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S.B. Civil Misc. Appeal No.5615/2008 DR(J)
Lila Ram. vs. Smt. Jhamka & Ors.
S.B. Civil Misc. Appeal No.5615/2008 DR(J)
Lila Ram. vs. Smt. Jhamka & Ors.
Date : 17.9.2008
HON'BLE MR. PRAKASH TATIA, J.
Mr.Anil Bhandari, for the appellant.
– – – – –
REPORTABLE
Heard learned counsel for the appellant.
Appellant, owner of the vehicle, has preferred
this appeal to challenge the award dated 28.7.2007 by
which the claim petition of the claimant was allowed
and the tribunal exonerated the appellant insurance
company from the liability but directed the insurance
company to first pay the award amount to the claimant
and allowed the insurance company to recover said
amount from the appellant, owner of the vehicle.
The appellant has not deposited the requisite
amount under Section 173 of the Motor Vehicles Act,
1988 (for short ‘the Act of 1988’) and, therefore, the
office has raised objection upon which learned counsel
for the appellant submitted that the initial liability
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S.B. Civil Misc. Appeal No.5615/2008 DR(J)
Lila Ram. vs. Smt. Jhamka & Ors.
to make payment of the award amount is open the
insurance company and the entire award amount has been
deposited or paid by the insurance company to the
claimants, therefore, the appellant is not required to
make any payment under the award and, therefore, the
condition to deposit under Section 173 of the Act of
1988 cannot be enforced against the appellant.
Therefore, the appellant can challenge the award by
preferring appeal without depositing the amount under
Section 173 of the Act of 1988.
Learned counsel for the appellant relied upon the
judgment of this Court in the case of Ghisi Bai (Smt.)
& Ors. Vs. Smt. Magan Kanwar & Ors. reported in 2006
R.A.R. 181 (Raj.) (by me) wherein it has been held that
once the insurance company has deposited the awarded
amount or paid to the claimants, then the appellant
cannot be asked to deposit any more amount, otherwise
it will amount to paying an amount exceeding liability
under the award.
I considered the submissions of learned counsel
for the appellant and perused the judgment delivered in
the case of Ghisi Bai (supra).
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S.B. Civil Misc. Appeal No.5615/2008 DR(J)
Lila Ram. vs. Smt. Jhamka & Ors.
Proviso to Sub-Section (1) of Section 173 of the
Act of 1988 reads as under :-
“Provided that no appeal by the person who is
required to pay any amount in terms of such award
shall be entertained by the High Court unless he
has deposited with it twenty-five thousand rupees
or fifty per cent of the amount so awarded,
whichever is less, in the manner directed by the
High Court.”
It is clear from the above proviso to Sub-Section
(1) of Section 173 of the Act of 1988 that any person
who is challenging the award of the Tribunal, is
required to pay twenty-five thousand rupees or fifty
per cent of the amount awarded by the Tribunal
whichever is less, for preferring the appeal before the
High Court. The language used in the above proviso is
“required to pay any amount in terms of such award”. In
case, where the insurance company has been directed to
pay the award amount to the claimants holding it liable
for the said amount and the amount is paid by the
insurance company to satisfy their liability under the
award, then no amount remained due which is required to
be paid in terms of the award either by the insurance
company or by the insured. Therefore, any one can
prefer appeal to challenge the award without making
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S.B. Civil Misc. Appeal No.5615/2008 DR(J)
Lila Ram. vs. Smt. Jhamka & Ors.
payment under Proviso to Sub-Section (1) of Section 173
of the Act of 1988 and in that situation, the private
party, owner of the vehicle or driver of the vehicle
can file the appeal without depositing the above
referred amount.
The situation is different when the Tribunal has
passed the award exonerating the insurance company but
directed the insurance company to first pay the award
amount to the claimants and then recover it from the
owner. In that situation, when the insurance company
paid or deposited the entire awarded amount, then the
insurance company’s right under the award to recover
the amount from the owner of the vehicle remains as it
is and that is the liability of the owner of the
vehicle under the award, may it be towards the
insurance company. In that situation, the private
party, owner of the vehicle is a person having
liability “required to pay the amount in terms of the
award”. Such owner – insured, therefore, is required to
comply with the condition of Proviso to Sub-Section (1)
of Section 173 of the Act of 1988.
In the case of Ghisi Bai (supra), this Court held
only that “where the award amount has already been paid
in pursuance of the award either by the appellant or
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S.B. Civil Misc. Appeal No.5615/2008 DR(J)
Lila Ram. vs. Smt. Jhamka & Ors.
insurance company, then he cannot be asked to deposit
any more amount because it will be directing the
appellant to pay the amount exceeding his liability
under the award.”. The said judgment is also clear and
it is only held that when there is no liability under
the award of anybody including the appellant, then he
need not to deposit the amount under Proviso to Sub-
Section (1) of Section 173 of the Act of 1988. The said
judgment in fact is also against the appellant.
In view of the above reasons, the contention
raised by the appellant is rejected.
However, the appellant is permitted to cure the
defect by making payment of requisite amount within a
period of eight weeks from today.
Defect No.3 regarding mentioning of age is
dispensed with.
Issue notice of the application under Section 5 of
the Limitation Act returnable in eight weeks.
(PRAKASH TATIA), J.
S.Phophaliya