Shaikh Adam Vs. Joseph Franco 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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 tribunal clearly rendered a finding that the first respondent driver, who was on the relevant day driving the pickup, was negligent and that way the tribunal held that the respondents were liable to pay damages for the rash and negligent act. 10,500/- by way of compensation which is inclusive of both special as well as general damages. 1,500/- towards the other expenses like conveyance for going to the hospital, medicines, etc.g.d. kamat, j.1. appellant met with an accident on 31st december 1982 at about 5.30 p.m. while he was driving his rickshaw from ribandar to panaji. he instituted a claim petition claiming a large amount of rs. 1,75,000/- as compensation with a story that he became the victim of the accident as result of pickup bearing no. gds 1573, driven by the first respondent and owned by the second respondent, dashing against his rickshaw. it was averred in the petition that the pickup was trying to overtake another vehicle which was going ahead of him and that is how the collision took place. as a result of the accident he suffered a fracture of the right femur bone and contused lacerated wounds over the left thigh and leg. he also claimed damages in respect of the rickshaw bearing no. gdt 4589 of which he was the driver and which was owned by his father.2. the claim was contested by the driver, owner of the pickup as also the insurer. the tribunal clearly rendered a finding that the first respondent driver, who was on the relevant day driving the pickup, was negligent and that way the tribunal held that the respondents were liable to pay damages for the rash and negligent act. the tribunal awarded in all a sum of rs. 10,500/- by way of compensation which is inclusive of both special as well as general damages.3. regard being had to the grievances made in this appeal it is necessary to set out the amount of compensation given on the heads of (1) special damages and (2) general damages. the claimant/appellant asserted that he was a regular driver of the rickshaw, he was making a net profit of rs. 1,000/- to rs. 1,500/- per month. the tribunal, however, held that since the appellant was driving his father s rickshaw, his net income could not exceed a sum of rs. 500/- per month. having regard to the evidence that the appellant was immobilized for a period of 8 months, the tribunal thought it fit to grant a sum of rs. 4,000/ - for the loss of wages for that period. the tribunal in addition granted compensation in the amount of rs. 1,500/- towards the other expenses like conveyance for going to the hospital, medicines, etc. a sum of rs. 5,000/- was given on the head of pain suffered, shock and discomfort together making a sum of rs. 10,500/- with interest at the rate of 8% p.a.4. this award is attacked in the present appeal by the appellant on the ground that the compensation awarded is unreasonably low and not commensurate with the facts and evidence on record that the appellant was immobilized for a period of 8 months and that he may further require surgical intervention for removal of the nail inserted when an operation had to be performed on him soon after the accident.5. we have seen the evidence of the appellant/claimant as also the evidence of dr. u.g. nachinolkar (aw. 2), who is the professor of orthopedic department attached to the goa medical college hospital. doctor's evidence establishes that an emergency operation had to be performed on the right femur with high tibial pin traction followed with open reduction and internal fixation of right femur using knitter nail. doctor affirmed that in august 1983 when he had occasion to see the claimant, that is to say, nearly 8 months after the operation, he did not find any permanent disability but at the same time doctor affirmed that at the time of discharge of the claimant on 5th february 1983 both his legs were tied to an abduction bar in order to immobilize the injured leg and that the claimant continued in that position for about a month. according to the doctor a patient in such condition remains totally immobilized and he is required to be bodily lifted and carried away if the need arises.6. shri lotlikar, learned counsel for the appellant original claimant, complains that when the claimant was immobilized for a period of 8 months and even on the assumption that everything is alright with the claimant after 8 months, according to him, by the time he re-establishes his business it takes another period of not less than 6 months. in such eventuality, according to him, even that period is necessary to be considered for the purpose of calculating loss of wages. shri lotlikar also attacked the sum of rs. 5,000/- granted on the head of general damages qua pain, suffering and shock. in our view there is merit in what is contended before us. when a person is immobilized for a period of 8 months continuously and, on the top of it, when the two legs of the person are tied with a view to completely immobilize him on a bed, the mental agony, discomfort, pain and suffering have to be imagined to be felt and believed. in any case a period of 8 months in an immobilization condition is not a small period and it must be held that a patient suffers more when he is immobilized. in our view a reasonable compensation on the head of pain, suffering, discomfort and loss of amenities during that period is required to be considered in a proper perspective and a just compensation is required to be arrived at.7. shri afonso, appearing for the respondents no. 3 insurance company, very strongly contended that once the doctor had negatived permanent disability, there is no question of re-opening all that is awarded in the present appeal. according to him the sum of rs. 5,000/- given on the head of pain, suffering, discomfort cannot be faulted with as long as the victim has not suffered any sort of disability. during the course of the hearing he made a statement that the insurance company has already paid out the entire amount as awarded by the tribunal in an amount of rs. 15,315/- and no interference is called for in this appeal.8. we are unable to agree with shri afonso that the compensation awarded in the amount of rs. 5,000/- on the head of pain, suffering and discomfort is just. we have already highlighted earlier that though there is no evidence of permanent disability, there is no dispute that the appellant was immobilized admittedly for a period of not less than 8 months and even at the cost of repetition, his two legs were tied in the air to an abduction bar for a period of one month. therefore, in our view a direction to the respondents to pay another sum of rs. 20,000/- with no further interest will meet the just requirement of the case from every point of view. we, therefore, accordingly direct the respondents to jointly and severally pay a sum of rs. 20,000/- within a period of 8 weeks from today. needless to say that the sum of rs. 15,315/- which has already been paid is not affected. appeal to the extent indicated partly allowed. there shall be no order as to costs.