Panchayat Samithi Vs. Srimathi Kethavarapu Kannamma - Court Judgment

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civil - lease - section 2 (16) of stamp act, 1899 - whether contract to collect toll comes within term 'lease' under act - document which involved letting of toll right comes within term 'lease' under act and such document requires stamp duty under act. - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. - i am therefore satisfied that the conclusion of the lower court was right and finding no reason to interfere with it, although i have reached that conclusion through a different note.order1. only question involved in this revision petition is whether the document in question is a lease within the meaning of section 2, clause (16) of the indian stamp act. what happened in the case was that in an action, the respondent took the contract for collection of toll from the panchayat samithi for a period of six months commencing from 1.10.1967 and ending with 31.3.1968. he executed, in pursuance of the said auction, a document on 9.10.1967 thereby agreeing to abide by certain terms including the payment of the amount. as the defendant was in arrears, the panchayat samithi instituted a suit for recovery of the arrears due from the defendant. an objection is now taken that the document which the defendant executed in favour of the panchayat samithi is a lease within the meaning of section 2, clause (16) of the act and that therefore it requires stamp duty under schedule i, article 35 (c), on the basis that it is a bond. the trial court accepted the objection raised by the office and directed the plaintiff to pay the fixed stamp together with penalty thereon. it is this order that is now challenged in this revision petition.2. clause (16) of section 2 of the act which relates to ' lease' reads as under.'lease' means a lease of immovable property and included also. (a) a patta (b) a kabuliyat or other undertaking not being a counter-part of a lease, to cultivate, occupy or pay or deliver rent for immovable property. (c) any instrument by which tolls of any description are let. (d) any writing on an application for lease intending to signify that the application was granted.' even a casual reading of this definition of ' lease' indicates that any instrument by which tolls of any description are let comes within the definition of the term ' lease'. what is therefore is to be seen is whether the document in question is an instrument by which tolls of the description given in the said document are let. in sofar as the question of letting tolls is concerned there is no dispute between the parties. when once that is admitted that by and under the document tolls are let, then it would have been an instrument by which tolls of the appropriate description are let and as a result such instrument can be a lease within the meaning of clause (16) of section 2 of the act. to consider whether it is a lease or an agreement would be beside the point obviously because clause (c) is widely worded by saying any instrument which relates to the letting of tolls would be a lease within the meaning of that term. it can hardly be doubted that the present deed is an instrument by and under which the collection of tolls is let. i am therefore satisfied that the conclusion of the lower court was right and finding no reason to interfere with it, although i have reached that conclusion through a different note.3. the revision petition is therefore dismissed with costs. 4. petition dismissed.

Judgment:
ORDER

1. only question involved in this revision petition is whether the document in question is a lease within the meaning of Section 2, clause (16) of the Indian Stamp Act. What happened in the case was that in an action, the respondent took the contract for collection of toll from the Panchayat Samithi for a period of six months commencing from 1.10.1967 and ending with 31.3.1968. He executed, in pursuance of the said auction, a document on 9.10.1967 thereby agreeing to abide by certain terms including the payment of the amount. As the defendant was in arrears, the Panchayat Samithi instituted a suit for recovery of the arrears due from the defendant. An objection is now taken that the document which the defendant executed in favour of the Panchayat Samithi is a lease within the meaning of Section 2, Clause (16) of the Act and that therefore it requires stamp duty under Schedule I, Article 35 (c), on the basis that it is a bond. The trial court accepted the objection raised by the office and directed the plaintiff to pay the fixed stamp together with penalty thereon. It is this order that is now challenged in this revision petition.

2. Clause (16) of Section 2 of the Act which relates to ' lease' reads as under.

'Lease' means a lease of immovable property and included also.

(a) a patta

(b) a Kabuliyat or other undertaking not being a counter-part of a lease, to cultivate, occupy or pay or deliver rent for immovable property.

(c) any instrument by which tolls of any description are let.

(d) any writing on an application for lease intending to signify that the application was granted.'

Even a casual reading of this definition of ' lease' indicates that any instrument by which tolls of any description are let comes within the definition of the term ' lease'. What is therefore is to be seen is whether the document in question is an instrument by which tolls of the description given in the said document are let. In sofar as the question of letting tolls is concerned there is no dispute between the parties. When once that is admitted that by and under the document tolls are let, then it would have been an instrument by which tolls of the appropriate description are let and as a result such instrument can be a lease within the meaning of clause (16) of section 2 of the act. To consider whether it is a lease or an agreement would be beside the point obviously because clause (c) is widely worded by saying any instrument which relates to the letting of tolls would be a lease within the meaning of that term. It can hardly be doubted that the present deed is an instrument by and under which the collection of tolls is let. I am therefore satisfied that the conclusion of the lower court was right and finding no reason to interfere with it, although I have reached that conclusion through a different note.

3. The revision petition is therefore dismissed with costs.

4. Petition dismissed.