In Re: Darla Ramadass - Court Judgment

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sales tax - onus - section 435 and 439 of code of criminal procedure, 1898 - revision against conviction under section 15 (a) of madras general sales tax act for not submitting sales-tax returns - return had to be submitted only if estimated income was more than rs. 10000 - it is not established in this case - magistrate was influenced by accused's plea that he had submitted return which magistrate considered not established - in criminal matter onus is on prosecution to prove guilt of accused - onus not discharged - held, conviction set aside. - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. - in my opinion in this case the prosecution has not satisfied by its evidence that the accused was one who was liable to submit a return within the meaning of rule 6(1) of the assessment rules.a.s. godara1. this is a revision on behalf of the accused against the judgment of the first class magistrate, narasaraopet, convicting the accused under section 15(a) of the madras general sales tax act and sentencing him to pay a fine of rs. 25 in default to undergo simple imprisonment for 15 days. the accused before me was a person who was doing business in rice and food-grains and a dealer under the sales tax act. the charge against him is that he did not submit the returns with regard to this business turnover as required by the provisions of the act and the rules made thereunder.2. the relevant rule in this regard is rule 11 of the madras general sales tax (turnover and assessment) rules, 1939. that rule says that every dealer who is liable to submit a return under rule 6 shall, on or before the 1st day of may in every year, submit to the assessing authority a return showing the actual gross and net turnover for the preceding year and the amounts collected by way of tax during that year. this rule as would appear speaks of the liability of the dealer to submit a return under rule 6. rule 6 says that every dealer who commenced business after 1st october, 1939, whose estimated income for the first twelve months of his business is not less than rs. 10, 000 shall, within 30 days of commencing his business, submit to the assessing authority a return in form a giving particulars mentioned therein. rule 6, therefore, envisages that the dealer must be one whose estimated turnover for the first 12 months is not less than rs. 10, 000. so far as this question is concerned there is no evidence on behalf of the prosecution. the condition precedent to the submitting of the return under rule 6 is the extent of the estimated business being more than rs. 10, 000. that is not established in this case. rule 11(1) would only come into operation, if the prosecution can satisfy that the dealer in this case was one liable to submit a return under rule 6.the magistrate has convicted the accused evidently being influenced by the fact that he set up a plea that he submitted a return and in his evidence he stated that he submitted his return within time which was mislaid and later on he submitted a second return. he disbelieved the story and held that the plea set up by the accused was not established. in a criminal matter it would not matter if the accused is not able to establish his plea. the onus is on the prosecution to bring home the guilt of the accused. in my opinion in this case the prosecution has not satisfied by its evidence that the accused was one who was liable to submit a return within the meaning of rule 6(1) of the assessment rules. i, therefore, allow this revision, and set aside the conviction. if the fine has been recovered from the accused, it be refunded to him.