Ram Swaroop Ghamandilal JaIn Vs. Hazarilal Pyarelal - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 147; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] liability of insurer - third party insurance held, the insured who is a party to the insurance is not a third party for the purpose of chapter xi of the act, particularly section 147 thereof. thus, any person other than the insurer and the insured who are parties to the insurance policy is a third party. the insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the policy of insurance. hence, the mere fact that a passenger is a third party would not fasten liability on the insurer unless such liability arises under section 147 of the act or under the terms and conditions of the insurance policy. an employee is a third party inasmuch as he is not a party to the insurance policy. but merely because an employee is a third party, the insurance company would not be liable to compensate in case such employee suffers bodily injury or dies in an accident in which the motor vehicle is involved unless section 147 of the act fixes such liability on the insured or unless the terms and conditions of the contract of insurance fixes liability on the insurer. section 147 (1)(b) of the act provides that in order to comply with the requirements of chapter xi of the act, a policy of insurance must be a policy which insures the person or classes of persons specified in the policy to the extent specified in sub-section (2) against the liabilities mentioned in clauses (i) and (ii) thereunder. even if an employee is a passenger or a person travelling in a motor vehicle which is insured as per the requirements of sub-section (1) of section 147 of the act, the insurer will not be liable to cover any liability in respect of death or bodily injury of such employee unless such employee falls in one of the categories mentioned in sub-clauses (a), (b) and (c)of clause (i) of the proviso to sub-section (1)of section 147 of the act and further in cases where such employees fall under categories mentioned in sub-clauses (a), (b) and (c) of clause (i) of the proviso to sub-section (1`) of section 147 of the act, the insurer is liable only for the liability under the workmens compensation act, 1923. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. sections 147 & 96 & m.p. m.v. rules, 1994, rule 97; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] control of transport vehicles m.p. rules relate to provisions of control of transport vehicles and it cannot be adopted for interpreting sections 147 and 145 of the m.v. act to hold the insurer liable for death or bodily injury suffered by passenger. [national insurance co. ltd. v sarvanlal, 2004 (4) mpht 404 (d.b) overruled]. - to me it appears that it does not admit of two interpretations that these words embrace any appeal which may be filed or which had already been filed because the words are 'shall not apply to or affect any appeal'.thus, a careful perusal of this provision clearly goes to show that it excludes the operation of section 96(4) to any appeal against a decree passed in any suit instituted after the commencement of the amending act.ordertej shankar, j.1. whether in view of the provisions of section 97(2)(1) of the code of civil procedure (amendment) act, 1976 (no. 104 of 1976) the right of appeal in suits instituted prior to coming into force of the amending act are saved from the clutches of section 96(4), civil procedure code is only question canvassed in this second appeal arising out of a suit for recovery of rs. 3,000/- on the basis of a writing. the plaintiff claimed that the defendant had taken a sum of rs. 1,000/- as loan and executed a note in writing and he did not pay the amount in spite of demand. the suit was contested and the plaint allegations were denied. the learned trial court decreed the suit. an appeal was preferred against the decree passed by the trial court which has been dismissed by the learned appellate court on 3-9-1981 holding that the appeal was not maintainable and was covered by the provisions of section 96(4), civil procedure code as amended and as there was no question of law involved the appeal was dismissed.2. the contention of the learned counsel for the appellant is that there was a right of appeal under the law against appeals of original decrees under section 96, civil procedure code. by the aforesaid amending act, clause (4) was added and the right of appeal was restricted from a decree of any suit of the nature cognizable by courts of small causes when the amount of value of the subject-matter of the original suit did not exceed rs. 3,000/- to questions of law only. the learned counsel argued that this provision has no application in view of the saving clause i.e. section 97(2)(1) of the amending act.3. on the other hand, it has been contended that the suit was decided after the enforcement of the amending act and consequently the provisions of section 96(4) as stood amended applied. this is a very important question of law. under section 96 as it stood prior to the amendment by the amending act, 1976, an appeal lay from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from the decision of such court. the amending act i.e. civil procedure code (amendment) act, 1976 (no. 104 of 1976) introduced clause (4) which limited the right of appeal in any suit of the nature cognizable by courts of small causes when the amount or value of the subject-matter of the original suit does not exceed rs. 3,000/- to questions of law only. before the learned lower appellate court an objection was raised on behalf of the respondent that the appeal was not maintainable in view of section 96(4) and this contention prevailed with the lower appellate court. the learned court referred to air 1967 sc 344, vitthalbhai naranbhai patel v. commissioner of sales tax, m.p. and a decision of rajasthan high court reported in air 1981 raj. 14, bhurilal v. smt. shobhabai. it relied upon the decision in the case of bhurilal v. smt. shobhabai (supra) and held that the suit was decided after the coming into force of amending act, the provisions of section 96(4) applied.4. i have given my anxious consideration to the question involved in the case. it is necessary to reproduce the provisions of section 97(2)(1) of the amending act. it provides as under :'(1) the provisions of section 96 of the principal act as amended by section 33 of this act, shall not apply to or affect any appeal against the decree passed in any suit instituted before the commencement of the said section 33; and every such appeal shall be dealt with as if the said section 33 had not come into force;'5. it must be mentioned at the very outset that a right of appeal has been recognised by judicial decision as a right which vests in a suit or at the time of institution of original proceedings. any change in the law relating to appeals after institution of original proceedings which adversely touches this vested right is presumed not to be retrospective. in air 1957 sc 540, garikapati veeraya v. n. subbiah choudhary and others the apex court held:'the legal pursuits of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings.the right of appeal is not a mere matter of procedure but is a substantive right.the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties' thereto till the rest of the career of the suit.the right of appeal is vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.the vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.'thus, it is crystal clear that a right of appeal is a vested right and it can be taken away only by a subsequent enactment by making a provision expressly or by necessary intendment and not otherwise.6. now if we take into consideration the aforesaid provision of section 97(2)(1) we find that the words in italics are important. to me it appears that it does not admit of two interpretations that these words embrace any appeal which may be filed or which had already been filed because the words are 'shall not apply to or affect any appeal'. thus, a careful perusal of this provision clearly goes to show that it excludes the operation of section 96(4) to any appeal against a decree passed in any suit instituted after the commencement of the amending act. in the aforesaid authority of rajasthan high court the learned judge observed 'from the language of clause (1) it would appear that only pending appeals have been saved and they are required to be disposed of as if section 33 of the amendment act had not come into force.' i respectfully do not agree with this observation of the learned judge. in the aforesaid authority in case of garikapati veeraya (supra) the hon'ble supreme court also held :'the golden rule of construction is that, in the absence of any thing in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the act was passed. a cardinal rule of construction is that statutes should be interpreted, if possible, so as to respect vested right.'7. i have already said above that it cannot be disputed that right of appeal is a vested right as held by the apex court. in this view of the matter, i find myself unable to agree with the interpretation put by the learned judge of the rajasthan high court in the aforesaid authority. to my mind, all the appeals whether filed after the commencement of the act or pending at the time amending act came into force have to be disposed of as if section 33 of the amending act had not come into force. in this view of the matter, the view taken by the learned appellate court based on the aforesaid authority of the rajasthan high court does not appear to be correct. i, therefore, conclude that an appeal lies as of right against a decree passed in the present case as it was instituted prior to the coming into force of the aforesaid amending act i.e. on 1-2-1977. the learned appellate court should have decided the appeal on merits. as the appeal has not been heard on merits by the learned appellate court the case has to be remanded to the learned appellate court for deciding the appeal afresh on merits after hearing the parties. the appeal is accordingly allowed and the judgment and the decree passed by the learned appellate court is set aside. the case is remanded to the learned appellate court with the direction that it shall hear the appeal on merits and shall decide it in accordance with law. costs of this appeal shall, however, be borne by the parties under circumstances of the case.

Judgment:
ORDER

Tej Shankar, J.

1. Whether in view of the provisions of Section 97(2)(1) of the Code of Civil Procedure (Amendment) Act, 1976 (No. 104 of 1976) the right of appeal in suits instituted prior to coming into force of the Amending Act are saved from the clutches of Section 96(4), Civil Procedure Code is only question canvassed in this second appeal arising out of a suit for recovery of Rs. 3,000/- on the basis of a writing. The plaintiff claimed that the defendant had taken a sum of Rs. 1,000/- as loan and executed a note in writing and he did not pay the amount in spite of demand. The suit was contested and the plaint allegations were denied. The learned trial Court decreed the suit. An appeal was preferred against the decree passed by the trial Court which has been dismissed by the learned appellate Court on 3-9-1981 holding that the appeal was not maintainable and was covered by the provisions of Section 96(4), Civil Procedure Code as amended and as there was no question of law involved the appeal was dismissed.

2. The contention of the learned counsel for the appellant is that there was a right of appeal under the law against appeals of original decrees under Section 96, Civil Procedure Code. By the aforesaid Amending Act, clause (4) was added and the right of appeal was restricted from a decree of any suit of the nature cognizable by Courts of Small Causes when the amount of value of the subject-matter of the original suit did not exceed Rs. 3,000/- to questions of law only. The learned Counsel argued that this provision has no application in view of the saving clause i.e. Section 97(2)(1) of the Amending Act.

3. On the other hand, it has been contended that the suit was decided after the enforcement of the Amending Act and consequently the provisions of Section 96(4) as stood amended applied. This is a very important question of law. Under Section 96 as it stood prior to the amendment by the Amending Act, 1976, an appeal lay from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court. The Amending Act i.e. Civil Procedure Code (Amendment) Act, 1976 (No. 104 of 1976) introduced clause (4) which limited the right of appeal in any suit of the nature cognizable by Courts of Small Causes when the amount or value of the subject-matter of the original suit does not exceed Rs. 3,000/- to questions of law only. Before the learned lower appellate Court an objection was raised on behalf of the respondent that the appeal was not maintainable in view of Section 96(4) and this contention prevailed with the lower appellate Court. The learned Court referred to AIR 1967 SC 344, Vitthalbhai Naranbhai Patel v. Commissioner of Sales Tax, M.P. and a decision of Rajasthan High Court reported in AIR 1981 Raj. 14, Bhurilal v. Smt. Shobhabai. It relied upon the decision in the case of Bhurilal v. Smt. Shobhabai (supra) and held that the suit was decided after the coming into force of Amending Act, the provisions of Section 96(4) applied.

4. I have given my anxious consideration to the question involved in the case. It is necessary to reproduce the provisions of Section 97(2)(1) of the Amending Act. It provides as under :

'(1) the provisions of Section 96 of the principal Act as amended by Section 33 of this Act, shall not apply to or affect any appeal against the decree passed in any suit instituted before the commencement of the said Section 33; and every such appeal shall be dealt with as if the said Section 33 had not come into force;'

5. It must be mentioned at the very outset that a right of appeal has been recognised by judicial decision as a right which vests in a suit or at the time of institution of original proceedings. Any change in the law relating to appeals after institution of original proceedings which adversely touches this vested right is presumed not to be retrospective. In AIR 1957 SC 540, Garikapati Veeraya v. N. Subbiah Choudhary and others the Apex Court held:

'The legal pursuits of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings.

The right of appeal is not a mere matter of procedure but is a substantive right.

The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties' thereto till the rest of the career of the suit.

The right of appeal is vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

The vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.'

Thus, it is crystal clear that a right of appeal is a vested right and it can be taken away only by a subsequent enactment by making a provision expressly or by necessary intendment and not otherwise.

6. Now if we take into consideration the aforesaid provision of Section 97(2)(1) we find that the words in italics are important. To me it appears that it does not admit of two interpretations that these words embrace any appeal which may be filed or which had already been filed because the words are 'shall not apply to or affect any appeal'. Thus, a careful perusal of this provision clearly goes to show that it excludes the operation of Section 96(4) to any appeal against a decree passed in any suit instituted after the commencement of the Amending Act. In the aforesaid authority of Rajasthan High Court the learned judge observed 'From the language of clause (1) it would appear that only pending appeals have been saved and they are required to be disposed of as if Section 33 of the Amendment Act had not come into force.' I respectfully do not agree with this observation of the learned Judge. In the aforesaid authority in case of Garikapati Veeraya (supra) the Hon'ble Supreme Court also held :

'The golden rule of construction is that, in the absence of any thing in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. A cardinal rule of construction is that statutes should be interpreted, if possible, so as to respect vested right.'

7. I have already said above that it cannot be disputed that right of appeal is a vested right as held by the Apex Court. In this view of the matter, I find myself unable to agree with the interpretation put by the learned Judge of the Rajasthan High Court in the aforesaid authority. To my mind, all the appeals whether filed after the commencement of the Act or pending at the time Amending Act came into force have to be disposed of as if Section 33 of the Amending Act had not come into force. In this view of the matter, the view taken by the learned appellate Court based on the aforesaid authority of the Rajasthan High Court does not appear to be correct. I, therefore, conclude that an appeal lies as of right against a decree passed in the present case as it was instituted prior to the coming into force of the aforesaid Amending Act i.e. on 1-2-1977. The learned appellate Court should have decided the appeal on merits. As the appeal has not been heard on merits by the learned appellate Court the case has to be remanded to the learned appellate Court for deciding the appeal afresh on merits after hearing the parties. The appeal is accordingly allowed and the judgment and the decree passed by the learned appellate Court is set aside. The case is remanded to the learned appellate Court with the direction that it shall hear the appeal on merits and shall decide it in accordance with law. Costs of this appeal shall, however, be borne by the parties under circumstances of the case.