Balasaheb Shamrao Salunkhe, Decd. thru' Lilavati B. Salunkhe and Ors. Vs. Laxmibai Yashwant Jadhav and Ors. (28.08.2009 - BOMHC) - 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - mtl-708 well within the speed limits and by taking due care and caution. 10,000/-towards the loss of love, affection, society and consortium. 2, that the tribunal's appreciation of evidence is contrary to the law laid down in various judgments of the supreme court as well as this court. according to the learned advocate in the present case the insurance company has failed to lead evidence to substantiate it's case and, therefore, the tribunal has wrongly cast the entire responsibility of payment of compensation on the appellants. the insurance company having failed to do so could not, therefore, have been absolved of its responsibility for payment of compensation.nishita mhatre, j.1. the first appeal has been filed against the judgment and order of the motor accident claims tribunal, sangli in motor accident claim petition no. 224 of 1987. the tribunal while allowing the claim has directed that the compensation of rs. 82,000/-inclusive of the compensation on account of no fault liability together with proportionate costs and interest @ 12% p.a. from the date of the petition was payable to the claimants i.e. respondent nos. 1 to 3 in the present first appeal. however, the tribunal has directed that the amount shall be paid jointly and severally by respondent nos. 1 and 2 in the claim petition i.e. the appellants herein. the claim petition was dismissed against respondent nos. 4 to 6 herein, absolving the insurance company of any liability for payment of compensation.2. the facts giving rise to the present first appeal are as follows:3. mr. yashwant jadhav was working with the jan seva dudh utpadak purvatha sahakari society ltd., kasbe digraj. he was being paid a monthly salary of rs.350/-. his working hours were between 6 a.m. to 9 a.m. and 4 p.m. to 7 p.m. in his spare time he was running a grocery shop from his house. he intended to start a flour mill and, therefore, he had started constructing a shed. on 7th june, 1987, he went to sangli to purchase material for erecting the shed. after making the purchases, he engaged a tempo being no. mwe-1957 owned by the appellant no. 1 herein for transporting the goods to his village, the said digras. yashwant jadhav traveled in the tempo hired by him as the owner of the goods which were being transported. it appears that when the tempo in which he was travelling reached near the village kasbe-digraj, truck no. mtl-708 which was plying just ahead of the tempo in which yashwant jadhav was travelling suddenly halted, without signaling. as a result, the tempo in which the deceased yashwant jadhav was travelling dashed against the truck bearing no. mtl-708. yashwant jadhav was seriously injured and was removed to the civil hospital, sangli. however, he died soon thereafter. a panchnama was recorded in respect of the place of the accident. respondent no. 4 herein was driving truck no. mtl-708 owned by respondent no. 6. appellant no. 1 owned the tempo no. mew-1957 which was being driven by appellant no. 2 at the time of the accident. the tempo was insured with respondent no. 4 herein.4. the claimants filed an application before the motor accident claims tribunal, sangli, claiming compensation of rs. 1,00,000/-for the death of yashwant jadhav. the claimants are respondent no. 1, the wife of yashwant jadhav, respondent no. 2, their minor daughter and respondent no. 3, the mother of the deceased. compensation was claimed from the owner, driver and insurer of tempo no. mew-1957, in which the deceased was travelling, as also from the owner, driver and insurer of lorry no. mtl-708.5. the appellants herein resisted the claim of respondent nos. 1 to 3 by contending that the accident did not take place due to the rash and negligent driving of appellant no. 2. they admitted that the tempo dashed against the truck but contended that it was because the truck ahead came to a sudden halt without displaying any signal. respondent no. 3 denied its liability to pay compensation. it denied that the deceased was travelling in the tempo as the owner of the goods being transported in the tempo. it was further contended that the deceased was neither a gratuitous, nor a fare paying passenger and, therefore, the insurance company was not liable to pay any compensation. respondent nos. 4 and 6 herein denied that the accident had occurred due to the rash and negligent driving of respondent no. 4. it was contended that respondent no. 4 drove truck no. mtl-708 well within the speed limits and by taking due care and caution. it was contended that the accident occurred due to the negligence on the part of appellant no. 2 who was driving in a high speed and, therefore, dashed against the truck when the truck stopped ahead of the tempo.6. evidence was led by the claimants by examining respondent no. 1 and other witnesses in support of the case of the applicants, including the panch witness.7. an employee from the regional transport office was examined. the driver of truck no. mtl-708 was examined on behalf of respondent nos. 5 and 6 herein. significantly, the insurance company, i.e. respondent no. 4 herein, did not lead any evidence in support of its pleadings in its written statement. the first respondent in her evidence had stated that the deceased was travelling in the tempo alongwith the building material that he had purchased in sangli. this statement of respondent no. 1 has not been shaken during her cross- examination. the panch witness who was witness to the spot panchnama for the accident has denied the suggestion put to him in his cross-examination that the tempo was empty. he has also stated that a few pieces of wood were in the tempo. he has further stated that there were two trucks and one tempo at the site when the panchnama was recorded.8. the tribunal accepted the contention of the claimants that the accident arose because of the negligent driving on the part of appellant no. 2. it held that the deceased was earning rs. 500/-per month which included the earnings that the deceased obtained from the grocery shop that he was running from his house. the tribunal, therefore, held that the loss of income on account of the death of yashwant was about rs. 400/-a month and that he would have contributed about rs. 300/-per month for the upkeep of his family. considering the yearly loss of income and the age of the deceased, the tribunal applied the multiplier of '20' and calculated the compensation as rs. 72,000/-. it further awarded an amount of rs. 10,000/-towards the loss of love, affection, society and consortium. it was, therefore, held that the claimants would be entitled to rs. 82,000/-as compensation. while considering whether the deceased was travelling in the tempo as the owner of the goods being transported in the vehicle, the tribunal held that since the panchnama did not mention anything about goods being transported in the tempo, it could not be believed that the deceased was travelling as an owner of the goods being transported in the tempo. the tribunal then cast the burden on the claimants to prove that the deceased was transporting the goods which he had purchased in the tempo, when he met with the accident. since no evidence had been led, according to the tribunal, by the claimants in that behalf, it was held that the insurance company with which the tempo was insured was not liable to compensate the claimants. the owner and driver of the tempo being no. mwe-1957 have filed the present first appeal being aggrieved by the award.9. it is contended by mr. mankapure, the learned advocate appearing for appellant no. 2, that the tribunal's appreciation of evidence is contrary to the law laid down in various judgments of the supreme court as well as this court. he submits that the tribunal has wrongly cast the burden on the claimants to prove that the deceased was travelling in the tempo as an owner of the goods being transported. according to the learned advocate when the insurance company had raised that defence, it was for the insurance company to substantiate it by leading cogent evidence. he points out that the insurance company in the present case has chosen not to lead any evidence, nor to suggest to the witnesses examined by the claimants that the deceased was not travelling in the tempo as the owner of the goods being transported. he submits that undisputedly the vehicle was insured with respondent no. 4 herein and, therefore, the insurance company would be liable to pay insurance in case of any accident involving a third party. according to the learned advocate in the present case the insurance company has failed to lead evidence to substantiate it's case and, therefore, the tribunal has wrongly cast the entire responsibility of payment of compensation on the appellants. the learned advocate placed reliance on the judgment of the division bench of this court in the case of nasibdar suba fakir v. adhia & co. and ors. reported in 1983 mh.l.j. 647. this court has held while considering the provisions of section 95(1)(b) of the motor vehicles act, 1939 and rule 118 of the bombay motor vehicles rules that a statutory policy covers loss to a hirer of a goods vehicles for carriage of these goods, when loss is caused to such a passenger while travelling in the vehicle, due to the negligence of the driver. it was held that the insurance company is liable to pay compensation in such a case. the learned advocate then relied upon a judgment in the case of national insurance co. ltd. v. swaran singh and ors. reported in : (2004) 3 scc 297. while considering the provisions of the motor vehicles act, 1988, it was held that the insurance company must establish its defence before it can be absolved of the liability of payment of compensation. it is only when such defence is established in the proceedings before the tribunal that the tribunal can discharge the insurance company and fix the liability only on the owner and driver of the vehicle for the tortious act.10. mr. ingle appearing for the respondent nos. 1 to 3 submits that the primary liability for payment of compensation is on the insurance company and in the present case the insurance company has not discharged that liability. he submits that in the event the insurance company is of the opinion that it is not liable due to the various defences which it can possibly raise, the insurance company must first pay the compensation and then recover the same from the owner and the driver of the vehicle. he points out that in the aforesaid judgment of the supreme court various observations to that effect have been made by the supreme court. the learned advocate then submits that because of the quarrel between the owner and the insurance company, the claimants have been denied an amount of rs.82,000/-, inclusive of the no fault liability, from 1987, when the accident occurred.11. the decision of the tribunal regarding the negligence on the part of appellant no. 2 cannot be faulted. nor can the tribunal's finding that the claimants are entitled to compensation as calculated by it of rs. 82,000/-be questioned. the tribunal has arrived at these conclusions on the basis of the evidence led before it. however, the tribunal's finding, that the insurer of tempo bearing no. mwe-1957 is not liable, is unsustainable. a bare perusal of the written statement filed by the insurance company indicates that the insurance company had disowned its liability to pay compensation by contending that the deceased was a gratuitous passenger sitting in the rear of the tempo. the insurance company refuted the contention of the claimants that the deceased was travelling as the owner of the goods which were being transported in the tempo. however, the insurance company has not led any evidence to substantiate its contentions. when pleadings are not substantiated with evidence before the court, it is trite that the court cannot look into such pleadings, nor rely on them as proof of the facts mentioned therein. facts must be proved by leading documentary and/or oral evidence. therefore, it was necessary for the insurance company to prove its contention that the deceased was travelling as a gratuitous passenger in the tempo and not as the owner of the goods being transported in the tempo. the claimants in their evidence had deposed that the deceased was travelling in the tempo while the goods owned by him were being transported to his village from sangli. there is material on record to indicate that the deceased had purchased wood and other material for constructing a shed, in sangli and was transporting these goods to his village. therefore, the onus shifted on the insurance company to prove that the deceased was travelling as a gratuitous passenger. the insurance company having failed to do so could not, therefore, have been absolved of its responsibility for payment of compensation.12. in the case of national insurance co. v. swaran singh (supra), the apex court has observed that the liability of the insurance company is a statutory one and when such liability is denied, the insurance company is required to show that the conditions laid down under section 149(2)(a) of the motor vehicles act, 1988 have been breached. these provisions are equivalent to section 96(2)(b) of the motor vehicles act, 1939 which govern the present case. the supreme court in the same judgment has observed that the provisions of the motor vehicles act for compulsory insurance coverage of all vehicles have been enacted with the paramount object of extending relief of compensation to the victims of the accidents caused by the use of motor vehicles. it has been observed further that the act must be interpreted so as to effectuate the object and policy of the act which is a beneficiant statute. the court has also observed that the statute must be liberally construed as statutory compensation may bring to a large numbers of families of accident victims 'the only ray of light at the end of the tunnel'.13. in nasibdar suba fakir's case, the division bench has already held that rule 118 of the bombay motor vehicles rules allows the carriage of passengers of goods vehicle in certain circumstances. it has been held that there is no prohibition by virtue of anything contained in rule 118 against the hirer of a goods vehicle from travelling in the same goods vehicle. in the circumstances, the tribunal ought to have held that the deceased was travelling with the goods in the hired vehicle as the owner of goods which were being transported in it. no evidence was placed on record by the insurance company to controvert this fact and, therefore, the insurance company was equally liable to pay compensation.14. the first appeal is allowed. the judgment and the award of the motor accident claims tribunal, sangli is modified to the extent that the insurance company, i.e. respondent no. 4 herein, is jointly and severally liable to pay the compensation awarded by the tribunal to the claimants alongwith the appellants herein.15. award modified accordingly.16. the appellants, though directed when the first appeal was admitted, have not deposited the amount of rs. 40,000/-in the trial court. thus, the respondents have been deprived of this amount for over 20 years.17. accordingly, the first appeal is allowed.