In Re: Javvaji Venkateshwarlu - Court Judgment

Excerpt:
civil - stamp papers - section 12 of limitation act, 1963 - wherever court calls for stamp papers and issues notice specifying time for same it must be held that party who completed its work in said time has done it on first day itself - any time taken by party for completing such work can be considered as time taken by court - time cannot be counted against party for computation of limitation period and party cannot be penalized for same. - 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 in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured.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/-. - chettyar ,air 1928 pc 103. their lordships have held in that case as follows :the word 'requisite' is a strong word;order1. i have pursed the decision of justice h. a. ayyar in unreported decision in s. r. 46322 of 1963 dated 30-6-1967. it relates to a case where the party had resorted to a combined calculation. even there the learned judge says that the period of six days, taken by the office to call for the stamps for decree, should be allowed in favour of the appellant. the learned judge says that from 1-4-1963 to 16-4-1963, when the copy application was with the office, the time cannot run against the appellant. as this case relates to a combined calculation, i do not think, that this case has any application to the facts of present case.2. the other cases mentioned in the office note saying that the six days lost, by the carelessness or the negligence of the party, should not be allowed in favour of the party, are not in any way relevant in this case.3. as per rule 129 of civil rules of practice which says that every day between the hours of 3 and 5, p. m. a list showing the applications in which the records have been received and the number of stamp papers required, shall be prepared and affixed to the court's notice board. such list shall remain suspended for three days, or, if the last day is a holiday, till the next court day. if the required stamp papers have not been deposited by 3. p. m. on the fourth day, counting that on which the list was suspended or, if the fourth day is a holiday then a on the next court day, the application shall be struck off. this rule therefore contemplates that the copy application should be kept with the office until the stamp papers necessary for taking out copies are filed into court, by suspending the list for a period of three days. during that period the copy of application is not returned to the party. under rule 128 (a) when the applications are returned for rectification of defects, a limit of seven days shall be fixed for their representation. therefore this rule also contemplates return of the copy of application for rectification within seven days.4. in the case of calling for stamp papers or calling for printing charges, i do not think that the time stipulated in the notice board for calling for stamp papers or printing charges, can be said to be the time lost by the party on account of his time requisite for the court to make the copies ready. it must be treated to be in the same manner as the time taken by the office for calling for or ascertaining the necessary stamp papers of printing charges to be paid by the party.4 -a. as is indicated in rule 127 of civil rules of practice, where the copy applications are not accompanied by requisite number of stamp papers or requisite amount printing charges, the civil rules of practice contemplate only calling for such stamp papers or printing charges within a particular period fixed by the court. if the stamps are filed or charges are paid within that time fixed, the party must be deemed to have complied with that direction of the court. if the party complies with that direction on the last date of the period (granted) by the court, he is deemed to have complied with the court direction on the first day of the direction, and the time taken for compliance by the party shall be time taken by the court as time requisite for supplying copies.5. for analogy we may refer to section 1498, c. p. c., where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the court may , in its discretion , at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be of such court-fee and upon such payment the document, in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.6. applying this analogy to rule 129 of civil rules of practice , whenever court calls for stamps it must be held that when the party complies with that requisition within the time stipulated in that notice, he must be deemed to have complied with that direction on the first day. it must therefore be treated as time requisite for preparing the certified copies.7. i may in this connection rely upon a decision of the privy council in jijibhoy n. surty v. t.s. chettyar , air 1928 pc 103. their lordships have held in that case as follows :'the word 'requisite' is a strong word; it may be regarded as meaning something more than the word 'required'. it means, properly required , and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. but for that time which is taken up by his opponent in drawing up the decree or by the official of the court in preparing and issuing the two documents, he is not responsible.'8. in view of this decision the time taken by the court in preparing and issuing the copy of the judgment and decree is not time for which the party should be held responsible. it should be deemed to be the time properly required by the court in getting the copy stamps from the party in order to enable it to prepare the certified copy. as stated by me already, the copy application is kept on the file and is not returned. it will be struck off only if within the time fixed in the notice the copy stamps have not been deposited or the printing charges have not been paid. until then the copy application is validly on the file of the court and there is no carelessness or negligence on the part of the litigant, in prosecuting the same. the mere fact that he has filed the stamp papers on the third day or the last day will not make the time taken by him from the date of the intimation suspending in the notice board for the deposit of copy stamps or printing charges, as the time spent by him due to carelessness or negligence.9. when the court requires a party to do a particular act by a particular time the party will be within his right in doing it within the time and he cannot be penalised for what he has done according to the directions of the court. in this view i am of the opinion that the time taken for filing of the copy stamps or payment of printing charges as per the directions of the court, cannot be counted against the party but it must be deemed to be the part of the time requisite by the court to furnish certified copies.10. in this view i am of the opinion that the order dated 1-8-1972 is correct and it does not need any alteration.11. order accordingly.

Judgment:
ORDER

1. I have pursed the decision of Justice H. A. Ayyar in unreported decision in S. R. 46322 of 1963 dated 30-6-1967. It relates to a case where the party had resorted to a combined calculation. Even there the learned Judge says that the period of six days, taken by the office to call for the stamps for decree, should be allowed in favour of the appellant. The learned Judge says that from 1-4-1963 to 16-4-1963, when the copy application was with the office, the time cannot run against the appellant. As this case relates to a combined calculation, I do not think, that this case has any application to the facts of present case.

2. The other cases mentioned in the office note saying that the six days lost, by the carelessness or the negligence of the party, should not be allowed in favour of the party, are not in any way relevant in this case.

3. As per Rule 129 of Civil Rules of Practice which says that every day between the hours of 3 and 5, P. M. a list showing the applications in which the records have been received and the number of stamp papers required, shall be prepared and affixed to the Court's notice Board. Such list shall remain suspended for three days, or, if the last day is a holiday, till the next Court day. If the required stamp papers have not been deposited by 3. P. M. on the fourth day, counting that on which the list was suspended or, if the fourth day is a holiday then a on the next Court day, the application shall be struck off. This rule therefore contemplates that the copy application should be kept with the office until the stamp papers necessary for taking out copies are filed into court, by suspending the list for a period of three days. During that period the copy of application is not returned to the party. Under Rule 128 (A) when the applications are returned for rectification of defects, a limit of seven days shall be fixed for their representation. Therefore this rule also contemplates return of the copy of application for rectification within seven days.

4. In the case of calling for stamp papers or calling for printing charges, I do not think that the time stipulated in the notice board for calling for stamp papers or printing charges, can be said to be the time lost by the party on account of his time requisite for the court to make the copies ready. It must be treated to be in the same manner as the time taken by the office for calling for or ascertaining the necessary stamp papers of printing charges to be paid by the party.

4 -A. As is indicated in Rule 127 of Civil Rules of Practice, where the copy applications are not accompanied by requisite number of stamp papers or requisite amount printing charges, the Civil Rules of Practice contemplate only calling for such stamp papers or printing charges within a particular period fixed by the Court. If the stamps are filed or charges are paid within that time fixed, the party must be deemed to have complied with that direction of the Court. If the party complies with that direction on the last date of the period (granted) by the Court, he is deemed to have complied with the Court direction on the first day of the direction, and the time taken for compliance by the party shall be time taken by the Court as time requisite for supplying copies.

5. For analogy we may refer to Section 1498, C. P. C., where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may , in its discretion , at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be of such Court-fee and upon such payment the document, in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance.

6. Applying this analogy to Rule 129 of Civil Rules of Practice , whenever Court calls for stamps it must be held that when the party complies with that requisition within the time stipulated in that notice, he must be deemed to have complied with that direction on the first day. It must therefore be treated as time requisite for preparing the certified copies.

7. I may in this connection rely upon a decision of the Privy Council in Jijibhoy N. Surty v. T.S. Chettyar , AIR 1928 PC 103. Their Lordships have held in that case as follows :

'The word 'requisite' is a strong word; it may be regarded as meaning something more than the word 'required'. It means, properly required , and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. But for that time which is taken up by his opponent in drawing up the decree or by the official of the Court in preparing and issuing the two documents, he is not responsible.'

8. In view of this decision the time taken by the Court in preparing and issuing the copy of the Judgment and decree is not time for which the party should be held responsible. It should be deemed to be the time properly required by the Court in getting the copy stamps from the party in order to enable it to prepare the certified copy. As stated by me already, the copy application is kept on the file and is not returned. It will be struck off only if within the time fixed in the notice the copy stamps have not been deposited or the printing charges have not been paid. Until then the copy application is validly on the file of the Court and there is no carelessness or negligence on the part of the litigant, in prosecuting the same. The mere fact that he has filed the stamp papers on the third day or the last day will not make the time taken by him from the date of the intimation suspending in the notice board for the deposit of copy stamps or printing charges, as the time spent by him due to carelessness or negligence.

9. When the Court requires a party to do a particular act by a particular time the party will be within his right in doing it within the time and he cannot be penalised for what he has done according to the directions of the Court. In this view I am of the opinion that the time taken for filing of the copy stamps or payment of printing charges as per the directions of the Court, cannot be counted against the party but it must be deemed to be the part of the time requisite by the Court to furnish certified copies.

10. In this view I am of the opinion that the order dated 1-8-1972 is correct and it does not need any alteration.

11. Order accordingly.