Adigarla Simhachalam Vs. Adigarla Papamma - Court Judgment

Excerpt:
family - maintenance - section 18 of hindu adoption and maintenance act, 1956, sections 9 and 24 of hindu marriage act, 1955 and sections 10, 100 and 101 of code of civil procedure, 1908 - appeal deciding question whether wife whose suit for regular maintenance under section 18 is pending, entitled to file application under section 24 for interim maintenance during pendency of proceedings instituted by her husband for restitution of conjugal rights - object of granting maintenance under section 18 is different from awarding interim maintenance under section 24 - purpose of section 24 is to provide immediate relief for respondent to claim compensation and expenses of proceedings as regular maintenance suit generally take considerable time for adjudication - defence of section 10 not available to appellant as it was raised for first time. - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. - 70 of 1969 as well as in the suit for the maintenance already filed by her in the court of the district munsif, srungavarapukota. 24 are satisfied, the court is empowered to award an interim maintenance and expenses of the proceeding. the quantum of maintenance and the amount of expenses to be awarded depend upon the income of the applicant as well as the respondent. if the provisions of section 10 are satisfied, the proceedings in one court can be stayed on the application of the aggrieved party. we are not satisfied that section 10 can be taken advantage of by the appellant herein. therein, maintenance can be granted, if the conditions specified under section 18 of the act are satisfied but not otherwise. where two different statutes provide specifically for two different claims if the conditions specified therein are satisfied, either of them cannot be denied to the claimant simply on the ground that two reliefs have been claimed at one and the same time. judged from any angle we are satisfied that there in no illegality or just or valid ground for our interference with the order of the court below. 9. for all the reasons, we are of the firm view that this appeal is devoid of any merit and must therefore fail.kondaiah, j. 1. this appeal by the husband is directed against the order of the court of the subordinate judge, vizianagaram, directing him to pay the respondent an amount of rs. 250 /- towards expenses and rs. 40 /- per month towards maintenance pending the disposal of o. p. no. 20 of 1969 on its file filed by him for restitution of conjugal rights. 2. a suit instituted by the respondent, in the court of the district munsif, srungavarpukota for maintenance under section 18 of the hindu adoptions and maintenance act, 1956 is still pending. the appellant filed o. p. no. 20 of 1969 on the file of the lower court under section 9 of the hindu marriage act for restitution of conjugal rights. thereupon, she preferred i. a. no. 70 of 1969 under section 24 of the act for awarding interim maintenance and rs. 500 /- for costs and expenses of the proceeding for restitution of conjugal rights. this application was resisted by the appellant. however, the court below granted a sum of rs. 40 /- per month towards interim maintenance and a lump sum amount of rs. 250 /- towards costs and expenses of the o. p. hence this appeal. 3. the principal contention of sri v. jagannadharao, the learned counsel appearing for the appellant, is that the application for interim maintenance and costs is not maintainable, as the respondent is not entitled to claim maintenance in i. a. no. 70 of 1969 as well as in the suit for the maintenance already filed by her in the court of the district munsif, srungavarapukota. reliance on section 10 of the civil procedure code is placed by the learned counsel in support of his contention. the learned counsel appearing for the respondent contended contra. 4. the short question that falls for determination is whether a wife, whose suit for regular maintenance under section 18 of the hindu adoptions and maintenance act is pending, is entitled to file an application under section 24 of the hindu marriage act for interim maintenance during the pendency of the proceeding instituted by her husband for restitution of conjugal rights. 5. in order to appreciate the scope of the question and the respective contentions of the parties, it is necessary to refer to the material provisions of the hindu marriage act, 1955 and section 18 of the hindu adoptions and maintenance act. section 9 of the hindu marriage act ( hereinafter called the act ) provides for an application to be filed either by the husband or the wife for restitution of conjugal rights, if without reasonable excuse, either of the spouse has withdrawn from the society of the other. a proceeding for restitution of conjugal rights, for judicial separation or for divorce under sections 9, 10 and 13 receptively is a proceeding under the act within the meaning of section 24. section 24 enables a wife or a husband, as the case may be, to file an application seeking for maintenance during the pendency of any proceeding under the act and for expenses of the proceeding, if he or she has no independent income sufficient for his or her support. the right provided under section 24 is a separate and independent one. if the provisions of sec. 24 are satisfied, the court is empowered to award an interim maintenance and expenses of the proceeding. the quantum of maintenance and the amount of expenses to be awarded depend upon the income of the applicant as well as the respondent. the court has to exercise the power vested in it under section 24 fairly, reasonably and properly. the question of awarding interim maintenance under section 24 would arise only when the applicant has no independent income sufficient for his or her support and to meet the necessary expense of the proceeding. 6. section 10 of the civil procedure code prohibits any court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. if there is already a suit for maintenance in a court, another suit in some other court between the same parties for the same claim is barred. the intendment of section 10 is to prohibit any court from trying a suit in which the matter in issue is directly and substantially in issue in another suit previously instituted in that court or in another court. if the provisions of section 10 are satisfied, the proceedings in one court can be stayed on the application of the aggrieved party. provisions of the section 10 are in no way attracted in the instant case. they shall come into play only when the matter in issue before the district munsif's court, srungavarapukota, in the maintenance suit by the wife is the same as in the present o.p. even then the appellant can only file an application under section 10 to stay the proceedings in the court below. we are not satisfied that section 10 can be taken advantage of by the appellant herein. the suit filed by the respondent herein against the appellant for maintenance is under sec 18 of the hindu adoptions and maintenance act. therein, maintenance can be granted, if the conditions specified under section 18 of the act are satisfied but not otherwise. the cause of action for awarding maintenance in the original suit filed by the respondent is altogether different from the right accrued to her to claim maintenance pending the proceeding instituted by her husband for restitution of conjugal rights. her right to seek for interim maintenance and for costs of the proceeding arises under section 24 of the act, the provisions of which are altogether different from those of section 18 of the hindu adoptions and maintenance act. there is nothing in the act (hindu marriage act) or in the hindu adoptions and maintenance act which bars the respondent from claiming maintenance under section 24 of the former act, if she had preferred a suit for regular maintenance under the latter enactment. where two different statutes provide specifically for two different claims if the conditions specified therein are satisfied, either of them cannot be denied to the claimant simply on the ground that two reliefs have been claimed at one and the same time. the intendment and object of granting maintenance under sec. 18 of the hindu adoptions and maintenance act is different from that of awarding interim maintenance under sec. 24 of the act. the maintenance that can be granted under sect. 24 of the act is for the period during which the proceeding is pending before the court. that apart, the right to claim expenses of the proceeding under section 24 is an independent right given to the party. the very object and purpose of section 24 appears to be to provide immediate relief for the respondent under the act, to the claim maintenance and expenses of the proceeding irrespective of other circumstances, as the regular maintenance suit may take considerable time for adjudication. 7. that apart, the procedure prescribed under the code of civil procedure is applicable to the proceedings under the act, such procedure is only subject to the provisions of the act and the rules made by the high court in this behalf. section 10 of the civil procedure code cannot be used as a plea of defence but it can be invoked by a party only for obtaining stay of a proceeding in court. judged from any angle we are satisfied that there in no illegality or just or valid ground for our interference with the order of the court below. vide ramarichpal singh v. dayanand sarup, : air1955all309 . 8. we find another formidable obstacle for the appellant to succeed in the appeal. admittedly the plea based on sect. 10 of the civil procedure code, was not specifically raised in the lower court or taken in the memorandum of grounds of appeal. for the first time this has been urged by the learned counsel appearing for the appellant at the time of the arguments. hence the same cannot be permitted to be raised at this stage. 9. for all the reasons, we are of the firm view that this appeal is devoid of any merit and must therefore fail. 10. in the result, the appeal is dismissed with costs. 11. appeal dismissed.