Kasturi Radhakrishna Murty Vs. Kasturi Lakshminarasamma - Court Judgment

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civil - salary - section 60 (1) of code of civil procedure, 1908 - appellant challenged order directing attachment of two-third of his basic salary for maintenance of respondent (wife) - appellant contended that respondent entitled to one-third of total emolument received by him - central government exempted all allowance other than basic salary under section 60 (1) from attachment - held, two-third of basic salary liable to attached for maintenance of respondent. - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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, of the firm view that the definition of 'salary' given in explanation 2 would apply to the expression 'salary' used in clause (i) as well as clause (i-a). it is pertinent to notice that the word 'salary' is not used in clause (h). however, the framers of the code specified clause (h) also in explanation 2 which defines 'salary'.simply because the expression used in clause (h) is only 'wages' and the word 'salary' is not mentioned therein, it cannot be said that any salary found to have been paid to any labourer or domestic servant apart from wages is not attachable. 10. for all the reasons stated, i am satisfied that no illegality has been committed by the lower court and the order of the court below is valid and perfectly justified.1. this civil miscellaneous appeal by the judgment-debtor gives rise to a short question of law relating to the scope and interpretation of the term 'salary' used in clauses (i) and (i-a) of the proviso to sub-section (i) of section 60 of the code of civil procedure.2. the material facts which lie in a short compass may be stated: the respondent-wife, who obtained a decree for a sum of rs. 9,918-65 ps. rs. 5,500/- towards her maintenance and the balance towards the value of her jewellery and costs, sought for attachment of the salary of her husband, the appellant herein, who is working as an upper division clerk in the office of the income-tax officer at the vijayawada. he is drawing a basic salary of rs. 192/- per mensem. in addition, he is getting rs. 122/-, rs. 25/- and rs. 21.75 towards dearness allowance, interim relief and house rent allowance respectively. the total emoluments would come to rs. 360-75 ps. the application of the appellant under section 47 and 151, c. p. c. to direct the respondent-decree-holder to furnish security before withdrawing the amount deposited by him into the lower court, was dismissed on the ground that she is entitled to attach two-thirds of his basic salary. hence this appeal.3. the contention of sri mallikarjuna rao, the learned counsel for the appellant, is that the court below should have deducted the one-third of the total emoluments received by his client, under clause (i-a) of the proviso to section 60(1) c.p.c. and thereafter exempted the other allowances under clause (1) of the same sub-section and hence, what the court below has done is illegal and unjust. this claim of the appellant is resisted by mr. y. g. krishnamurty, the learned counsel for the decree-holder contending inter alia that there is no merit in this appeal.4. in order to appreciate the respective contentions of the parties, it is necessary to read clauses (h), (i) and (i-a) and explanation no. 2 of the proviso to sub-section (1) of section 60 of the code of civil procedure:'provided that the following particulars shall not be liable to such attachment or sale, namely:---- (h) the wages of labourers and domestic servants whether payable in money or kind: (i) salary to the extent of the first two hundred rupees and one-half of the remainder in execution of any decree other than a decree for maintenance; explanation no. 2: in clauses (h) and (i_, 'salary' means the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1), derived by a person from his employment whether on duty or on leave.'5. section 60(1) makes all sale-able property, either moveable or immovable, belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power, liable to be proceeded against in execution of a decree obtained against him. the items of properties specified in clauses (a) to (p) appended to the proviso to sub-section (1) of section 60 are exempt from attachment or sale in execution of any decree. under clause (i), the first two hundred rupees of salary is exempt and one-half of the remainder is liable to the attached in execution of any decree other than a decree for maintenance. it has no application to the case of a maintenance decree. a maintenance decree-holder is entitled to attach two-thirds of the salary in execution of his or her decree as indicated in clause (i-a). the general exemption of the first two hundred rupees of salary provided for under clause (i) is not applicable to the case of attachment in execution of a maintenance decree. the difference in this regard between a maintenance decree and any other decree is understandable. the intendment and purpose of the exemption granted to an employee under clause (i) is to enable him to maintain himself and members of his family and facilitate the proper discharge of his duties as an employee irrespective of the debts incurred by him or decree obtained against him. if the general exemption of the first rs. 200/- of salary as provided under clause (i) is applied to the case of maintenance decree, it would cause much hardship to the maintenance decree-holders in cases where the salary of the judgment-debtor itself is rs. 200/- or less. in such cases, the maintenance decree-holders will not be able to get anything from the employees-judgment-debtors by executing the decrees. hence, the need for providing clause (i-a) has been felt. under clause (i-a), a maintenance decree-holder is entitled to proceed against two-thirds of the salary of the judgment-debtor.6. as the decree-holder in the present case is a maintenance decree-holder, the provisions of clause (i) are not attracted. it is clause (i-a) that is applicable in the present case. under clause (i-a), the decree-holder is certainly entitled to attach two-thirds of the salary of the judgment-debtor in execution of her decree for maintenance.7. it next falls for consideration as to what is the meaning of the term 'salary' used in clause (i-a) of the proviso to sub-section (1) of section 60 of the code. the expression 'salary' has been defined under explanation 2 as 'the total monthly emoluments, excluding any allowance declared exempt from attachment under the provisions of clause (1)'. under clause (1), any allowance declared exempt from attachment by a notification in the official gazette by the appropriate government and any subsistence grant or allowance made to a government servant while under suspension are exempt from attachment. the allowance permissible under clause (1) have to be first deducted from the total emoluments received by an employees to arrive at his salary. the total monthly emoluments so left after deducting the allowances permissible under clause (1) are termed to be 'salary' within the meaning of explanation 2. in the executing of a maintenance decree, two-thirds of such salary of the judgment-debtor can be attached. if the submission of the appellant that one-third of the total emoluments of the government servant should be deducted first under clause (i-a) and then from the balance of two-thirds, the allowances permissible under clause (i) should be deducted in order to arrive at the attachable salary is acceded to, it will result in in-justice apart from leading to anomalies. in that premise, one-third of the allowances permissible under clause (1) are first deducted and again they are sought to be deducted for the second time. no allowance can be permitted to be deducted more than once. when clause (1) permits the exemption of the entire emoluments specified therein in full, they have to be first deducted and thereafter the salary of which one-third is only exempt has to be taken into account. the intendment of the makers of the code would not have been in any other way. the words 'the following particulars shall not be liable to such attachment or sale' occurring in the proviso to sub-section (1) of section 60 must be construed in a reasonable, fair and proper manner. they cannot be interpreted so as to make any item exempt more than once.8. the learned counsel for the appellant pressed upon me that the meaning of the term 'salary' given in explanation 2 cannot be applied in construing the provisions of clause (i-a) as that clause is not specifically mentioned therein. true, as urged on behalf of the appellant, clause (i-a) is not specifically mentioned in explanation 2 which specifies only clauses (h) and (i). clause (i) mentioned in explanation 2 would, in my considered opinion, take in both clause (i) and clause (i-a) as both of them pertain to salary. the only difference between the two clauses is that clause (i-a) applies to the execution of maintenance decree whereas clause (i) is attracted in the case of execution of all decrees other than a decree for maintenance. i am therefore, of the firm view that the definition of 'salary' given in explanation 2 would apply to the expression 'salary' used in clause (i) as well as clause (i-a). it is pertinent to notice that the word 'salary' is not used in clause (h). however, the framers of the code specified clause (h) also in explanation 2 which defines 'salary'. simply because the expression used in clause (h) is only 'wages' and the word 'salary' is not mentioned therein, it cannot be said that any salary found to have been paid to any labourer or domestic servant apart from wages is not attachable. the salary of an employee, irrespective of the nomenclature, is exempt only to the extent indicated in clauses (j) and (i-a).9. in the light of the foregoing discussion, i shall consider the facts of the present case. the judgment-debtor, being an employee in the office of the income-tax officer, vijayawada, is a central government servant. the dearness allowances, house rent allowance and interim relief have been declared by the central government to be exempt from attachment under clause (i) of section 60 of the code of civil procedure. hence, the only amount that remains for consideration is rs. 192/- which is the basic salary of the judgment-debtor. two-thirds of this basic salary, i.e., rs. 128/- is liable to be attached as the exemption permissible under clause (i-a) is only in respect of one-third of the salary. the amount of rs. 120/- now attached by the court below is less than the two-thirds of the salary liable to be attached. hence, there is n violation of the provisions of clause (i-a) of the proviso of section 60 (1), c. p. c. in the case on hand.10. for all the reasons stated, i am satisfied that no illegality has been committed by the lower court and the order of the court below is valid and perfectly justified. this appeal, therefore, fails and is dismissed with costs.11. appeal dismissed.