Sri Srinivasa Sago Manufacturing Company Kakinda and ors. Vs. Agricultural Market Committee, Kakinada - Court Judgment

Excerpt:
constitution - tax on agricultural commodity - section 7 (1) of andhra pradesh (agricultural produce and live stock) markets act, 1996 - petitioners carry business of manufacture of 'sago' which is prepared from 'cassava' - under notification any person dealing with 'tapioca' is bound to take license under section 7 - 'tapioca' notified as agricultural produce - petitioners asked to obtain license - petitioners deal with 'cassava' which is not notified as agricultural produce - 'cassava' and 'tapioca' different commodities - held, petitioners not liable to take license under section 7 (1). - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. ordersyed siiah mohammed quadri, j 1. the petitioners, 19 in number, seek a writ of mandamus declaring the demand made by the agricultural market committee, kakinada to obtain licences under section 7(1) of the a.p. (agricultural produce and livestock) markets act, 1966 and to pay market fee as illegal and for a consequential direction to restrain the market committee, kakinada from acting upon the said demand.2. the petitioners are carrying on the business of manufacturing 'sago'. they established factories around somalkot and kakinada- the 'sago' is prepared from cassava which is raised by the fanners in their lands, beyond the municipal limits of somalkot and kakinada. cassava is not fit for human consumption directly and is not available in the market. the government of andhra pradcsh have issued a notification describing the operational area of agricultural market committee within a radius of 25 k.ms., around the municipal limits of somalkot and kakinada. agricultural produce has been notified by the government and the list of agricultural produce, livestock and flowers is appended to the notification issued by the agricultural market committee, kakinada. item 12 of the schedule-iii to the said notification is tapioca. on 15-12-1994, the petitioners were asked to obtain licences under section 7(1) of the a.p. agricultural produce and livestock markets act, 1966. the petitioners replied that they were purchasing cassava but not tapioca, therefore, no licences are required by them. the petitioners say that cassava is used exclusively in the manufacture of 'sago' and is unfit for human consumption directly and that tapioca is fit for direct human consumption and is consumed after boiling. thus, as cassava is not one of the items in the schedule, so, no licence is required.3. the respondents filed counter affidavits stating, inter alia, that tapioca is one of the notified agricultural produces which comes under the vegetable group. it is further stated tliat cassava and tapioca are one and the same, therefore, even for cassava, the petitioners have to obtain licences under section 7 of the a.p.agricultural produce and livestock markets act, 1966. in view of the above position, the respondents prayed that this writ petition be dismissed.4. mrs. p. sundari frasad, the learned counsel for the petitioners, contends dial cassava and tapioca are two different commodities; whereas, cassava is an agricultural produce, tapioca is a preparation from cassava, therefore, they are two different commodities.5. the short question that arises for consideration is whether cassava and tapioca are one and the same commodity; if so, are the petitioners bound to obtain licences under section 7 of the aforementioned act ?6. in the encyclopedia americana, the meaning of the word, 'cassava' is given as follows:'cassava, kas-sava (also called manioc, mandioc, yuca, casabi), south america!) shaibs of the genus manihot, of the spurge family, euphorbiaccac, widely cultivated in tropical america for their fleshly, starchy roots which form a large part of the food of the natives of northern south america; from llic starch, tapioca is made. they have aiso been introduced into other warm countries especially africa, and have quickly gained important positions as food crops. two species are used for their starch content: m.utilissima (also known as m.esculenta) the bitter cassava and m.dulcis, variety aipa, the sweet cassava. the former, although containing some very poisonous hydrocyanic acid is much more widely used on account of its greater starch ' content, the poisonous part being removed during the processing of the starch. the starch content varies from 15 to over 30 per cent in contrast to 12-20 per cent for potatoes and about 60 percent for maize...'7. in the' 'new standard encyclopedia' volume three the meaning of 'cassava' is given as follows:'cassava, ka-sa va or manioc, a small . shrub grown in tropical and subtropical . regions throughout the world. there are two types. the bitter cassava lias poisonous roots. when ground and thoroughly cleansed to remove the poisonous prussic acid, these roots are used to make tapioca. the roots of the sweet cassava are tubers, similar to those of the potato. these arc edible and liave a pleasant taste. cassava is of the spurge family, euphorbiaccae. the bitter is manihot esculenta; sweet m.dulcis see tapioca.' 8. the meaning of the word,' 'tapioca' is given in the 'new standard encycliopedia' volume thirteen which reads as under :' 'tapioca, tapi-o-ka a starch prepared from the roots of the cassava plant. to make tapioca, the large carrot-shaped roots arc peeled, grated, and squeezed to remove their juices. the resulting starchy material is further processed into tapioca flour. a moist dough, which is made into pearl or flake tapioca, is prepared from the flour. for pearl tapioca, the dough is passed through a sieve and the resulting pellets are heated. flake tapioca is made by baking thin sheets of the dough. the flakes are then ground to make the granular, or 'minute' tapioca commonly used for cooking in the united states. tapioca is. nutritious atid easily digested. it is used for thickening puddings, soups, and sauces. tapioca is also used in industry' to make such products as laundry starches and adhesives. brazil and indonesia arc the leading producers of tapioca for export.' 9. in chambers 20th century dictionary, new edition, the meaning of 'tapioca'' is given at page 1322 as under :'tapioca tap-i-o ka (n) a farinaceous substance got by heating cassava: extended to a kind of sago and a preparation ofpotato starch: a pudding made from tapioca -peari-tapiocaseepearl. (tupi-guaraiiitipjxxa)'10. in chambers 20th century dictionary, new edition, the meaning of 'cassava' is given at page 195 as under :'cassava ka sa va n manioc: tapioca (from a tanio (language of extinct west indian tribe) name.'11. from a reading of the meaning of these two terms it is evident that cassava is an agricultural produce, but tapioca is not an agricultural produce but is a product of cassava. though in the 20th century chambers dictionary, new edition, 'cassava' is used as meaning' 'tapioca'', yet, there can be, no doubt, that cassava and tapioca are two different commodities. cassava is an agricultural produce, whereas, tapioca is not an agricultural produce but is a product obtained from cassava.12. in the instant case, the notification does not contain the word, 'cassava' but contains the word, 'tapioca'. if any person deals in tapioca, he is bound to obtain licence under section 7 of the afore-mentioned act as tapioca is a notified agricultural produce. but as the petitioners are dealing not in tapioca' but in cassava' which is not notified as an agricultural produce, therefore, the petitioners arc not bound to obtain licenses under section 7 of the afore-mentioned act.13. for the above reasons, the writ petition is allowed and the respondents are directed not to take any further action pursuant to their notice dated 15-12-1994. no costs.

Judgment:
ORDER

Syed Siiah Mohammed Quadri, J

1. The petitioners, 19 in number, seek a writ of Mandamus declaring the demand made by the Agricultural Market Committee, Kakinada to obtain licences under Section 7(1) of the A.P. (Agricultural Produce and Livestock) Markets Act, 1966 and to pay market fee as illegal and for a consequential direction to restrain the Market Committee, Kakinada from acting upon the said demand.

2. The petitioners are carrying on the business of manufacturing 'Sago'. They established factories around Somalkot and Kakinada- The 'Sago' is prepared from Cassava which is raised by the fanners in their lands, beyond the municipal limits of Somalkot and Kakinada. Cassava is not fit for human consumption directly and is not available in the market. The Government of Andhra Pradcsh have issued a notification describing the operational area of Agricultural Market Committee within a radius of 25 K.ms., around the municipal limits of Somalkot and Kakinada. Agricultural produce has been notified by the Government and the list of agricultural produce, livestock and flowers is appended to the notification issued by the Agricultural Market Committee, Kakinada. Item 12 of the Schedule-III to the said notification is Tapioca. On 15-12-1994, the petitioners were asked to obtain licences under Section 7(1) of the A.P. Agricultural Produce and Livestock Markets Act, 1966. The petitioners replied that they were purchasing Cassava but not Tapioca, therefore, no licences are required by them. The petitioners say that Cassava is used exclusively in the manufacture of 'Sago' and is unfit for human consumption directly and that Tapioca is fit for direct human consumption and is consumed after boiling. Thus, as cassava is not one of the items in the Schedule, so, no licence is required.

3. The respondents filed counter affidavits stating, inter alia, that Tapioca is one of the notified agricultural produces which comes under the vegetable group. It is further stated tliat cassava and Tapioca are one and the same, therefore, even for cassava, the petitioners have to obtain licences under Section 7 of the A.P.Agricultural Produce and Livestock Markets Act, 1966. In view of the above position, the respondents prayed that this writ petition be dismissed.

4. Mrs. P. Sundari Frasad, the learned Counsel for the petitioners, contends dial Cassava and Tapioca are two different commodities; Whereas, Cassava is an agricultural produce, Tapioca is a preparation from Cassava, therefore, they are two different commodities.

5. The short question that arises for consideration is whether Cassava and Tapioca are one and the same commodity; if so, are the petitioners bound to obtain licences under Section 7 of the aforementioned Act ?

6. In the Encyclopedia Americana, the meaning of the word, 'Cassava' is given as follows:

'Cassava, kas-sava (also called Manioc, Mandioc, Yuca, Casabi), South America!) shaibs of the genus Manihot, of the spurge family, Euphorbiaccac, widely cultivated in tropical America for their fleshly, starchy roots which form a large part of the food of the natives of northern South America; from llic starch, tapioca is made. They have aiso been introduced into other warm countries especially Africa, and have quickly gained important positions as food crops. Two species are used for their starch content: M.utilissima (also known as M.esculenta) the bitter cassava and M.dulcis, variety Aipa, the sweet cassava. The former, although containing some very poisonous hydrocyanic acid is much more widely used on account of its greater starch ' content, the poisonous part being removed during the processing of the starch. The starch content varies from 15 to over 30 per cent in contrast to 12-20 per cent for potatoes and about 60 percent for maize...'

7. In the' 'New Standard Encyclopedia' Volume Three the meaning of 'Cassava' is given as follows:

'Cassava, ka-sa va or Manioc, a small . shrub grown in tropical and subtropical . regions throughout the world. There are two types. The bitter cassava lias poisonous roots. When ground and thoroughly cleansed to remove the poisonous prussic acid, these roots are used to make tapioca. The roots of the sweet cassava are tubers, similar to those of the potato. These arc edible and liave a pleasant taste.

Cassava is of the spurge family, Euphorbiaccae. The bitter is Manihot esculenta; sweet M.dulcis See Tapioca.'

8. The meaning of the word,' 'Tapioca' is given in the 'New Standard Encycliopedia' Volume Thirteen which reads as under :

' 'Tapioca, tapi-o-ka a starch prepared from the roots of the cassava plant. To make tapioca, the large carrot-shaped roots arc peeled, grated, and squeezed to remove their juices. The resulting starchy material is further processed into tapioca flour. A moist dough, which is made into pearl or flake tapioca, is prepared from the flour. For pearl tapioca, the dough is passed through a sieve and the resulting pellets are heated. Flake tapioca is made by baking thin sheets of the dough. The flakes are then ground to make the granular, or 'minute' tapioca commonly used for cooking in the United States.

Tapioca is. nutritious atid easily digested. It is used for thickening puddings, soups, and sauces. Tapioca is also used in industry' to make such products as laundry starches and adhesives. Brazil and Indonesia arc the leading producers of tapioca for export.'

9. In Chambers 20th Century Dictionary, New Edition, the meaning of 'tapioca'' is given at page 1322 as under :

'tapioca tap-i-o ka (n) a farinaceous substance got by heating cassava: extended to a kind of sago and a preparation ofpotato starch: a pudding made from tapioca -peari-tapiocaseepearl. (Tupi-Guaraiiitipjxxa)'

10. In Chambers 20th Century Dictionary, New Edition, the meaning of 'cassava' is given at page 195 as under :

'cassava ka sa va n manioc: tapioca (From a Tanio (language of extinct West Indian tribe) name.'

11. From a reading of the meaning of these two terms it is evident that Cassava is an agricultural produce, but tapioca is not an agricultural produce but is a product of cassava. Though in the 20th Century Chambers Dictionary, New Edition, 'cassava' is used as meaning' 'tapioca'', yet, there can be, no doubt, that cassava and tapioca are two different commodities. Cassava is an agricultural produce, whereas, tapioca is not an agricultural produce but is a product obtained from cassava.

12. In the instant case, the notification does not contain the word, 'cassava' but contains the word, 'tapioca'. If any person deals in tapioca, he is bound to obtain licence under Section 7 of the afore-mentioned Act as tapioca is a notified agricultural produce. But as the petitioners are dealing not in tapioca' but in cassava' which is not notified as an agricultural produce, therefore, the petitioners arc not bound to obtain licenses under Section 7 of the afore-mentioned Act.

13. For the above reasons, the writ petition is allowed and the respondents are directed not to take any further action pursuant to their notice dated 15-12-1994. No costs.