Government of India Vs. Savitru and Company - Court Judgment

Excerpt:
customs - appellate authority - section 128 (2) of customs act, 1962 - board invoking power under section 128 a (2) enhanced penalty - section 128 a (2) provides that appellate authority after giving opportunity has power to enhance levy of penalty - ground that levy of penalty is barred by limitation raised at belated stage cannot be permitted. - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. rama rao, j.1. this writ appeal is concerned with the levy of duty under the customs act of 1962. in an appeal filed before the board invoking the power under section 128a(2) of the act enhanced the penalty. the order enhancing the penalty is impugned in the writ petition. section 128a(2) provides that the appellate authority, after giving opportunity has the power to enhance the levy of penalty. notwithstanding this specific provision provided under section 128a(2) of the act, the learned singh judge held that the power of enhancement is not deposited in the board by section 128a(2) and this power of enhancement can be invoked in a situation where the department files an appeal. it must be stated that there is no provision for an appeal at the instance of the department. this provision is analogous to the provision under the income tax act where the appellate assistant commissioner is invested with the power to enhance the quantum of tax or penalty, provided notice is given to the affected party. therefore, the learned singh judge erred in arriving at the conclusion that the board has no power to enhance the penalty. in this view the order is not sustainable. but, however, the learned counsel for the respondent seeks to sustain the order on the ground that the levy of penalty is barred by limitation. it must be stated that this ground has not been raised at any time before the hierarchy of authorities and it is also not raised in the writ petition. but, however, it is stated that a petition has been filed for raising the ground of limitation as an additional ground. this petition is not numbered and it is at the stage of sr only even now. the learned judge also is not invited to consider this aspect. therefore, we do not consider it appropriate to permit the petitioner to raise this ground at this belated stage, as it required investigation of facts. 2. in the circumstances the order of the learned singh judge is set aside. the writ appeal is allowed. no costs.