Moola Vijaya Bhaskar Vs. Moola S.S. Ravi Prakash and ors. - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. - only in cases where the question of payment of court-fee affects the very pecuniary jurisdiction, it is necessary for the court to investigate and examine and then decide it is a preliminary issue, if it is satisfied that the jurisdictional question is involved. 21. the court below failed to see that after the completion of the trial if the court comes to a conclusion that if the court fees is not properly paid it can grant reasonable time to the plaintiff for payment of the deficit court fees.orderg. rohini, j.1. the petitioner in this revision petition is the plaintiff no. 1 in o.s. no. 2 of 2003 on the file of the court of the iii-additional district judge (ftc) anantapur, filed for partition of the suit schedule properties claiming that the plaintiffs are entitled to 1/6th share each.2. the 1st respondent herein is the defendant no. 2 whereas the respondents 2 and 3 herein are the defendant 3 and 4 respectively in the suit. the 4th respondent herein is the plaintiff no. 2. the defendant no. 1 died during the pendency of the suit.3. the defendants filed written statement denying the plea of the plaintiffs that the suit schedule properties were the joint family properties. while claiming that the 3rd defendant was the absolute owner of items 2 to 4 of plaint-a schedule properties and the same were in her exclusive possession and enjoyment, it was further contended that the plaintiffs ought to have paid the court fee under section 34(1) of the a.p. court fee and suits valuation act,1956 ( for short 'the act') in respect of the said items and the court fee of rs. 200/- paid under section 34(2) of the act was not sufficient. on the basis of the said pleadings, issues were settled by the court below including a specific issue as to the correctness of the court fee as additional issue no. 34. thereafter while the trial was in progress, the 2nd defendant filed i.a. no. 1115 of 2007 with a prayer to try the additional issue no. 3 relating to the correctness of court fee paid as a preliminary issue. though the 1st plaintiff filed a counter and opposed, the said petition was allowed by the court below by order dated.09-09-2008 holding that there was a triable point regarding the controversy.5. aggrieved by the said order dated.09-09-2008 the present civil revision petition is filed by the plaintiff no. 1.6. i have heard the learned counsel for both the parties and perused the material on record.7. order xiv rule 1 of cpc, provides that the issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other and that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. as could be seen from order xiv rule.1 (5), at the first hearing of the suit the court shall ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. order xiv rule 2 further provides that the judgment shall be pronounced by the court on all issues except where the court is of the opinion that the case or any part thereof may be disposed of on an issue of law only and in such event that issue may be tried first. for proper appreciation order xiv rule.2 may be extracted hereunder:8. order xiv rule.2:court to pronounce judgment on all issues(1) notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule(2), pronounce judgment on all issues.(2) where such issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-(a) the jurisdiction of the court, or(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.8. a plain reading of rule 2 of order xiv cpc shows that an issue may be tried as a preliminary issue only where it is an issue of law relating to jurisdiction of the court or a bar to the suit created by any law for the time being in force and where the case or any part thereof may be disposed of on such issue.9. in the case on hand, the issues were already settled as provided under order xiv rule 1. admittedly there is a specific issue with regard to the sufficiency of the court fee paid by the plaintiffs. the question that arose for consideration is whether the said issue relating to sufficiency of the court fee requires decision as a preliminary issue under order xiv rule 2 cpc.10. at the outset it is to be noted that the contention of the defendants that the court fee paid by the plaintiffs is not sufficient is based on the ground that the 3rd defendant is the absolute owner of items 2 to 4 of plaint-a schedule property having acquired title under gift deeds dated 26.12.2001 and 18.10.2002 and a will dated 22.1.1997 and that she has been in exclusive possession and enjoyment of the same. therefore according to the 2nd defendant section 34(1) of the act is applicable and the court fee shall be computed on the market value of the items 2 to 4 of plaint-a schedule property. whether the 3rd defendant holds title to the said properties and whether they are in her exclusive possession or not are questions of fact which can be decided only after full-fledged trial. thus it is apparent that the issue relating to the sufficiency of court fees is not a mere issue of law.11. it is also relevant to note that since the suit is pending in the district court which has unlimited pecuniary jurisdiction, the question of jurisdiction does not arise at all. in the circumstances, order xiv rule 2(2) of cpc is not attracted so as to decide the issue relating to court fees as a preliminary issue.12. there is yet another reason to declare the order under revision as erroneous.13. under section 11 (2) of a.p. court fees and suits valuation act, 1956, all questions arising on the plea of the defendant that the subject matter of the suit has not been properly valued or that the court fee paid is not sufficient shall be heard and decided only before the hearing of the suit as contemplated by order xviii cpc.14. section 11 of the a.p. court fees and suits valuation act, 1956 reads as under:11. decision as to proper fee:(1) (a) in every suit the court shall before ordering the plaint to be registered decide on the allegation contained in the plaint and on the materials furnished by the plaintiff the proper fee payable thereon.(b) the decision of the court under clause(a), regarding the proper fee payable shall be subject to review, from time to time, as occasion requires.(2) any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. all questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by order xviii in the first schedule to the cpc. if the court decides that the subject-matter of the suit is not properly valued or that the fee paid is not sufficient, the court shall fix a date before which the subject- matter of the suit shall be valued in accordance with the court's decision and the deficit fee shall be paid. if within the time allowed, the subject-matter of the suit is not valued in accordance with the court's decision or if the deficit fee is not paid, the plaint shall be rejected and the court shall pass such order as it deems just regarding cost of the suit.(3) ....(4) ....15. it is clear from a plain reading of sub-section (2) of section 11 that the questions arising on the plea of the defendants that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, cannot be heard and decided after the hearing of the suit as contemplated by order xviii cpc.16. though the word hearing is not defined, rule 2 (g) of a.p. civil rules of practice and circular orders, 1980 defines the expression first hearing. as per rule 2 (g) first hearing includes the hearing of the suit for settlement of the issues and any adjournment therefor.17. it is relevant to note that the expression first hearing has been employed in many provisions in the civil procedure code, 1908 such as order x rule 1, order xiv rule 5 & rule 6 and order xv.18. in view of the definition of first hearing noticed above, there can be no dispute that once the issues are settled and the trial has started the hearing of the suit as contemplated by order xviii of c.p.c. begins and it comes to an end only with the delivery of the judgment or where a suit is posted for judgment when it is reserved. in the present case by the date of filing of the application by the 2nd defendant under section 11 (2) of the a.p. court fees and suits valuation act, 1956 admittedly pw.1 on behalf of the plaintiffs was examined in chief and he was also cross examined to some extent. in the circumstances, it is clear that the hearing of the suit has begun. therefore, it is not permissible to hear and decide the issue relating to sufficiency of court fees as a preliminary issue as sought by the 2nd defendant. the view expressed by me is fortified by the decisions of this court in o. bhaskara rao v. a. saibabu : 1993(2)alt475 and valluri sri vasudeva siva prasad v. alluri kurminaidu : 1998(5)ald1 wherein while interpreting an identical provision under section 11 (4) of the a.p. courts fees and suits valuation act, 1956, it was held that determination of issue regarding the value for the purpose of determining the jurisdiction of courts after commencement of trial was illegal.19. in satyanarayana v. om prakash and ors. 1989(3) alt 629 (d.b) a division bench of this court further held that the expression in section 11 (2) of the a.p. court fees and suits valuation act, 1956 all questions arising on such pleas shall be heard and decided before the hearing of the suit is only a directory and not mandatory. it is further explained by the division bench as under:.the purpose for which the provision is made is only to see that proper court fee is collected from the plaintiff by the court and the defendant is only given a right to point out regarding the deficiency of the court-fee paid and that should be limited and and should not be extended to enable him to protract the trial of the suit. the question as to in what cases the issue relating to the payment of court-fee should be tried as a preliminary issue and in what cases the said issue should be tried jointly along with the other issues should be left to the discretion of the trail court. as laid down by the supreme court, the defendant is not aggrieved by any such decision and therefore merely because he is given a right to contest the valuation, he cannot be permitted to use the same as a weapon to protract the litigation. only in cases where the question of payment of court-fee affects the very pecuniary jurisdiction, it is necessary for the court to investigate and examine and then decide it is a preliminary issue, if it is satisfied that the jurisdictional question is involved. in such cases only, the defendant can move the higher courts on the ground that the dispute regarding court-fee is not tried as a preliminary issue. in other disputes relating to the payment of court-fee, it should be left to the discretion of the court to try the same as preliminary issue or to try jointly along with other issues. the discretion should be exercised by it after necessary investigation into the plaint allegations and other material including the objections by the defendant. 20. for the aforesaid reasons, the contention of the 2nd defendant that the issue relating to the payment of court fee shall be decided as a preliminary issue is untenable and the court below committed an error in allowing i.a. no. 1115 of 2007 merely on the ground that there was a triable point regarding the controversy.21. the court below failed to see that after the completion of the trial if the court comes to a conclusion that if the court fees is not properly paid it can grant reasonable time to the plaintiff for payment of the deficit court fees. moreover, since the suit has been filed in a district court which has unlimited pecuniary jurisdiction the question of jurisdiction of the court does not arise at all in the present case.22. in the circumstances, the order under revision being erroneous and illegal is hereby set aside and i.a. no. 1115 of 2007 shall stand dismissed making it clear that the additional issue no. 3 dated 06-07-2007 relating to sufficiency of court fee shall be heard and decided in accordance with law along with other issues in the main suit without being influenced by any of the observations made in this order.23. in the result, the civil revision petition is allowed. no costs.

Judgment:
ORDER

G. Rohini, J.

1. The petitioner in this revision petition is the plaintiff No. 1 in O.S. No. 2 of 2003 on the file of the Court of the III-Additional District Judge (FTC) Anantapur, filed for partition of the suit schedule properties claiming that the plaintiffs are entitled to 1/6th share each.

2. The 1st respondent herein is the defendant No. 2 whereas the respondents 2 and 3 herein are the defendant 3 and 4 respectively in the suit. The 4th respondent herein is the plaintiff No. 2. The defendant No. 1 died during the pendency of the suit.

3. The defendants filed written statement denying the plea of the plaintiffs that the suit schedule properties were the joint family properties. While claiming that the 3rd defendant was the absolute owner of items 2 to 4 of Plaint-A schedule properties and the same were in her exclusive possession and enjoyment, it was further contended that the plaintiffs ought to have paid the court fee under Section 34(1) of the A.P. Court Fee and Suits Valuation Act,1956 ( for short 'the Act') in respect of the said items and the court fee of Rs. 200/- paid under Section 34(2) of the Act was not sufficient. On the basis of the said pleadings, issues were settled by the Court below including a specific issue as to the correctness of the Court fee as Additional Issue No. 3

4. Thereafter while the trial was in progress, the 2nd defendant filed I.A. No. 1115 of 2007 with a prayer to try the Additional Issue No. 3 relating to the correctness of court fee paid as a preliminary issue. Though the 1st plaintiff filed a counter and opposed, the said petition was allowed by the Court below by order dated.09-09-2008 holding that there was a triable point regarding the controversy.

5. Aggrieved by the said order dated.09-09-2008 the present Civil Revision Petition is filed by the plaintiff No. 1.

6. I have heard the learned Counsel for both the parties and perused the material on record.

7. Order XIV Rule 1 of CPC, provides that the issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other and that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. As could be seen from Order XIV Rule.1 (5), at the first hearing of the suit the Court shall ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Order XIV Rule 2 further provides that the judgment shall be pronounced by the Court on all issues except where the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only and in such event that issue may be tried first. For proper appreciation Order XIV Rule.2 may be extracted hereunder:

8. Order XIV Rule.2:

Court to pronounce judgment on all issues

(1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule(2), pronounce judgment on all issues.

(2) Where such issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

8. A plain reading of Rule 2 of Order XIV CPC shows that an issue may be tried as a preliminary issue only where it is an issue of law relating to jurisdiction of the Court or a bar to the suit created by any law for the time being in force and where the case or any part thereof may be disposed of on such issue.

9. In the case on hand, the issues were already settled as provided under Order XIV Rule 1. Admittedly there is a specific issue with regard to the sufficiency of the Court fee paid by the plaintiffs. The question that arose for consideration is whether the said issue relating to sufficiency of the Court fee requires decision as a preliminary issue under Order XIV Rule 2 CPC.

10. At the outset it is to be noted that the contention of the defendants that the Court fee paid by the plaintiffs is not sufficient is based on the ground that the 3rd defendant is the absolute owner of items 2 to 4 of Plaint-A Schedule Property having acquired title under gift deeds dated 26.12.2001 and 18.10.2002 and a will dated 22.1.1997 and that she has been in exclusive possession and enjoyment of the same. Therefore according to the 2nd defendant Section 34(1) of the Act is applicable and the Court fee shall be computed on the market value of the items 2 to 4 of Plaint-A Schedule Property. Whether the 3rd defendant holds title to the said properties and whether they are in her exclusive possession or not are questions of fact which can be decided only after full-fledged trial. Thus it is apparent that the issue relating to the sufficiency of Court fees is not a mere issue of law.

11. It is also relevant to note that since the suit is pending in the District Court which has unlimited pecuniary jurisdiction, the question of jurisdiction does not arise at all. In the circumstances, Order XIV Rule 2(2) of CPC is not attracted so as to decide the issue relating to court fees as a preliminary issue.

12. There is yet another reason to declare the order under Revision as erroneous.

13. Under Section 11 (2) of A.P. Court Fees and Suits Valuation Act, 1956, all questions arising on the plea of the defendant that the subject matter of the suit has not been properly valued or that the Court fee paid is not sufficient shall be heard and decided only before the hearing of the suit as contemplated by order XVIII CPC.

14. Section 11 of the A.P. Court Fees and Suits Valuation Act, 1956 reads as under:

11. Decision as to proper fee:

(1) (a) In every suit the Court shall before ordering the plaint to be registered decide on the allegation contained in the plaint and on the materials furnished by the plaintiff the proper fee payable thereon.

(b) The decision of the Court under Clause(a), regarding the proper fee payable shall be subject to review, from time to time, as occasion requires.

(2) Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the CPC. If the Court decides that the subject-matter of the suit is not properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the subject- matter of the suit shall be valued in accordance with the Court's decision and the deficit fee shall be paid. If within the time allowed, the subject-matter of the suit is not valued in accordance with the Court's decision or if the deficit fee is not paid, the plaint shall be rejected and the Court shall pass such order as it deems just regarding cost of the suit.

(3) ....

(4) ....

15. It is clear from a plain reading of Sub-section (2) of Section 11 that the questions arising on the plea of the defendants that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, cannot be heard and decided after the hearing of the suit as contemplated by Order XVIII CPC.

16. Though the word hearing is not defined, Rule 2 (g) of A.P. Civil Rules of Practice and Circular Orders, 1980 defines the expression first hearing. As per Rule 2 (g) first hearing includes the hearing of the suit for settlement of the issues and any adjournment therefor.

17. It is relevant to note that the expression first hearing has been employed in many provisions in the Civil Procedure Code, 1908 such as Order X Rule 1, Order XIV Rule 5 & Rule 6 and Order XV.

18. In view of the definition of first hearing noticed above, there can be no dispute that once the issues are settled and the trial has started the hearing of the suit as contemplated by Order XVIII of C.P.C. begins and it comes to an end only with the delivery of the judgment or where a suit is posted for judgment when it is reserved. In the present case by the date of filing of the application by the 2nd defendant under Section 11 (2) of the A.P. Court Fees and Suits Valuation Act, 1956 admittedly PW.1 on behalf of the plaintiffs was examined in chief and he was also cross examined to some extent. In the circumstances, it is clear that the hearing of the suit has begun. Therefore, it is not permissible to hear and decide the issue relating to sufficiency of Court fees as a preliminary issue as sought by the 2nd defendant. The view expressed by me is fortified by the decisions of this Court in O. Bhaskara Rao v. A. Saibabu : 1993(2)ALT475 and Valluri Sri Vasudeva Siva Prasad v. Alluri Kurminaidu : 1998(5)ALD1 wherein while interpreting an identical provision under Section 11 (4) of the A.P. Courts Fees and Suits Valuation Act, 1956, it was held that determination of issue regarding the value for the purpose of determining the jurisdiction of Courts after commencement of trial was illegal.

19. In Satyanarayana v. Om Prakash and Ors. 1989(3) ALT 629 (D.B) a Division Bench of this Court further held that the expression in Section 11 (2) of the A.P. Court Fees and Suits Valuation Act, 1956 all questions arising on such pleas shall be heard and decided before the hearing of the suit is only a directory and not mandatory. It is further explained by the Division Bench as under:.the purpose for which the provision is made is only to see that proper court fee is collected from the plaintiff by the Court and the defendant is only given a right to point out regarding the deficiency of the Court-fee paid and that should be limited and and should not be extended to enable him to protract the trial of the suit. The question as to in what cases the issue relating to the payment of Court-fee should be tried as a preliminary issue and in what cases the said issue should be tried jointly along with the other issues should be left to the discretion of the trail court. As laid down by the Supreme Court, the defendant is not aggrieved by any such decision and therefore merely because he is given a right to contest the valuation, he cannot be permitted to use the same as a weapon to protract the litigation. Only in cases where the question of payment of court-fee affects the very pecuniary jurisdiction, it is necessary for the court to investigate and examine and then decide it is a preliminary issue, if it is satisfied that the jurisdictional question is involved. In such cases only, the defendant can move the higher Courts on the ground that the dispute regarding court-fee is not tried as a preliminary issue. In other disputes relating to the payment of court-fee, it should be left to the discretion of the court to try the same as preliminary issue or to try jointly along with other issues. The discretion should be exercised by it after necessary investigation into the plaint allegations and other material including the objections by the defendant.

20. For the aforesaid reasons, the contention of the 2nd defendant that the issue relating to the payment of court fee shall be decided as a preliminary issue is untenable and the Court below committed an error in allowing I.A. No. 1115 of 2007 merely on the ground that there was a triable point regarding the controversy.

21. The Court below failed to see that after the completion of the trial if the Court comes to a conclusion that if the Court fees is not properly paid it can grant reasonable time to the plaintiff for payment of the deficit Court fees. Moreover, since the suit has been filed in a District Court which has unlimited pecuniary jurisdiction the question of jurisdiction of the Court does not arise at all in the present case.

22. In the circumstances, the order under Revision being erroneous and illegal is hereby set aside and I.A. No. 1115 of 2007 shall stand dismissed making it clear that the Additional Issue No. 3 dated 06-07-2007 relating to sufficiency of court fee shall be heard and decided in accordance with law along with other issues in the main suit without being influenced by any of the observations made in this order.

23. In the result, the Civil Revision Petition is allowed. No costs.