In Re: K. Munirattnam - Court Judgment

Excerpt:
- 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. orderbasi reddy, j.1. this is a petition to revise the judgment of the additional sessions judge of chattier, confirming the conviction of the petitioner for an offence under section 12 of the madras gaming act (act iii of 1930).2. the facts of the case are as follows:on 27-2-1956 at about 8-30 p. m., while the petitioner was travelling in a bus going to tirupati, the sub-inspector of police (p.w. 1), acting on information, stopped the bus at a rice mill near renigunta and searched the person of the petitioner. in his pocket was found a notebook containing entries about cotton market betting and in a cloth bag which he had with him, were found coins and notes of the value of rs. 107-10-0 with 32 numbers of cotton market betting carbon counter-slips. all these were seized by p.w. 1 under a 'mahazar.on these facts the petitioner was prosecuted for an offence under section 12 of the madras gaming act, and the second class bench magistrate, tirupati, convicted the petitioner, sentenced him to pay a fine of rs. 10/- and ordered the confiscation of the money seized from him. on appeal, the additional sessions judge confirmed the conviction and sentence as also the order of confiscation; hence this revision petition.3. it is urged on behalf of the petitioner that the facts proved in this case do not constitute an offence under section 12 of the gaming act. section 12 is in the following terms:whoever is found gaming with cards, dice, counters, money or other instruments of gaming in any public street, place or thoroughfare or publicly fighting cocks, shall be liable on conviction to fine not exceeding fifty rupees or to imprisonment not exceeding one month; and such instruments of gaming and money shall be forfeited.thus, what the section alms at is gaming in a public street, place or thoroughfare. 'gaming' is defined in section 3 thus:'gaming' does not include a lottery but includes wagering or betting.eplanation: for the purposes of this definition, wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes in money or otherwise, in respect of any wager or bet, or any act which is intended to add or facilitate wagering or betting or such collection, soliciting, receipt or distribution.so that 'gaming' includes not only actual wager-1 ing or betting but also antecedent, ancillary and i accessory acts calculated to aid or facilitate wagering or betting.4. but under the gaming act, gaming as such is not an offence but only gaming in a common gaming-house or in a public place is made punishable, the one under section 9 and the other under section 12 of the act. therefore, unless it is shown that the ancillary or accessory acts contemplated by the explanation are themselves committed in a public place, the person concerned cannot be said to be 'found gaming in a public place,' so as to render himself liable under section 12.5. in the present case, it was not suggested by the prosecution that the petitioner was collecting or soliciting bets in the bus in which he was travelling; all that was proved by the prosecution was that the petitioner had in his possession betting slips, a note-book with certain entries and money. the lower appellate court was of the view that 'though the accused was not collecting or soliciting bets, he was doing an act intended to aid or facilitate wagering or betting by his possession of the incriminating articles; and when section 12 of the gaming act is read along with the definition and the explanation above mentioned, it is not necessary that a person should be actually collecting or soliciting bets for being punishable.' i am of the opinion that the lower appellate court was in error in equating a definition section with a penal provision.6. i am fortified in my view by a full bench ruling of the bombay high court in emperor v. somabhai govindbhai a.i.r. 1938 bom 484 (a). in that case, section 12 of the bombay prevention of gambling act (bombay act iv of 1887), which is similar to section 12 of the madras gaming act, came to be construed.7. section 12 of the bombay act runs as follows:a police-officer may apprehend and search without warranta) any person found gaming or reasonably suspected to be gaming in any public street, or thoroughfare, or in any place to which the public have or permitted to have access or in any race-course; (b) xx xx xx(c) xx xx xxany such person shall, on conviction be punishable with fine which may extend to three hundred rupees or with imprisonment which may extend to three months....'gaming' is defined in section 3 thus:in this act 'gaming' includes wagering or betting (a)...(b)...(c)...... the collection or soliciting of bets, receipt or distribution of -winnings or prizes in money or otherwise in respect of wagering or betting or any act which is intended to aid. or facilitate wagering or betting or such collection, soliciting receipt or distribution shall he deemed to be 'gaming.the accused in that case was convicted of an offence under section 12 (a) of the bombay prevention of gambling act. the conviction and sentence were set aside on appeal by the sessions judge and the government preferred an appeal against the acquittal.8. the accused was a cotton broker working in surat. he belonged to bhadran, a village in baroda territory. he had a house there and used to visit the place several times a month. when he was travelling by train from surat to anand, which is the station for bhadran, he was arrested at anand station by a police inspector who had received secret information that he was in possession of money and chits relating to wagering or betting on cotton futures.he was searched and in his pockets were found rs. 1,698-4-0 and six chits of the description known as 'satta' chits. on the strength of these chits, both the courts below had held it proved that the money in the accused's possession represented the winnings of certain persons in bhadran who had been wagering on american cotton futures and that the accused was on his way to bhadran in order to distribute the money.9. on these facts it was contended on behalf of the crown that although the accused was not found actually gaming in a public place, yet reading the definition of 'gaming' into the charging section, the accused was guilty of gaming at anand station. this contention was repelled by the full bench and the learned judges held that.though the distribution of the winnings of gaming or any act facilitating the same is gaming, it is not gaming in a public place, unless (a) the winnings are the winnings of gaming in a public place, in which case, the mischief aimed at has been committed somewhere, or (b) the distribution or ancillary act is itself public.in that view, the appeal filed by the government was dismissed.10. i would, therefore, allow this revision petition, set aside the conviction and sentence and cancel the order of forfeiture. the fine, if paid, will be refunded and the money seized shall be returned to the petitioner.

Judgment:
ORDER

Basi Reddy, J.

1. This is a petition to revise the judgment of the Additional Sessions Judge of Chattier, confirming the conviction of the petitioner for an offence under Section 12 of the Madras Gaming Act (Act III of 1930).

2. The facts of the case are as follows:

On 27-2-1956 at about 8-30 p. m., while the petitioner was travelling in a bus going to Tirupati, the Sub-Inspector of Police (P.W. 1), acting on information, stopped the bus at a rice mill near Renigunta and searched the person of the petitioner. In his pocket was found a notebook containing entries about cotton market betting and in a cloth bag which he had with him, were found coins and notes of the value of Rs. 107-10-0 with 32 numbers of cotton market betting carbon counter-slips. All these were seized by P.W. 1 under a 'mahazar.

On these facts the petitioner was prosecuted for an offence under Section 12 of the Madras Gaming Act, and the Second Class Bench Magistrate, Tirupati, convicted the petitioner, sentenced him to pay a fine of Rs. 10/- and ordered the confiscation of the money seized from him. On appeal, the Additional Sessions Judge confirmed the conviction and sentence as also the order of confiscation; hence this revision petition.

3. It is urged on behalf of the petitioner that the facts proved in this case do not constitute an offence under Section 12 of the Gaming Act. Section 12 is in the following terms:

Whoever is found gaming with cards, dice, counters, money or other instruments of gaming in any public street, place or thoroughfare or publicly fighting cocks, shall be liable on conviction to fine not exceeding fifty rupees or to imprisonment not exceeding one month; and such instruments of gaming and money shall be forfeited.

Thus, what the section alms at is gaming in a public street, place or thoroughfare. 'Gaming' is defined in Section 3 thus:

'Gaming' does not include a lottery but Includes wagering Or betting.

Eplanation: For the purposes of this definition, wagering or betting shall be deemed to comprise the collection or soliciting of bets, the receipt or distribution of winnings or prizes in money or otherwise, in respect of any wager or bet, or any act which is intended to add or facilitate wagering or betting or such collection, soliciting, receipt or distribution.

So that 'gaming' includes not only actual wager-1 ing or betting but also antecedent, ancillary and I accessory acts calculated to aid Or facilitate wagering or betting.

4. But under the Gaming Act, gaming as such is not an offence but only gaming in a common gaming-house or in a public Place is made punishable, the one under Section 9 and the Other under Section 12 of the Act. Therefore, unless it is shown that the ancillary or accessory acts contemplated by the Explanation are themselves committed in a public place, the person concerned cannot be said to be 'found gaming in a public place,' so as to render himself liable under Section 12.

5. In the present case, it was not suggested by the prosecution that the petitioner was collecting or soliciting bets in the bus in which he was travelling; all that was proved by the prosecution was that the petitioner had in his possession betting slips, a note-book with certain entries and money. The lower appellate Court was of the view that 'though the accused was not collecting or soliciting bets, he was doing an act intended to aid or facilitate wagering or betting by his possession of the incriminating articles; and when Section 12 of the Gaming Act is read along with the definition and the Explanation above mentioned, it is not necessary that a person should be actually collecting or soliciting bets for being punishable.' I am of the opinion that the lower appellate Court was in error in equating a definition section with a penal provision.

6. I am fortified in my view by a Full Bench ruling of the Bombay High Court in Emperor v. Somabhai Govindbhai A.I.R. 1938 Bom 484 (A). In that case, Section 12 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887), which is similar to Section 12 of the Madras Gaming Act, came to be construed.

7. Section 12 of the Bombay Act runs as follows:

A Police-officer may apprehend and search without warrant

a) any person found gaming or reasonably suspected to be gaming in any public street, or thoroughfare, or in any place to which the public have or permitted to have access or in any race-course;

(b) xx xx xx(c) xx xx xxAny such person shall, on conviction be punishable with fine which may extend to three hundred rupees or with imprisonment which may extend to three months....

'Gaming' is defined in Section 3 thus:

In this Act 'gaming' includes wagering or betting

(a)...(b)...(c)...... The collection or soliciting of bets, receipt Or distribution of -winnings or prizes in money or otherwise in respect of wagering or betting or any act which is intended to aid. or facilitate wagering or betting or such collection, soliciting receipt or distribution shall he deemed to be 'gaming.

The accused in that case was convicted of an offence under Section 12 (a) of the Bombay Prevention of Gambling Act. The conviction and sentence were set aside on appeal by the Sessions Judge and the Government preferred an appeal against the acquittal.

8. The accused was a cotton broker working In Surat. He belonged to Bhadran, a village In Baroda territory. He had a house there and used to visit the place several times a month. When he was travelling by train from Surat to Anand, which is the station for Bhadran, he was arrested at Anand station by a Police Inspector who had received secret information that he was in possession of money and chits relating to wagering or betting on cotton futures.

He was searched and in his pockets were found Rs. 1,698-4-0 and six chits of the description known as 'satta' chits. On the strength of these chits, both the Courts below had held it proved that the money in the accused's possession represented the winnings of certain persons In Bhadran who had been wagering on American Cotton futures and that the accused was on his way to Bhadran In order to distribute the money.

9. On these facts it was contended on behalf of the Crown that although the accused was not found actually gaming in a public place, yet reading the definition of 'gaming' into the charging section, the accused was guilty of gaming at Anand Station. This contention was repelled by the Full Bench and the learned Judges held that.

though the distribution of the winnings of gaming or any act facilitating the same is gaming, it is not gaming in a public place, unless (a) the winnings are the winnings of gaming in a public place, in which case, the mischief aimed at has been committed somewhere, or (b) the distribution or ancillary act is itself public.

In that view, the appeal filed by the Government was dismissed.

10. I would, therefore, allow this revision petition, set aside the conviction and sentence and cancel the order of forfeiture. The fine, If paid, will be refunded and the money seized shall be returned to the petitioner.