M. Linga Murthy Vs. District Social Welfare Officer, Cuddapah - Court Judgment

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property - reference - sections 18 and 25 of land acquisition act, 1894 - appellant acquired land- authority determined market value - appellant claimed for higher value - civil court denied to revise market value and passed 'nil' award - appeal filed - if conditions to make application under section 18 (1) of act are fulfilled then land acquisition officer cannot claim that reference was bad - held, claimant entitled to lay application for reference under section 18 (1) to civil court. - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. - , providing house, sites to the poor. 3. it is well-settled position of law that a claimant is entitled to receive the compensation amount awarded by the land acquisition officer with or without protest. in case the land acquisition officer makes a reference to the civil court, it would not be open to him subsequently to raise the plea that the reference itself is bad, provided the conditions precedent to make an application under s. 18(1) is bad. the best course that would be open is to give an opportunity to the parties to adduce evidence as to under what circumstances the substituted service was resorled to and whether any personal service was attempted to be effected and the appellant evaded receipt thereof. the claimant may not be justified in laying the claim having failed to put forth the claim pursuant to the notices under.1. the appellant is the claimant. land in an extent of ac. 2.52 cents of jammalamadugu village was acquired by publishing a notification under s. 4(1) of the land acquisition act, act i of 1894 in the district gazette dt. feb. 17, 1976 for a public purpose, viz., providing house, sites to the poor. the land acquisition officer determined the market value of the lands at the rate of rs. 5,500/- per acre. the appellant claimed the market value at the rate of rs. 1,00,000/- but restricted the same to rs. 50,000/- later on. the civil court refused to revise the market value on the ground that the appellant had not laid his claim pursuant to the notices under ss. 9 and 10 of the act. therefore, it passed a 'nil' award. against this award, this appeal has been filed.2. the contention of sri ashok, the learned counsel for the appellant is that the land acquisition officer having made a reference under s. 18(1), is precluded from objecting that the appellant had not filed his claim statement before him pursuant to the notice under s. 9 and 10 and, therefore, he was disabled to lay the claim. on the other hand, sri rajanna, learned government pleader contended that the very reference is bad since the appellant received the compensation amount without protest and that, therefore, the civil court is well-justified in passing the 'nil' award.3. it is well-settled position of law that a claimant is entitled to receive the compensation amount awarded by the land acquisition officer with or without protest. in case he receives the amount under protest, he is entitled under law to lay an application for reference under s. 18(1) to the civil court within the limitation prescribed under the act. in case he receives the amount without protest and makes an application for reference, then it is open to the land acquisition officer either to make or refuse to make a reference. in a case where the land acquisition officer refuses to make a reference, the appropriate remedy open to the claimant is to approach this court under art. 226 of the constitution of india and then assail the legality of the order. in case the land acquisition officer makes a reference to the civil court, it would not be open to him subsequently to raise the plea that the reference itself is bad, provided the conditions precedent to make an application under s. 18(1) are fulfilled, i.e. (i) an application in writing; (ii) nature of the objection, and (iii) within the time. this legal position is settled by the supreme court in mohd. hasnuddin v. state of maharashtra, : [1979]2scr265 . therefore, the contention of sri rajanna,learned government pleader that the reference itself is bad and that the civil court is justified in making the 'nil' award is clearly not warranted. it does not lie in the mouth of the land acquisition officer to take the stand that making a reference under s. 18(1) is bad.4. another facet of the argument is that since the land acquisition officer made a reference under s. 18(1), he is prevented from raising the statutory defence open to him under s. 25 of the act. no doubt, preceding the amendment act, 1984, an application to make a claim pursuant to notices under ss. 9 and 10 is mandatory and after the amendment came into force, it is no longer a necessary condition and no longer is a formidable objection that stands in the way of the claimant. but preceding the amendment, this statutory defence was open to the land acquisition officer to be raised. therefore, it is always open to the land acquisition officer to raise that defence. therefore, sri ashok, the learned counsel for the appellant is not justified in contending that it is not open to the land acquisition officer to raise the objection under s. 25 after making a reference under s. 18(1).5. the question then is whether the lower court is justified in holding that the claimant is not entitled to claim a higher amount than what was awarded by the land acquisition officer. the main ground on which the attention was focussed was that the notice was admittedly served by substituted service, viz., affixture of the notice to the land of the claimant. he had, therefore, notice of the award inquiry, but he did not lay the claim before the land acquisition officer. therefore, he is precluded to claim more market value than was awarded by the land acquisition officer. the contention of sri ashok in this regard is that admittedly the appellant was doing timber business in the very same site and that would show that the appellant was available : for personal service. no reasons have been given by the land acquisition officer when he examined as r.w. i in support of the grounds on the basis of which he resorted to substituted service by affixture. unless the land acquisition officer satisfies the court that the claimant refused to receive the notice when it was attempted to be served, resort to substituted service cannot be had. such is not the case here. the court below committed a grievous error in putting the blame on the appellant. i find force in the contention of the learned counsel. it is common knowledge that the award enquiry would be conducted in the office of the land acquisition officer but not at the site of the claimant. therefore, the claimant will not be in a position to know when the award enquiry is conducted unless there is any notice given of the date of enquiry. he, therefore, absented himself having not received personally the notice. the evidence is not clear as to under what circumstances the land acquisition officer resorted to substituted service. therefore, i cannot give any definite finding in this regard. the best course that would be open is to give an opportunity to the parties to adduce evidence as to under what circumstances the substituted service was resorled to and whether any personal service was attempted to be effected and the appellant evaded receipt thereof. tf it is held that there is no justification for resorting to substituted service when personal service was got to be effected, then it would be a case where the claimant has to be afforded an opportunity to put forward his claim. if it is held that there was sufficient opportunity for receiving the notice and the claimant refused to receive or attempted to evade the receipt thereof, then as a last resort substituted service could be effected. the claimant may not be justified in laying the claim having failed to put forth the claim pursuant to the notices under. ss. 9 and 10. this question would be; angulated only if sufficient evidence is available on record. the order dt. dec. 29, 1981 passed by the civil court is set aside. the lower court is directed to give an opportunity to both parties to adduce evidence in this regard as indicated above and consider the case afresh according to law. the lower court is directed to dispose of the matter within six months from the date of receipt of this order. the office is directed to refund the court-fee paid by the appellant.6. the appeal is accordingly allowed. in the circumstances', each party is directed to'bear its own costs.7. appeal allowed.