Ram Swaroop Sharma and anr. Vs. Ram Murthi 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. - the burden of proving the fact that the driver was driving the vehicle without valid licence is on the insurance company as has been laid down by the apex court in large number of cases like narcinva v. kamat, 1985 acj 397 (sc). in that case also a similar question was asked in the cross-examination and the supreme court has held that the answer in the cross-examination is not to discharge the burden placed upon the insurance company and held that insurance company has failed to establish the fact that the driver was driving the vehicle without any valid licence and ultimately award was passed against the insurance company. 9. in view of the said judgment the insurance company in the present case has also failed to discharge the burden cast upon it to prove that the driver has no valid licence at the time of accident.s. samvatsar, j.1. this appeal is filed by the owner and driver of the vehicle involved in the accident challenging award dated 28.9.1995 passed by first additional motor accidents claims tribunal, bhind in claim case no. 25 of 1991.2. facts of the case are that on 14.6.90 the deceased ram mahesh was travelling in a tractor-trolley. tractor was registered as mp 06-7663. as per the allegations in the claim petition the deceased was going in the tractor to cut wood. the said tractor tumbled and the deceased was crushed under the trolley. the claimants, therefore, filed a claim petition against the present appellants and the insurance company, respondent no. 5, for compensation of the deceased ram mahesh.3. the tribunal awarded a compensation of rs. 74,000 with 12 per cent interest. however, the insurance company was exonerated from payment of compensation on the ground that the driver of the vehicle had no valid licence at the time of accident.4. the main contention of the appellant is that the alleged driver satyadev sharma, appellant no. 2, was not driving the vehicle at the time of accident and it was the deceased himself who was driving the vehicle. according to him the claimant has examined three witnesses to prove the accident. the said witnesses are pw 1 gandharv sharma, pw 2 ram murthi (claimant herself) and pw 3 sukhlal. from perusal of the statements of all the three witnesses it appears that none of them was present at the time of accident and they are not the eyewitnesses, therefore, their statements cannot be relied upon about the driver of the vehicle at the time of accident. on the other hand, respondents have examined satyadev sharma, the alleged driver as witness no. 2 who has denied that he was driving the vehicle. the other witnesses examined by the respondents and satyadev have stated that at the time of accident ram mahesh was driving the vehicle. all these witnesses claim to be eyewitnesses and were present at the time of accident.5. trial court disbelieved these witnesses and held that ram mahesh was not driving the vehicle and it was satyadev sharma who was driving the vehicle. the basis for this conclusion is the position of the dead body which was found on the spot. the said dead body was crushed under the trolley and not under the tractor which shows that the deceased himself must have been travelling in the trolley and was not sitting on the driving seat otherwise his body should have been found below the tractor. this approach of claims tribunal seems to be correct. it is pertinent to point out that claims tribunals are not the civil courts and the strict rule of evidence is not applicable to the claim cases. claims tribunal has wider powers than the civil courts for ascertaining the facts and controversies. in such circumstances even if other view is possible from the evidence, first appellate court should not interfere in the same as has been laid down by the supreme court in the case of madhusudan das v. narayani bai, air 1983 sc 114.6. the court below has, thus rightly concluded that satyadev was driving the vehicle at the time of the accident. now most important question is whether the driver has any valid licence or not? the burden of proving the fact that the driver was driving the vehicle without valid licence is on the insurance company as has been laid down by the apex court in large number of cases like narcinva v. kamat v. alfredo antonio doe martins, 1985 acj 397 (sc); kashiram yadav v. oriental fire and genl. ins. co. ltd., 1989 acj 1078 (sc) and sohan lal passi v. p. sesh reddy, 1996 acj 1044 (sc). in view of the aforesaid judgments it is clear that it is for the insurance company to plead and prove that the driver of the vehicle had no valid licence at the time of accident. in para 11 of written statement the insurance company has made plea to that effect. for proving the said plea insurance company has examined one satish bansal as witness no. 1 for n.a. 3. the said witness has not uttered a single word about the licence.7. as per the various judgments of the supreme court the insurance company has to prove the said fact from summoning the record of r.t.o. which has not been done in the present case. the suggestions given by the driver in the cross-examination are not sufficient to discharge the burden cast upon the insurance company. moreover, any admission made by the driver cannot bind the claimant. in the present case a question was asked to the driver satyadev sharma whether he had driving licence or not and he replied that he does not have any valid licence.8. this evidence is not sufficient to discharge the burden cast upon the insurance company in the light of the judgment of the apex court in the case of narcinva v. kamat, 1985 acj 397 (sc). in that case also a similar question was asked in the cross-examination and the supreme court has held that the answer in the cross-examination is not to discharge the burden placed upon the insurance company and held that insurance company has failed to establish the fact that the driver was driving the vehicle without any valid licence and ultimately award was passed against the insurance company.9. in view of the said judgment the insurance company in the present case has also failed to discharge the burden cast upon it to prove that the driver has no valid licence at the time of accident. thus, the insurance company is liable to pay amount of compensation awarded by the claims tribunal.10. in view of the aforesaid, this appeal is allowed. award passed by the court below is partly modified to the effect that insurance company is liable to pay the amount awarded by the claims tribunal.11. appeal thus partly succeeds and is allowed with no orders as to costs.