Madhav Pershad Vs. Meer Hasan Ali and ors. - Court Judgment

Excerpt:
hyderabad civil procedure code (act iii of 1382, fasli), sections 71, 72 - application to fie award, whether plaint--return for re-presentation--legality--pleader's fees--assessment of. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. 1. the pleader for the respondent is heard. the appellant is present in person. the order of the lower court that the original side of the high court is not competent to entertain the application is correct: vide ram lal v. kishen chand 83 ind. cas. 531 : 51 i.a. 72 : (1924) m.w.n. 79 : a.i.r. 1924 : p.c. 95 : 8 n.l.j. 62 : 20 n.l.r. 33 : 19 l.w. 549 : 34 m.l.t. 62 : 22 a.l.j. 386 : 46 m.l.j. 628 : 51 c. 351 : 26 bom. l.r. 586 : 28 c.w.n. 977 : l.r. 5 a.p.c. 216 (p.c.). it might be argued that the application ought to have been returned for presentation to the proper court under section 72, hyderabad civil procedure code, act no. iii of 1332 fasli (order vii, rule 11 of act no. v of 1908). but this argument also is not acceptable because the application to file an award is not a plaint and section 71 (order vii rule 10) ordains the return of the plaint only. such an application cannot be deemed a plaint for every purpose simply because it is provided in section 559 (schedule. no. ii para. 20) that an application to file award is numbered and registered as a suit nor can we hold likewise within the principles of analogy. the high court of rangoon has held the same view in ma thein tin v. maung ba than, 76 ind. cas. 493 76 ind. cas. 493 : i.r. 266 : a.i.r. 1923 rang 26. the appellant's contention that cost a ought not to have been awarded on the scale as in a regular suit is certainly tenable. undoubtedly in regard to allowing costs, section 245 hyderabad civil procedure code. (section 35 of act no. v of 1938), can be made applicable to the present proceedings in view of section 636, hyderabad civil procedure code. (section 141 of act no. v of 1908). but the lower court has ordered pleader's fees to be assessed under section 5 clause(a) legal practition is rules of 1333 fasli provided for regular suits. this order of the lower court cannot stand in view of our finding that the present proceedings cannot be considered a regular suit for every purpose. we therefore hold that section 6, clause 7 of the legal practitioners rules of 1333 fasli is applicable to the present proceedings, and the pleader's fees is to be assessed accordingly. the said rule requires the court to fix the amount. hence we think it will meet the interests of justice if the plaintiff is ordered to pay the defendants h.s. rs. 50 towards pleader's fees in the lower court. accordingly the appeal is allowed in part. the order of the lower court is modified to this extent that in the decree of the court below pleader's fees are to be calculated at h.s. rs. 50 only. the costs of this appeal to be borne by the parties.