soares. the medical evidence suggests that on 22nd march, 1985, fixation of the colcannon was done and fracture of the humerus was treated by close reduction. patient was again re-admitted on 13th april, 1985 due to non-union of humerus, with the result he was again operated on 15th april, 1985 and this time open reduction internal fixation and bone grafting were performed. the fracture did not unite, with the result patient was re-admitted on 19th june, 1986 and he was operated for the third time on 23rd june, 1986 and thereafter was directed to attend the out-patients' department. 5. indeed it must be stated that there is no medical evidence that respondent no. 1 suffered any permanent disability. the respondent no. 1 had claimed a total compensation of rs. 97,900/- which included a claim of rs. 20,000/- on the grounds of loss of confidence and rs. 50,000/- for loss of efficiency. unfortunately, for the respondent no, 1, there is no cogent evidence' that respondent no. 1 suffered loss of proficiency in work or loss of confidence.9. however, the fact remains that fortunately for respondent no. 1 there is no challenge to the quantum of compensation awarded on behalf of the respondents nos. 2 and 3 with the result we do not propose to interfere with the award of compensation of rs. 60,000/-, though we do not agree that the same could be justified on sub-heads as adjudicated by the tribunal.10. upon our query whether the respondents nos. 2 and 3 would be able to satisfy the award for the balance amount upon restricting the liability of the appellants to rs. 15,000, mr. gude very fairly stated that respondents nos. 2 and 3 may not be able to satisfy the award for the remaining amount of rs. 45,000/-. this has given us some anxiety that respondent no. 1 may not be in a position to recover a substantial part of the amount of compensation from respondents nos. 2 and 3 jointly and/or severally. in our, view, therefore, a direction will have to go to the appellants/insurers to make an ex gratia payment of rs. 15,000/- without bearing interest, to the first respondent, in addition to their liability of rs. 15,000/- under the policy. the result is the appeal succeeds. the impugned award dated 1st august, 1988 shall stand modified. the compensation of rs. 60,000/- awarded by the tribunal is maintained, but the liability of the appellants/insurers is limited to rs. 15,000/- only and the balance of rs. 45,000/- shall be paid jointly and severally by the respondents nos. 2 and 3. needless to say the same to bear interest at the rate of 12% per annum from the date of claim petition until payment. the costs of rs. 3,000/- awarded by the tribunal are also maintained. the appellants to share costs in proportion to their liability. in addition, the appellants are directed to pay rs. 15,000/- by way of ex gratia payment to respondent no. 1, which shall not bear any interest.