New India Assurance Co. Ltd. Vs. Lilabai Baban Somase 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of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted.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the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification.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. - 7. though some other points like dependency of respondent nos. the statements made before the police as also averments made in the charge sheet are not clearly admissible in evidence and have rightly not been relied upon by the trial court. in view of the law which is now well settled by the decision of the supreme court, it must be held that the appellant is not liable for payment of the penalty. 3 to pay interest at the rate of 6% per annum in case of failure to pay the amount within two months from the date of his order is also maintained as the same is not challenged before me.karnik d.g., j.1. heard.2. this appeal is directed against the judgment and order dated 5th september, 1992 passed by the commissioner for workmens' compensation and judge, labour court, ahmednagar (for short the trial court) directing the respondent no. 3 owner of the truck and the appellant insurance company to pay to the respondent nos. 1 and 2 compensation for death of a workman and further directing them to pay the penalty, for delay in payment.3. the brief facts of the case are that respondent no. 3 is the owner of a motor vehicle which is a goods truck bearing registration no. mwa 5079. the truck was insured by respondent no. 3 with the appellant. the truck met with an accident on 30th august, 1988 and mr. baban somase, an employee of the respondent died in the accident.4. the respondent nos. 1 and 2 who are the widow and the daughter of baban filed a claim for compensation before the commissioner under the workmens' compensation act and the first labour court, ahmednagar. according to respondent nos. 1 and 2, baban was employed by the respondent no. 3 as a second driver cum cleaner on the truck. at the relevant time of the accident, baban was travelling in the truck as a cleaner. it is the case of respondent nos. 1 and 2 that death occurred during the course of employment of respondent no. 3 and therefore, respondent no. 3 and the appellant insurance company are liable for payment of compensation under the workmens' compensation act.5. the appellant denied that baban was employed as a second driver cum cleaner. according to the appellant, baban was travelling in the truck as a gratituous passenger at the relevant time. as the appellant had not covered the liability for the gratituous passengers under the insurance policy the appellant was not liable for payment of compensation.6. after consideration of the evidence adduced by the parties, the trial court held that baban was employed by the respondent no. 3 and he died in an accident arising out of and in the course of employment. the respondent nos. 1 and 2 were accordingly held to be entitled to the compensation. the trial court further held that in view of delay in payment of compensation, the appellant and the respondent no. 3 were liable to pay penalty to the extent of 50% of the compensation under section 4(1) of the workmens' compensation act and accordingly passed the award. that award is impugned in this appeal.7. though some other points like dependency of respondent nos. 1 and 2 and the limitation were raised before the trial court, they were not canvassed before me. only two points were canvassed before me to the effect that baban had not died in the course of employment and that the insurance company was not liable to pay the penalty which was payable only by owner/respondent no. 3 in view of this, following points arise for my determination:i) whether trial court was right in holding that deceased baban died in an accident during the course of employment?ii) whether appellant is liable to pay the penalty for the delay under section 4(a) of the workmens' compensation act?8. regarding point no. 1 : respondents examined respondent no. 1 the widow of the deceased. she deposed that accident took place on 30th august, 1988 and her husband died in the accident. she further deposed that her husband was working as a driver with respondent no. 3 on his truck. the accident took place while he was on duty and in the course of the employment. the respondent no. 3 in his written statement admitted that the deceased was in his employment. he had also issued a certificate which states that deceased baban was working with him on his truck bearing registration no. mwa 5079 as a second driver-cum-clearner. in view of clear admission on the part of respondent no. 3/owner of the truck and positive statement made on oath by the respondent no. 1 that her husband was working as a driver with respondent no. 3 it must be held that respondent no. 1 had proved that her husband was working with respondent no. 3 as the driver cum cleaner. he was travelling as a cleaner in the said truck at the relevant time. except for an assertion in its written statement that deceased baban was travelling as a gratituous passenger, the appellant has not produced any evidence in that regard. learned counsel for the appellant sought to rely upon the charge sheet filed in a criminal case and statements of witnesses accompanying the charge sheet. the witnesses whose statements were filed along with the charge sheet in the criminal court were not examined as the witnesses before the trial court. the statements made before the police as also averments made in the charge sheet are not clearly admissible in evidence and have rightly not been relied upon by the trial court. in any event, in view of the positive evidence adduced by respondent no. 1 and admission by respondent no. 3,i find no error in the findings recorded by the trial court in holding that baban was employed by the respondent no. 3 and died during the course of the employment.9. regarding point no. 2 : in (ved prakash garg v. premi devi and ors.) reported in : air1997sc3854 , the supreme court has held that the insurance company is not liable for payment of the penalty which is imposed on the employer for non-payment of compensation on time under the workmens' compensation act. in view of the law which is now well settled by the decision of the supreme court, it must be held that the appellant is not liable for payment of the penalty. liability of the penalty is only of the employer, i.e. the respondent no. 3. learned counsel for respondent no. 3 did not dispute this position, in view of the decision of the supreme court. in the circumstances, that part of the award which directs the appellant to pay the penalty needs to be modified. hence, i pass following order:orderthe appeal is partly allowed. the direction by the commissioner for workmens' compensation directing the respondent no. 3 to pay to respondent nos. 1 and 2 an amount of rs. 1,33,420/- (inclusive of 50% penalty) is maintained. it is further directed that out of this amount of rs. 1,33,420/- the appellant shall be liable to pay, jointly and severally along with respondent no. 3, an amount of rs. 88,848/- (exclusive of the penalty) to respondent nos. 1 and 2. directions by the commissioner for labour, directing the appellant and respondent no. 3 to pay interest at the rate of 6% per annum in case of failure to pay the amount within two months from the date of his order is also maintained as the same is not challenged before me. when the order of payment of compensation was passed, respondent no. 2 was minor and, therefore, the amount was directed to be deposited in a nationalized bank. the respondent no. 2 has now attained majority. the amount should therefore be paid to the respondents 1 and 2 forthwith. the amount, if any, already paid by the appellants and respondent no. 3 shall be given credit to.