United India Insurance Co. Ltd. Vs. Lalu and ors. - Court Judgment

Excerpt:
- section 2(f): [dipak misra, k.k. lahoti & rajendra menon, jj] service tax - packaging and bottling of liquor whether amounts to manufacture within meaning of section 2(f) of central excise act 1944? finance act 932 of 1994), section 65 (76 b) (as amended on 16.6.2005) - held, the first limb of the inclusive definition of the manufacture under section 2(f) of central excise act has a very wide connotation. as the definition clause lays down an inclusive facet, the term manufacture has to be construed in a natural and plain manner and would include any process incidental or ancillary to the completion of a manufactured product. keeping in view the context in which the term manufacture has been used, it would take in its fold incidental and ancillary process in the manufacture or finishing of any manufactured product. it does not leave any room for doubt that an allied process should be integral and inextricable part of manufacture of completeness and presentability of the manufactured product. section 65(76b) of finance act used the words but it does not include. thus it is a definition which has the inclusive as well as exclusive facet. by virtue of the same it may include certain things and exclude others. it is well settled principle of law that a definition is not to be read in isolation and has to read in context of phrase which it defines, releasing that function of a definition is to give precision and certainty to the word or phrase which would otherwise be vague and uncertain. regard being had to the exclusionary fact in the finance act, though a limited one it would exclude the manufacturing process as defined under section 2(f) of the 1944 act. keeping in view the aforesaid dictionary clauses and circulars issued by the c.b.e.c. it is quite luminescent that would manufacture has to be understood in a broader sense and not to be confined or restricted to the excisable product in the act. it would include all processes which amount to manufacture whether or not the final product is an excisable product. in the process of manufacturing of country spirit, the over proof spirit which is not potable is reduced to issuable strength, which is potable. colouring and flavouring agents are added at the time of maturation. thereafter the liquor is supplied in sealed bottles to the retail contractors. this is the process of treatment given to over proof spirit in order to render it fit for human consumption in the form of country liquor. if the process is analysed there cannot be any scintilla of doubt that the process involves the manufacturing one under the provisions of section 2(f) of central excise act, 1944. as per the m.p. country spirits rules as well as clause 6 of the tender conditions it is mandatory for a distiller to supply country liquor in sealed bottles and not otherwise. therefore, packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of section 2 central excise act, 1944 in view of the definition contained in section 65(76b) of the finance act especially keeping in view the exclusionary facet and further regard being had to the circular issued by central board of excise and customs. - in the opinion of the tribunal, it was held that since insurance company failed to file any documentary evidence to support this defence, no relief can be granted in favour of insurance company as prayed by them.ordera.m. sapre, j.1. the decision rendered in this appeal shall also decide the other connected misc. appeal no. 894/1998, as both these appeals arise out of the same impugned award and in fact both these appeals are in the nature of cross appeals. the impugned award is dated 9.5.1998, rendered by learned vii a.m.a.c.t., indore, in claim case no. 404/1995.2. on 13.6.1995, the respondent no. 1 - lalu, while going on a vehicle along with his one relative met with an accident with one matador, bearing no. mp-09-s-0213 as a result of this accident lalu suffered certain injuries. he was taken to the hospital where he received treatment. he also underwent operations where his spleen was removed. this led to filing of a claim petition by lalu in the court of vii a.m.a.c.t., indore.3. this claim petition was contested by appellant (insurance company) as also by the owner and driver. indeed owner and driver remained ex parte and only appellant contested claim petition. by impugned award, tribunal awarded a sum of rs. 51,000/- of the injuries that lalu sustained in the accident. this award was to carry interest @ 12% p.a. it is this award, which is challenged by the insurance company in m.a. no. 611/1998, whereas lalu has felt dissatisfied with what is awarded to him and has accordingly filed the appeal claiming more compensation. according to him what is award to him is inadequate.4. this is how the entire controversy is again subject matter of these two appeals.5. heard mr. v.p. saraf, learned counsel for the appellant and mr. s.s. kemkar, learned counsel for respondent no. 1. none for the other respondents.6. the counsel for the appellant (insurance company) argued that insurance company should have been exonerated from the liability in question. according , to him. it was later on noticed that the cheque given by the owner of the offending vehicle towards premium was dishonoured resulting in exoneration of the insurance company from its liability. according to him when the cheque was dishonoured it would mean that there was no insurance of the offending vehicle with them, and, therefore, no liability could have fastened upon the insurance company. in the opinion of the tribunal, it was held that since insurance company failed to file any documentary evidence to support this defence, no relief can be granted in favour of insurance company as prayed by them. the appellant (insurance company) filed certain documents for the first time in this appeal invoking the powers of order 41 rule 47. on the strength of these documents it is urged that a case for exoneration is made out.7. in my opinion, the aforesaid submission made by the learned counsel for the appellant (insurance company) has no substance. indeed it is covered by a supreme court judgment reported in air 1998 sc 588, whereby their lordships have held that the liability insofar as it relates to 3rd party, it is binding upon the insurance company and such defences are not available in support cases arising out of 3rd party insurance. accordingly and on this basis insurance company is held liable to indemnify if the offending vehicle is involved in the accident resulting in any injury to the 3rd party. i, therefore, dismiss the appeal, this being the only issue raised by the appellant in this appeal. accordingly m.a. no. 611/1998 is dismissed.8. this takes me to the appeal preferred by lalu being m.a. no. 894/1998 seeking enhancement of compensation claimed for the injuries sustained. the tribunal awarded a sum of rs. 25,000/- insofar as permanent disability issue was concerned, a sum of rs. 5,000/- was awarded for mental pain and sufferings and a sum of rs. 21,000/- towards medical expenses. in all, therefore, a sum of rs. 55,000/- was awarded towards total damages.9. having given anxious consideration to the issue of enhancement, in my opinion i am inclined to enhance the compensation awarded to lalu relating to expenses which he incurred towards medical, as observed supra the tribunal has awarded a sum of rs. 21,000/-. in my opinion, looking to the nature of injuries, treatment undergone, the claimant (lalu) is entitled for a sum of rs. 25,000/- as against rs. 21,000/-. admittedly, the patient is required to spend enormous amount in the hospital in payment of bills towards fees and various other heads. it is not practically possible for a patient to obtain bills for each and every item. it is admitted that claimant did suffer injury and he did undertake the expensive medical treatment for the injuries that he has suffered. it is for this reason, that 1 am inclined to enhance the compensation under the medical head from rs. 21,000/- to rs. 25,000/-.10. accordingly the impugned award is modified to the extent that compensation is enhanced by a sum of rs. 4,000/-. appeal is accordingly partly allowed. the enhanced compensation shall carry interest rate which is awarded by the tribunal. appellant is also entitled for a cost to be born by the respondent (insurance company). cost rs. 500/-.

Judgment:
ORDER

A.M. Sapre, J.

1. The decision rendered in this appeal shall also decide the other connected Misc. Appeal No. 894/1998, as both these appeals arise out of the same impugned award and in fact both these appeals are in the nature of cross appeals. The impugned award is dated 9.5.1998, rendered by learned VII A.M.A.C.T., Indore, in Claim Case No. 404/1995.

2. On 13.6.1995, the respondent No. 1 - Lalu, while going on a vehicle along with his one relative met with an accident with one Matador, bearing No. MP-09-S-0213 as a result of this accident Lalu suffered certain injuries. He was taken to the hospital where he received treatment. He also underwent operations where his spleen was removed. This led to filing of a claim petition by Lalu in the Court of VII A.M.A.C.T., Indore.

3. This claim petition was contested by appellant (Insurance Company) as also by the owner and driver. Indeed owner and driver remained ex parte and only appellant contested claim petition. By impugned award, Tribunal awarded a sum of Rs. 51,000/- of the injuries that Lalu sustained in the accident. This award was to carry interest @ 12% p.a. It is this award, which is challenged by the Insurance Company in M.A. No. 611/1998, whereas Lalu has felt dissatisfied with what is awarded to him and has accordingly filed the appeal claiming more compensation. According to him what is award to him is inadequate.

4. This is how the entire controversy is again subject matter of these two appeals.

5. Heard Mr. V.P. Saraf, learned Counsel for the appellant and Mr. S.S. Kemkar, learned Counsel for respondent No. 1. None for the other respondents.

6. The Counsel for the appellant (Insurance Company) argued that Insurance Company should have been exonerated from the liability in question. According , to him. It was later on noticed that the cheque given by the owner of the offending vehicle towards premium was dishonoured resulting in exoneration of the Insurance Company from its liability. According to him when the cheque was dishonoured it would mean that there was no insurance of the offending vehicle with them, and, therefore, no liability could have fastened upon the Insurance Company. In the opinion of the Tribunal, it was held that since Insurance Company failed to file any documentary evidence to support this defence, no relief can be granted in favour of Insurance Company as prayed by them. The appellant (Insurance Company) filed certain documents for the first time in this appeal invoking the powers of Order 41 Rule 47. On the strength of these documents it is urged that a case for exoneration is made out.

7. In my opinion, the aforesaid submission made by the learned Counsel for the appellant (Insurance Company) has no substance. Indeed it is covered by a Supreme Court judgment reported in AIR 1998 SC 588, whereby Their Lordships have held that the liability insofar as it relates to 3rd party, it is binding upon the Insurance Company and such defences are not available in support cases arising out of 3rd party insurance. Accordingly and on this basis Insurance Company is held liable to indemnify if the offending vehicle is involved in the accident resulting in any injury to the 3rd party. I, therefore, dismiss the appeal, this being the only issue raised by the appellant in this appeal. Accordingly M.A. No. 611/1998 is dismissed.

8. This takes me to the appeal preferred by Lalu being M.A. No. 894/1998 seeking enhancement of compensation claimed for the injuries sustained. The Tribunal awarded a sum of Rs. 25,000/- insofar as permanent disability issue was concerned, a sum of Rs. 5,000/- was awarded for mental pain and sufferings and a sum of Rs. 21,000/- towards medical expenses. In all, therefore, a sum of Rs. 55,000/- was awarded towards total damages.

9. Having given anxious consideration to the issue of enhancement, in my opinion I am inclined to enhance the compensation awarded to Lalu relating to expenses which he incurred towards medical, as observed supra the Tribunal has awarded a sum of Rs. 21,000/-. In my opinion, looking to the nature of injuries, treatment undergone, the claimant (Lalu) is entitled for a sum of Rs. 25,000/- as against Rs. 21,000/-. Admittedly, the patient is required to spend enormous amount in the hospital in payment of bills towards fees and various other heads. It is not practically possible for a patient to obtain bills for each and every item. It is admitted that claimant did suffer injury and he did undertake the expensive medical treatment for the injuries that he has suffered. It is for this reason, that 1 am inclined to enhance the compensation under the medical head from Rs. 21,000/- to Rs. 25,000/-.

10. Accordingly the impugned award is modified to the extent that compensation is enhanced by a sum of Rs. 4,000/-. Appeal is accordingly partly allowed. The enhanced compensation shall carry interest rate which is awarded by the Tribunal. Appellant is also entitled for a cost to be born by the respondent (Insurance Company). Cost Rs. 500/-.