Shri Damodar Jaidev Chodankar Vs. Shaileja V. Tamba 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 3,000/- by way of costs in the claim petition as well as in this court.g.d. kamat, j.1. this appeal is by the original claimant who got a nil award made by the motor accident claims tribunal at panaji in claim petition no. 39/87.what made the tribunal reject the claim petition instituted by the appellant is that the appellant did not prove that the accident he met with had been caused by rash and negligent driving on the part of respondent no. 2, driver. the tribunal however, ad castellan assessed the compensation and held that in the event the appellant had succeeded in proving rashness and negligence on the part of the respondent no. 2 driver, then the appellant would have been entitled to a sum of rs. 1,00,000/-.2. appellant asserted in the claim petition that he was working as a cleaner in respect of a goods carrying truck bearing registration no. gdz-7266. according to him, this truck was employed for bringing earth from the quarry at san pedro to be dumped for the new road in the making at merces, ilhas, goa. according to him, he came as a cleaner on that truck on 15th november, 1986 at about 9 a.m. and no sooner that truck came at the site where the earth was to be dumped, he got down from the truck to hand over the slip of having made the trip to one supervisor and as he was returning, another truck bearing registration no. gdt-6203, owned by the first respondent, driven by the respondent no. 2, which had also brought earth for the same purpose, started coming in reverse so violently that the appellant had no escape and got himself hit and crushed there under. he says the respondent no. 2 did not even bother to find out as to what happened to him, despite several people had shouted and gathered at the site but driver went away. the claim petition filed by him prayed for a large compensation of rs. 3,49,000/-.3. in support of the claim petition, the appellant examined himself and gave details of the manner in which he was hit by the truck bearing registration no. gdt-6203 while coming in reverse and not even paying heed to the shouts made by some persons who were nearby. he gives details as to the injuries suffered by him including fracture of the pelvic bone and the crushing injury to the urethra. he then gave details as to how he was lodged at the goa medical college hospital for a period of one and half months and where after he was shifted to dr. talaulikar hospital at panjim where he remained there for another two and a half months. in his deposition he further says that from talaulikar's hospital at panaji he was shifted to a private nursing hospital at sion where he was required to stay for another long period. according to him a large amount of expenditure had to be incurred by him, his mother and also by his employer who is cl.w. 2, vinayak poi bir. during the time he was in the hospital, according to him, a helper was made to assist him who was paid rs. 25/- per day as and by way of his wages. he however admits that this helper was not employed during all the days as sometimes either his mother or his sister used to be with him in the hospital.4. cl.w. 2 vinayak poi bir, who is the owner of the truck bearing registration no. gdz-7266, says that he had employed the appellant as a cleaner and he was working on his truck some one year prior to the date of the accident which took place on 15th november, 1986. according to the witness the wages of the appellant were rs. 450/- per month. he otherwise corroborates the statement of the appellant viz. hospitalization at goa medical college hospital. dr. talaulikar's hospital and also at sion hospital at bombay for about two months. mr. bir asserts that he has spent nearly rs. 35,000/- for transport, maintenance, medical fees, medicines, etc. on the aftermath of the accident that had occasioned to the appellant.cl.w. 3 is santosh shet, who asserts that lie used to help the appellant and he was being paid rs. 25/- per day and this he did for some days when the appellant was either at goa medical college hospital or at dr. talaulikar's hospital.the fourth witness is cl.w. 4, dr. nachinolkar, who is the professor and head of the department of orthopaedic surgery, goa medical college, hospital. he confirmed that the appellant was admitted in the general surgery ward on 15th november, 1986 with type 2 fracture of pelvis and rupture of urethra and bulbar portion. doctor says that as far as the fracture of the pelvis is concerned, it was treated conservatively in the orthopaedic department, but the patient was referred to general surgery for rupture of urethra and the appellant was treated by dr. oswaldo d'sa. doctor confirms that the fractured pelvis would normally heal within a period of six weeks, thereby leaving no permanent disability.dr. oswaldo d'sa, cl.w. 5, who is the next witness speaks about the appellant being admitted to the surgical ward on 15th november, 1986 and his discharge on 2nd january, 1987. according to him, the chief complaint of the vehicular accident insofar as the appellant is concerned was the inability to pass urine. he found bladder distended and guarding of the abdominal wall was present. the doctor affirms that emergency operation was performed and the following was discovered:1. haematoma in space of rotzurs, extending into retro-peritoneal space,2. blood in peritoneal cavity present (about 400 c.cs). extensive retro peritoneal haematoma extending into the chest cavity and into the layers of mescaline and mesentery contusion of peritoneum on right side,3. bladder distended,4. rupture of urethra at bulbar region with extravasation in per urethral tissues.the doctor says that though the post-operative recovery was smooth, patient had to be discharged with supra public catheter and advised to be admitted after three or four months for management of rupture of urethra. this doctor thereafter says rupture of urethra can have a number of side effects, such as (1) stricture urethra,(2) impotency and (3) sterility. doctor was however, not in a position to know as to what side effects the appellant was suffering as an aftermath of the accident. nothing remarkable was elicited in the cross--examination of the doctor. the doctor has proved certificates which had been issued by him on 27th july, 1987.ulhas metri, cl.w. 6, is a panch witness and he produced panchanama and it may be mentioned in favour of the respondents that the panchanama reveals nothing. there was not even a mark at the side of the accident.this is obviously so. we have already mentioned that the new road was in the making and continuously earth was being dumped, with the result no traces of the accident might have been left. apart from this evidence, no other evidence has been adduced on behalf of the appellant.5. on behalf of the respondent evidence has been adduced of tulshidas koulekar (r.w. 1). he claims to be the supervisor at the side of the husband of the first respondent. according to him, on 15th november, 1986. when the road filling was going on for the new road to the mandovi bridge, several trucks used to come with the mud and empty the same at the side. according to him, the truck belonging to respondent no. 1 bearing no. gdt 6203 was coming in reverse gear guided by labourers working at the site. at that time he says the appellant came running by the side and whilst running he skidded and fell down near the rear wheel of that truck. as the applicant fell down he says that he shouted at the truck driver to stop and the truck stopped and he himself gave first aid to the appellant. in cross-examination, this witness koulekar says, 'i say that when the truck was coming in the reverse no cleaner was present but the labourers who were at the back were guiding the driver while taking back the vehicle.' he however denies that respondent no. 2 driver ran away with the truck after the accident. driver was never examined before the tribunal.what is however relevant from the evidence of witness koulekar is that admittedly there was no cleaner for this truck and when the truck was moving in reverse the driver was being guided by the labourers present at the site. the fact however remains that no labourer has been examined to suggest in what manner labourers used to guide the truck whilst moving in reverse. it is otherwise common knowledge that a driver of a truck is handicapped when the truck moves in reverse gear as he is unable to see the rear side and he requires the assistance of some other person who must be at the back of the truck to guide the movement of the truck in the reverse. it is not known in what manner and circumstances there had been assistance to guide the driver of the truck belonging to respondent no. 1. such serious matters are not left to labourers to guide drivers of the truck to make movement of the truck in reverse gear.6. from the oral evidence that is referred to above, it is clear that barring the story of the appellant there is no evidence worth the name to suggest that the appellant came under the wheel of the truck driven by respondent no. 2 on the unfortunate day. the fact however remains that the story of the appellant vis-a-vis the accident stands corroborated by the injuries suffered by him. the fact further remains that the appellant was admitted to goa medical college hospital and this has been spoken to by two surgeons namely ci. w. 4 dr. nachinolkar and ci.w. 5 dr. oswaldo. strictly taking, a technical view, the tribunal may be right in pointing out that there is no cogent evidence for establishing that the truck driven by the respondent no. 2 while taking reverse was in a rash and negligent manner, but in our view the fact that the appellant sustained the type of injuries that he sustained, more particularly the fracture of the pelvis and crushing injury of urethra, is a clear indication that the truck must have moved in great speed while reversing itself after either unloading the earth which it had brought, or it was going back for another trip after the process of unloading had been completed. once the injuries and the medical evidence corroborate the appellant, we do not have any iota of doubt that the appellant met with an accident on that unfortunate day and he was crushed partially under the wheels of gdz 6203. mr. padyar for the respondents nos. 1 and 2 and mr. afonso, for the respondent no. 3 insurer, did try to suggest that there were no external injuries whatsoever suffered by the appellant. we are not at all impressed by what is pointed out to us. it must be firstly seen that the appellant is a young person, who is aged anywhere between 15 to 18 years and probably as a young man the only injuries he suffered are the internal injuries and as luck would have it, he did not suffer any external visible injuries. we are entirely in agreement with the learned counsel for the respondents that there is nothing on record to suggest that the appellant has suffered any permanent disability. though an attempt is sought to be made when the present appeal was filed that the appellant is suffering from impotency, the fact remains that neither before the tribunal, the appellant asserted impotency, nor produced any medical evidence that he suffers from any such disability. we are, therefore, performed to hold that there is not even sketchy evidence on this aspect. the only point in favour of the appellant is that doctor oswaldo d'sa has categorically made statement in his evidence that injuries suffered by the appellant can lead to impotency. therefore, the statement made by the appellant in his memo of appeal carries considerable weight.7. we have gone through the determination of compensation by the tribunal. mr. sonak, learned counsel appearing for the appellant, has fairly conceded that he cannot support the different sub-heads on which the compensation was otherwise assessed though, finally, the award rendered by the tribunal was nil. in our view, taking into consideration all the facts and circumstances of this case and more of a beneficial view, the appellant is liable to be compensated by a sum of rs. 30,000/- which is a just and reasonable compensation. needless to say that the same shall bear interest at the rate of 12% per annum from the date of claim petition till payment.8. accordingly, this appeal succeeds, the impugned award dated 10th july, 1990, is quashed and set aside in claim petition no. 39/87. the said claim petition is partly allowed and a sum of rs. 30,000/- is awarded and the respondents are directed to pay the same jointly and severally to the appellant, together with interest at the rate of 12% per annum from the date of claim petition till payment together with rs. 3,000/- by way of costs in the claim petition as well as in this court. since the impugned award is within the limits of liability of respondent no. 3, insurance company, they are directed to deposit the sum within six weeks from today in this court.