ORDER
1. The appeal has been preferred against the award of compensation of Rs.1,00,000 against the claim of Rs.2,50,000 for a death caused in a motor accident. The main contention urged in the appeal is with reference to the maintainability of the appeal.
2. According to the learned counsel for the respondents Thiru. K. Selvaraj, the award was passed on 19.11.1996 and the due date for filing of the appeal was 8.4.1997. But the appeal was filed on 21.4.1997. However, the. amounts required under section 173(1) of the Motor Vehicles Act was not
deposited. The receipt of deposit was filed only on 24.6.1997. Thereafter, on 16.7.1997 only the certificate was produced. Hence, the learned counsel for the respondents contends that since the deposit has not been made within the period of limitation, the appeal is not maintainable. He cited the following decisions in support of his contention.
1. New India Assurance Co. Ltd. v. Birendra Mohan De & Others. 1996 (1)
TAC 771 (2) State of Tamil Nadu v. E.P. Marakkadai, , 1 and (3) The managing Director, Tiruvallur
Transport Corporation, Madras-2 v. S. Vijayakumar, Unreported order
in CMP. 138 of 1998 in CMA. SR. No.59178 of 1996 Dt.6.2.1998 by
Justice S. Jagadeesan.
3. In New India Assurance Co. Ltd. v. Birendra Mohan De and others, 1996 (1) T.A.C, 771 Gauhati a Division Bench of Gauhati High Court has held that on perusal of the provision of Section 173 of the Motor Vehicles Act an appeal cannot be entertained unless and until the amount of Rs.25,000 is deposited within the prescribed period of limitation.
4. In State of Tamil Nadu v. E.P. Marakkadai, , a Full Bench of our High Court has held that as there was no
payment of the admitted tax within the period allowed for filing the appeal or within the extended period as specified in the Act for condonation of delay in
preferring the appeal, no appeal could be said to have been filed. It was only when the payment of admitted tax was paid, the appeal could be said to have been filed. The said cases arose out of an appeal under the Sales Tax Act. Three Judges of this Court considered the scope of Section 31 of the Tamil Nadu General Sales Tax Act, 1959 Act 1 of 1959. The said Section reads as follows:
“Sub-Section (1) of Section 31 of the Act is as follows:
31. Appeal to the appellate Assistant Commissioner —(1) Any person objecting to an order passed by the appropriate authority under Section 4-A, Section 12, Section 12-A, Section 14, Section 15, Sub-Sections (1) and (2) of Section 16, Section 18, Sub-Section (2) of Section 22, Section 23 or Section 27 other than an order passed by an Assistant Commissioner (Assessment) may, within a period of thirty days from the date on which the Order was served on him in the manner prescribed, appeal against such order to the Appellate Assistant Commissioner having jurisdiction.
Provided that the Appellate Assistant Commissioner may, within a further period of thirty days admit an appeal presented after the expiration of the first mentioned period of thirty days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the first mentioned period.
Provided further that in the case of an order under Section 12, Section 12-A, Section 14, Section 15 or Sub-Sections (1) and (2) of Section 16, no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have been payable as the case may be.”
5. In an unreported judgment of justice S. Jagadeesan, in The managing Director, Tiruvalluvar Transport Corporation, Madras-2 v. S.Vijayakumar, CMP. 138 of 1998 in CMA. SR. No.59178 of 1996 date 6.2.1998 has held as follows.
“The petitioner has stated that the deposit has been made on 4.10.1996. The appeal has been filed on 27.8.1996 that is before over the deposit was made. As per the provisions of the Act, for entertaining the appeal, it is condition precedent that the deposit ought to have been made and the Deposit receipt should accompany the memorandum of grounds, whereas the deposit has been made after filing the appeal, this Court has held in several cases that the presentation of the appeal is not proper and the delay cannot be construed as one of representation, but the delay in filing the appeal. In this case the delay is !41 days. The reason given by the petitioner is that the lower Court counsel has misplaced the deposit receipt. In the absence of any supporting affidavit from the lower Court counsel, the explanation given by the petitioner for such an inordinate delay cannot be accepted. Hence the petition is dismissed.”
6. The learned counsel for the respondents relied upon a circular issued by the Additional Registrar (Administration) in R.O.C.No.3842-A/90 F1 dated 6.3.1991, which also insist upon the filing of the receipt obtained from the Tribunal for deposit along with the memorandum of appeal.
7. The learned counsel for the appellant cited the following decisions:
1. Hindustan Commercial Bank Ltd, v. Punnu Sahu, ; and 2. Martin & Harris Ltd. v. VIth Additional Dist. Judge, .
8. In Hindustan Commercial Bank Ltd. v. Punnu Sahu, , the Supreme Court considered the proviso to Order 21, Rule 90 of Civil Procedure Code. In the said case, the Apex Court has Court has categorically stated that the decision reported in Lakshmiratan Engineering Works Ltd. v. Asst. Commissioner Sales Tax, Kanpur, was blinding on them. The contention of the counsel for the appellant that the expression “entertain” found in the proviso refers to the initiation of the proceedings and not to the stage when the Court takes up the application for consideration, was rejected. This contention was rejected by the High Court also following the decisions reported in Kundan Lal v. Jagan Nath Sharma, ; Dhoom Chand Jain v. Chamanlal Gupta, : Haji Rahim Bux & Sons v. Firm Samiullah & Sons. and in Mahavir Singh v. Gauri Shankar, . According to these decisions “entertain” meant “adjudicate upon” or “proceed to consider on merits”.
9. In Martin & Harris Ltd. v. VIth Additional Disk Judge, , also the Apex Court has reiterated the position mentioned above. In paragraph 10, there is a reference to the decisions reported in Lakshmiratan Engineering Works Ltd. v. Asst. Commr Judicial I, Sales Tax, and Hindusthan Commercial Bank Ltd. v. Punnu Sahu, and held as follows:
“The aforesaid decisions, in our view, clearly show that when the question of entertaining an application for giving relief to a party arises and when such application is based on any grounds on which such application has to be considered, the provision regarding “entertaining such application” on any of these grounds would necessarily mean the consideration of the application on the merits of the grounds on which it is based.”
In the said case, the Apex Court has considered the maintainability of the application for possession moved by the landlord against the tenant under Section 21(1)(a) of U.P. Urban Building Regulation of Letting, Rent and Eviction Act, 1972 (13 of 1972). In the said Section also there is a proviso. The proviso is quoted below:
“.. .. no application shall be entertained on the grounds mentioned in clause (a) unless a period of three years has elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years.”
In the said case, the application was filed on 24.1.1986 under Section 21(l)(a) of the Act. In the written statement a contention was raised that the application was not maintainable under Section 21 of the Act on the ground that it was filed pre-maturely before the expiry of three years from the date on which the premises was purchased. The purchase was on 30.6.1985 and the application was filed on 24.1.1986. The prescribed authority allowed the petition and the District Court dismissed the appeal. In the High Court under Article 226 of the Constitution of India, the maintainability was argued for the first time and it was held that the suit was maintainable. Before the Supreme Court, it was contended that when the prescribed authority took up the said ground for consideration on merits after 1988 three years period had already expired from the date of purchase of the suit property by the respondent-landlord. By taking up the main issue as point No. 1, the Apex Court answered the first point in the negative in favour of the landlord and against the tenant. Apex Court considered the contention of the counsel for the respondent that ‘instituted’ meant institution of such proceedings or taking cognisance of such application by issuing summons etc. The contention was not accepted.
10. In M/s.Lakshmiratan Engineering Works Ltd. v. Asst. Commissioner Judicial I. Sales Tax, Apex court considered the section 9 of the U.P. Sales Tax Act, 1948. In paragraph 11 the Apex Court has stated as follows:
“Under Section 9 and its proviso as they stand, it is quite obvious that ‘entertainment’ meant the point of time when the appeal is being considered.”
Again in paragraph 13, Their Lordships clarified the decision in the following words:
“If one holds that by ‘entertainment’ is meant the time of admission of the appeal, satisfactory proof may be furnished at the time of admission of the appeal. We are of opinion that by the word “entertain” here is meant the first
occasion on which the Court takes up the matter for consideration. It may be at the admission stage or if by the rules of that Tribunal the appeals are automatically admitted, it will be the time of hearing of the appeal. But on the first occasion when the Court takes up the matter for consideration, satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal. In the present case when the Assistant Commissioner took up the appeal for consideration, satisfactory proof was available in the shape of a certificate which even today is not denied. In our opinion the Assistant Commissioner was wrong in declining to Consider the appeal in the presence of such uncontestable proof.”
It is worthwhile to note in the aforesaid case, the facts show that the tax was paid in time, but the appellant did not however produce any proof for such deposit.
11. In State of Tamil Nadu v. E.P. Nawab Marakkadai, , after considering the judgment of the Apex in M/s.Lakshmiratan Engineering Works Ltd. v. Asst. Commissioner Judicial I. Sales Tax, , our Full Bench, concluded as follows:
“We also make it clear that the words “no appeal shall be entertained under this sub-section unless it is accompanied by satisfactory proof of the payment of the tax admitted by the appellant to be due or of such instalments thereof as might have become payable, as the case may be”, as already stated by us in para 14 supra are interpreted to mean that the payment of the admitted tax should be made within the time or the extended time prescribed, for filing an appeal even though the satisfactory proof may be produced later before the appeal is taken up for the first time for consideration. Consequently, it follows that if the payment of admitted tax is made beyond the period of 30 days prescribed for the filing of an appeal and beyond the further period of 15 days in respect of which alone the appellate authority has power to condone the delay, then the appellate authority has to necessarily reject the appeal as barred by limitation.”
12. The High Court of Gauhati in New India Assurance Co. Ltd. v. Birendra Mohan De & Ors. 1996 (1) TAC, 771 has simply referred to Section 173 and held that appeal could not be entertained unless and until the amount of Rs.50,000 is deposited within the prescribed period of limitation.
13. Learned Brother Justice S. Jagadeesan has also held in The Managing Director, Tiruvallur Transport Corporation, Madras-2 v. Vijayakumar, C.M.P.No. 138 of 1998 in C.M.A.SR.No.59178 of 1996 Order dated 6.2.1998 that it is a condition precedent that the deposit ought to have been made and the deposit receipt should accompany the memorandum of grounds. But the learned Judge was concerned with the condonation of the delay of 441 days in representation, and he was not concerned whether the amount was deposited in time or not. But even then, the facts state that the appeal was filed on 27.8.1996 and the deposit was made on 4.10.1996. The amount was not deposit. I before the presentation of appeal, In this case, we are concerned with the question as to whether the appeal can be entertained
even if the deposit is not made within the time. As we have seen above in M/s.Lakskmiratan Engineering Works Ltd. v. Asst. Commissioner Judicial I. Sales Tax, , the Apex Court was not directly concerned with the case whether the deposit was made after the period of limitation for filing the appeal, but it was a case where the deposit was made within the time but receipt was produced later. In that case, the Apex Court has held that if the receipt was produced before the appeal was taken up for consideration on merits at the admission stage, the appeal was maintainable. The Full Bench of our High Court referred to above has categorically held that if the deposit is not made within the period of limitation, the appeal cannot be said to have been preferred at all, because the appeal has to accompany by the receipt, the receipt is one of the document, forming part of the appeal papers.
14. Section 173 of the Motor Vehicles Act, 1988, is as follows:
“Section 173. Appeals–(1) Subject to the provisions of Sub-Section (2) any person aggrieved by an award of a Claims Tribunal may, within ninety days from the dale of the award, prefer an appeal to the High Courts 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, which ever is less, in the manner directed by the High Court.
Provided further that the High Court may entertain the appeal after the
expiry of the said period of ninety days, if it is satisfied that the appellant was
prevented by sufficient cause from preferring the appeal in time.”
A reading of the aforesaid Section, including the proviso shows that the appeal has to be filed within ninety days. The appeal would be admitted even after 30 days if sufficient cause for not preferring the appeal in time is shown. The words used in the proviso is to be noticed carefully. According to the proviso, no appeal shall be entertained unless the appellant has deposited with the Tribunal Rs.25.000 or 50% of the award amount. The deposits should be in the manner directed by the High Court. So, the precise meaning of the Section and the proviso is that an appeal shall be preferred to the High Court by the person aggrieved. But the appeal shall not be entertained unless he deposits with the Tribunal Rs.25,000 or 50% of the amounts awarded. The deposits has to be made in the manner directed by the High Court. There is no compulsion that the amount should be deposited before the appeal is filed and the deposit receipt should be enclosed with the memorandum of appeal. There is scope for moving the High Court after filing the appeal for obtaining direction regarding the deposit. However, before the appeal is ‘entertained’ i.e., taken up for consideration by the High Court, the deposit have been made as directed by the High Court. The High Court can direct the manner of deposit of the aforesaid amounts. In some cases, it is also possible to obtain direction from the High Court to make the deposit in instalments. But deposit is mandatory before the appeal is entertained hence certainly it is not before or at the time of the filing of the appeal i.e., presentation of the memorandum of appeal. We have seen that in the Apex Court judgment reported in Hindustan
Commercial Bank Ltd. v. Punnu Sahu, that “entertain” means ‘adjudicate upon’ or ‘proceed to consider on merits. In M/s. Lakshmiratan Engineering Works Ltd., v. Asst. Commissioner Judicial I Sales Tax. Kanpur Range, Kanpur, . it has been held that ‘entertainment’ of the appeal’ means that the appeal such as was filed would not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax.
15. In Rajasthan State Road Transport Corpn. v. Santosh, 1995 ACJ, 721 a single Judge of the Rajasthan High Court has interpreted the Section 173 of the Motor Vehicles Act, 1988 in the aforesaid manner. In the said case, without making the deposit, the appeal was preferred in the Rajasthan High Court. The Registry numbered the same and posted for admission and stay. At that stage, a learned Single Judge found that the Registry has numbered the appeal and the stay petition in utter ignorance of the provisions of Section 173 of the Act. The learned Judge directed the appellant to deposit in the Tribunal an account payee demand draft of Rs.25,000 in the name of the claimant. He has also issued directions for payment out also. After the deposit was made, then the learned Judge directed the registry to give the number in the said case.
It has issued guidelines for making the deposit whenever an appeal was is presented before the office of the Court. One of the guidelines states as follows:
(b) Henceforth, whenever appeal under Section 173 of the Motor Vehicles Act. 1988, is presented before the office of this Court under the aforesaid. Section then instead of listing such appeals for admission and disposals of stay application, such appeals be posted for orders before the appropriate Bench having jurisdiction to entertain such appeals for directions about the manner of deposit of Rs.25,000 or 50% of the amount to awarded against the appellant, whichever is less.”
The guideline supports my view mentioned above.
16. When we come back to the case reported in State of Tamil Nadu v. E. P. Nawab Marakkadai, , the facts of the case are not applicable to the case on hand as I have already indicated. The said case deals with the proviso to Section 31(1) of the Tamil Nadu General Sales Tax Act 1 of 1959. There, the words used in the proviso are ‘no appeal shall be entertained under this sub-section, unless it is accompanied by satisfactory proof of payment of tax admitted by the appellant”. The appeal Memorandum has to be accompanied by proof for payment. But in the proviso to Section 173 of the Motor Vehicles Act, 1988, there is no such mandatory provisions for accompanying the satisfactory proof of payment of amount. Further, in the aforesaid Full Bench case, the time limit of preferring the appeal is 30 days and the discretion given to the Court for condonation of the delay is limited to 15 days. That is why the learned Judges have observed as follows:
“…..it follows that if the payment of admitted tax is made beyond the period of 30 days prescribed for the filing of an appeal and beyond the further period of 15 days in receipt of which alone the appellate authority has power to condone the delay, then the appellate authority has to necessarily reject the appeal as barred by limitation.”
But under Section 173 of the Motor Vehicles Act, 1988, the appeal can be filed within 90 days, further if there is delay to any length of time it can be condoned if sufficient cause is shown.
17. New India Assurance Co. Ltd. v. Birendra Mohan De. and Ors, 1996(1) TAC, 771 -Gauhati), though it is a Bench decision, the learned Judge quoted the Section 173 of the Motor Vehicles Act in the judgment. But simply state that on a perusal of Section 173 of the Motor Vehicles Act, they were of the view that such an appeal could not be entertained unless and until the amount of Rs.25.000 has deposited within the prescribed period of limitation. If we give the meaning of the Apex Court to the word ‘Entertainment’ , even this decision is not against my view.
18. I have already mentioned that the judgment of the learned Brother S. Jagadeesan J. is only with reference to the condonation of delay. Therefore, the said decision cannot be taken as a decision on the issue on hand.
19. The learned counsel for the respondents referred to the following circular R.O.C.No.3842-A/90 F1, dated 6.3.1991. By rescinding the earlier circular P.Dis.No.5 of 1991 dated 22.1.1991, the following instructions were issued with regard to the manner of deposit of the amount under Section 173 of the Motor Vehicles Act, 1988.
“The manner in which the deposit is required to be made, shall by depositing the amount as per Section 173 of the Motor Vehicles Act, 1988, with the Tribunal to the credit of the Claim petition in which the appeal against the award has been preferred in the High Court and the receipt obtained therefor from the Tribunal shall be filed along with the Memorandum of Appeal presented to the High Court. This procedure shall be strictly followed on and from 11.3.1991”.
This is a general instruction. In my view, this circular cannot be construed to be in strict conformity with the provisions contained in Section 173 of the Motor Vehicles Act, 1988. The words “manner directed by the High Court” contained in the proviso to the said section cannot be said to be empowering the High Court to issue general direction. It may refer to even a single case. As I have indicated earlier, with reference to the deposit, a person who is not in a position to deposit the entire amount mentioned in that Section can move the Court for a manner of deposit. It may be for instalments or at a particular point of time. However, the deposit must be before the appeal is entertained or it is taken up for admission. From another angle also, the circular cannot be said to be in conformity with the proviso, because, the manner refers to only the deposit of the amount and not to the filing of the appeal. The circular state that the receipt shall be filed along with the memorandum of appeal presented. As I have mentioned above, an appeal can be presented with a petition for
condonation of delay. If the delay is not condoned, there will be no necessity for depositing the amounts. If the delay is condoned, the petitioner can move the Court for a suitable direction for deposit of the amount before the appeal is taken up for admission.
20. We must note that the words used is ‘directed by High Court’ and not the words ‘prescribed by the High Court’. In normal parlance. ‘direction’ relates to individual case, while ‘prescription’ refers to general or common method of filing of cases.
21. In the light of the aforesaid view, we have to consider the case on hand. In this case, appeal was filed with a delay of 13 days. At that stage itself the learned counsel for the respondents raised a contention that the appeal was not maintainable since the deposit receipt was not enclosed. A counter was filed in the petition for condonation of delay. It was stated in the counter that the appeal was presented on 21.4.1997 and the amount was deposited only on 5.6.1997. Since the deposit was made after the period of limitation for preferring the appeal, the appeal should not be entertained. But I have passed an order in the petition to condone the delay viz., C.M.P.No.18207 of 1997, allowing the petition and giving liberty to the respondents counsel to raise the point of maintainability of the appeal at the time of admission. Hence, after the appeal was numbered, counsel on both sides advance their argument as regards the maintainability of the appeal. As I have taken the view that the receipt need not accompany the memorandum of appeal and if the deposit is made before the appeal is entertained, in the sense that it is taken up for admission, the appeal cannot be rejected for want of deposit before it reaches that stage. The appeal came up for admission before this Court only on 8.7.1998. By that time, the deposit was made and the receipt was also produced i.e., on 16.7.1997. Therefore, on a consideration of all the relevant facts and circumstances of the case, the appeal is maintainable.
22. Now, considering the merits of the case, I find that there is no substance in the same. The contention of the learned counsel for the appellant is that the licence issued to the driver was to drive light motor vehicle only and there was no endorsement in the licence permitting him to drive tempo van. The vehicle involved in the accident is NTN 2913, which is said to be a mine lorry. According to the Tribunal, no action was taken by the Insurance Company for summoning the driver of the vehicle and producing the licence. Therefore, the Tribunal rejected the contention that the second respondent had no licence to drive the tempo van. It has also taken note that the number of the tempo and the endorsement number was found in EX.D.6 and yet no steps were taken to summon an officer from the Regional Transport Officer to state whether licence given to the driver contained an endorsement or not. On merits of the case, the abovesaid contention alone was raised and I am not agreeing with the said contention. Though the appeal is maintainable, it is dismissed on merits. However, mere will be no order as to costs. consequently, C.M.P.No.8883 of 1998 is disposed of as unnecessary.