Subhash Vs. Kiran 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - no doubt, the powers under article 226 of the constitution can very well be exercised by the court in case of error of law apparent on the face of record or error of jurisdiction. if powers under articles 226 and 227 of the constitution of india are allowed to be exercised, then the entire scheme envisaged in section 173(2) of the motor vehicles act, 1988, will be defeated. soman receive very strong support from the cases relied by them.b.b. vagyani, j.1. heard learned advocate mr. r.r. mantri for the petitioner, learned advocate mr. y.p. pawar, for respondent nos. 1 to 3, learned advocate mr. v.n. upadhye, for respondent nos. 4, 5 and 7 and learned advocate mr. d.v. soman, for respondent no. 6.2. petitioner is owner of the jeep no. mh 20-a 1293 which is duly registered as taxicab to carry passengers. the said vehicle was admittedly insured with respondent no. 6, i.e., united india insurance co. ltd., aurangabad, including the risk of life or bodily injury to its passengers and the driver. the insurance policy was valid up to 11.1.1994. the petitioner had employed duly licensed driver to ply the taxi as per the permit.3. on 18.6.1993, the taxi was proceeding towards sillod on aurangabad-jalgaon road. a truck bearing no. mwp 1885 dashed against the taxi near ganori phata. at the relevant time, budhan khan was driving the truck which was owned by respondent no. 5. the truck was insured with respondent no. 7. on account of rash and negligent driving of the respondent no. 5, accident occurred in which the taxi driver died. passengers in the taxi suffered injuries. respondent nos. 1 to 3, who suffered injuries, have filed claim petitions bearing nos. 282, 305 and 309, all of 1993, before the motor accidents claims tribunal, aurangabad. the tribunal held that the drivers of both the vehicles involved in the accident were equally rash and negligent and allowed the claim petitions filed by respondent nos. 1 to 3. the insurance company has been exonerated on the ground of breach of terms of policy. the tribunal awarded rs. 7,500 each to respondent nos. 1 and 2 and rs. 900 to respondent no. 3.4. the petitioner, who is owner of the taxi, had filed review petitions before the tribunal, however, the tribunal dismissed the review petitions by order dated 31.7.1999. as the compensation awarded by the tribunal is less than rs. 10,000, appeal is barred under section 173(2) of the motor vehicles act and, therefore, the owner of the taxi has filed writ petition under articles 226 and 227 of the constitution of india.5. learned advocate mr. r.r. mantri submitted that the tribunal has exonerated the insurance company on account of wrong approach. according to the learned advocate mr. r.r. mantri there was no breach of policy. if excess passengers were found in the taxi it would be at the most a breach of permit. this aspect has not at all been properly considered by the tribunal and, therefore, the order of exoneration of the insurance company is liable to be modified as insurance policy was in force on the date of the accident. therefore, the liability should have been imposed on the insurance company.6. learned advocate mr. mantri also submits that this court issued rule and, therefore, the question of maintainability of the writ petition in the light of section 173(2) of the motor vehicles act 1988 is not open to the respondents. in order to support his submissions, he has relied upon harishankar ramswarup jaiswal v. commissioner of prohibition and excise bombay 1997 (1) mh lj 460 wherein this court while interpreting the powers under article 226 of the constitution of india has held that once the high court chooses to entertain the writ petition and admits the same, then the defence of laches cannot be raised by the other side. it is further observed that it will be deemed that the court entertaining the petition and admitting the petition has ignored the laches. the court ultimately held that where there is patent injustice, the technical plea of laches or res judicta, etc., will not be allowed to defeat the petitioner's case.7. on the other hand, learned advocate mr. v.n. upadhye and mr. d.v. soman, representing two different insurance companies, forcefully argued that when compensation awarded is less than rs. 10,000, the appeal is not provided by section 173(2) of the motor vehicles act, 1988. in order to buttress their submissions, they heavily relied upon following cases:(1) oriental insurance co. ltd. v. motor accidents claims tribunal thalassery .(2) national insurance co. ltd. v. vipul .(3) new india assurance co. ltd. v. member, m.a.c.t. udupi : 2001(2)karlj629 .8. i gave anxious consideration to the rival submissions made at the bar. the short point that arises for consideration is as to whether it is proper to invoke jurisdiction under articles 226 and 227 of the constitution of india when correctness of the award is challenged wherein compensation awarded by the motor accidents claims tribunal is admittedly less than rs. 10,000. the statute has created a bar with regard to maintainability of the appeal by virtue of section 173(2) of the motor vehicles act, 1988, when the compensation awarded by the claims tribunal is less than rs. 10,000. the intention behind creating a bar is to attach finality to the award wherein the compensation is less than rs. 10,000. with this intention, the bar is created. under the circumstances, the powers under article 226 or under article 227 cannot be exercised to enable a party to widen the scope of his defence contrary to and in defiance of the provisions of law and the scheme of the law. no doubt, the powers under article 226 of the constitution can very well be exercised by the court in case of error of law apparent on the face of record or error of jurisdiction. in the case in hand, there is no error of law apparent on the face of record. the impugned award does not at all suffer from any jurisdictional error. under the circumstances, it is not permissible to frustrate the scheme provided by law. if powers under articles 226 and 227 of the constitution of india are allowed to be exercised, then the entire scheme envisaged in section 173(2) of the motor vehicles act, 1988, will be defeated. if regard is had to the legal scheme with regard to conferment of finality to the awards, which are less than rs. 10,000, it is not at all permissible to nullify the legal scheme provided under section 173(2) of the motor vehicles act, 1988. therefore, powers under articles 226 and 227 cannot be permitted to be invoked and are not to be exercised to perpetuate breach of law or breach of limits prescribed by law. the submissions of learned advocate mr. v.n. upadhye and mr. d.v. soman receive very strong support from the cases relied by them.9. in case of new india assurance co. ltd. v. member m.a.c.t. udupi : 2001(2)karlj629 the single judge of karnataka high court has held that powers under article 226 of the constitution cannot be allowed to be exercised to render statutory provision nugatory or redundant. in the case of national insurance co. ltd. v. vipul the single judge of the high court of himachal pradesh has held that order of the tribunal granting compensation less than rs. 10,000 cannot be challenged in a petition under article 227. in case of oriental insurance co. ltd. v. motor accidents claims tribunal thalassery single judge of kerala high court has held that the order of tribunal awarding compensation less than rs. 10,000 cannot be questioned in a petition under articles 226 and 227 of the constitution. it is held that statutory power cannot be circumvented by filing petition under article 226 or article 227 of the constitution of india.10. the case of harishankar ramswarup jaiswal 1997 (1) mh lj 460, relied upon by learned advocate mr. r.r. mantri cannot be pressed into service in order to defeat the legal scheme embodied in section 173(2) of motor vehicles act.11. a reference with profit can be made to a case of mafatlal industries ltd. v. union of india : 1997(89)elt247(sc) . it is held by the apex court that while exercising the jurisdiction under article 226 of the constitution due regard must be given to the legislative intent manifested by the provisions of a particular act. the apex court has further held that even while acting in exercise of constitutional power under article 226 of the constitution of india, the high court cannot ignore the law nor can it override it. the power under article 226 is conceived to serve ends of law and not to transgress them.12. after having considered the legal point involved in this writ petition, i am of the clear opinion that writ petition filed by the owner of the jeep is not maintainable in law.13. in the result, writ petition stands dismissed. rule discharged.