Shahabad Cement Company Vs. H.E.H. the Nizam's Government (27.10.1932 - APHC) - Court Judgment

Excerpt:
stamp act (hyderabad) (act iv of 1831 fasli), articles 29(a) and(b) - debenture deed--proper stamp duty--article applicable--reference to high court--question of limitation. - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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 government as per their letter of reference no. 201 dated the 31st khurdad 1341 fasli has referred the following point s for decision under section 55 of the hyderabad stamp act no. iv of 1331 fasli section 57 of act ii of 1899:(i) whether the stamp duty on the document in question should be levied under articles 29, 40 clause (a) of the stamp act; as on a conveyance or under clause (b) as on a bond.(ii) has the application been properly presented to the chief controlling revenue authority for decision under section 43 of the hyderabad stamp act (section 45 of the indian stamp act no. ii of 1899)? can he pass orders irrespective of the bar of limitation?(iii) are the present proceedings barred by limitation? are there sufficient reasons for condoning the delay and can the delay be condoned?2. we heard the arguments of the parties and considered the materials on the record. it appears that a debenture trust deed was executed by the shahabad cement company ltd. when it was presented by mr. feroz jamshedji bilmoria in the registration and stamps department for ascertaining the stamp duty, the amount was fixed at h.s. rs. 11,500 under article 29, clause (a). it is stated that the company was compelled to pay the amount so fixed. now it is contended that the stamp duty ought to have been levied under article 10 as on bond. hence, the amount levied in excess is to be refunded. we want to point out the difference between clause (a) and (b) of the article 29. it depends upon the tenor and contents and upon the intention of the parties to the documents. the former clause will be applicable when the possession of any part of the property mortgaged is given by the mortgagor or agreed to be given to the mortgagee. if neither possession is given nor agreed to be given the latter clause will be applicable. if in pursuance of the conditions of the contract the mortgagor delivers or agrees to deliver possession afterwards, no doubt the same duty is leviable as is fixed for a conveyance under article 16 of the stamp act. but the case is otherwise where the mortgagee takes possession on default. hence to take possession or to deliver possession are two separate acts which depend upon the contract. in the present case neither the company delivered the possession to the mortgagee nor did it agree to give possession, bather it is expressly stated in para, 7 of tie document that the company will retain possession over the property mortgaged till the occurrence of the default referred to in para. 9. it appears from the tenor of the document that it was prepared in accordance with the english form in vogue, where particular phrases are generally used in such cases, for example, it is provided that the-legal possession will be with the trustees whereas the mortgagor company will be in actual possession. the conclusion is the intention was not more than this that the company was to manage the affairs continuing in possession of the property. the mortgagees were entitled to possession only in case of default in payment of debt. for this purpose the words 'shall take possession' have been used. when neither the possession is given nor is agreed to be given certainly clause (b) of the article 29 is applicable and the duty to be charged is the same as is fixed for a bond. we are fortified in our view by the decision in board of revenue, madras v. moppanna, samarazu 97 ind. cas. 993 : 49 m. 903 : 51 m.l.j. 353 : (m.w.n.) 754 : 24 l.w. 559 : a.i.r. 19 : 6 mad. 1038 (f.b.).3. as for the second point we hold that the document in question was not properly brought to the notice of the chief controlling. revenue authority under section 43 because no excess, stamp duty was levied either under section 34 or under section 39.4. it is contended for the applicant that there seems to be some mistake or error in the section. apparently the contention seems to be correct. but we referred to the gazette also. there also sections 34 and 39 are referred to at any rate the application for refund has not been properly presented because here the document is not unstamped nor can it be said that it has been, unduly; stamped by accident. however as the application is fixed six days beyond time, the chief controlling revenue authority might have possibly refused to consider the application on this ground, but inasmuch as he has referred the case with his opinion under section 55 (section 57 act no. ii of 1899) of the stamp act to the high court for decision no question of limitation will arise.5. as for the third point we hold that when the case has been referred to the high court there is no occasion to consider the bar of limitation, or condoning of the delay and the reasons for condonment. the period of three months fixed in section 43 relates to the proceedings before the chief controlling revenue authority and apparently section 5 of the hyderabad limitation act no. ii of 1322 fasli (corresponding to section 5 of the indian limitation act, ix of 1033), is not applicable to such proceedings.rai biseshar nath, j.6. (dissenting)--i concur with the order proposed by nawab jeevan yar jung bahadur. but i doubt very much whether the points nos. 2 and 3 contained in the letter of reference by government can be referred to the high court under section 55, stamp act.