Loading...

Sr. Divisional Manager, New India … vs Rosalia Barla And Ors. on 20 March, 2008

Orissa High Court
Sr. Divisional Manager, New India … vs Rosalia Barla And Ors. on 20 March, 2008
Equivalent citations: AIR 2008 Ori 111, 2008 I OLR 809
Author: B Mahapatra
Bench: B Mahapatra

JUDGMENT

B.N. Mahapatra, J.

1. This case is listed today for orders on the basis of defect pointed out by the Stamp Reporter that no certified copy of the impugned award was filed along with the memorandum of appeal. Learned counsel for the appellant submits that the said defect may be ignored, as he has presented the memorandum of appeal along with the true copy of the award supplied by the learned Tribunal in terms of Sub-section (2) of Section 168 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act‘). He further submits that there can be no doubt about the genuineness of the true copy of the award which has been issued by the learned Tribunal, and in that view of the matter there is no need to file certified copy of the impugned award. Relying on Sub-Rule (2) of Rule 21 of Orissa Motor Vehicles (Accidents Claims Tribunal) Rules, 1960, he submits that the memorandum of appeal shall be accompanied by a copy of the award appealed against. He also relies on the provisions contained in Rule 1 of Order XLI, CPC and submits that only a copy of the award is necessary for presentation of an appeal. His further submission is that the MV Act, 1988, no where provides that the memorandum of appeal under Section 173 of MV Act shall be accompanied by a certified copy of the judgment/award appealed against. On the basis of aforesaid submission, he prays to ignore the defect pointed out by the Stamp Reporter.

2. The learned Counsel for the claimant-respondents submits that the appeal preferred by the appellant is not maintainable on the ground that the memorandum of appeal has not been accompanied by the certified copy of the impugned award and this amounts to improper presentation of appeal. According to him, the free copy issued by the learned Tribunal in terms of Sub-section (2) of Section 168 of MV Act is for the purpose of information and compliance by the person who is required to pay compensation amount in terms of award and not for using the same in filing the appeal. He further submits that in any event, if this Court holds that the memorandum of appeal filed along with the copy of the award issued by the learned Tribunal in terms of Sub-section (2) of Section 168 of the MV Act is maintainable, the present appeal being an old appeal relating to the year 2002 arising out of an accident occurred on 03.03.2000, the same may be disposed of in the spirit of Lok Adalat today. To such submission of the learned Counsel for the claimant-respondents, learned Counsel for the appellant-Insurance Company has no objection.

3. The preliminary question which requires consideration by this Court is whether for proper/valid presentation of an appeal under Section 173 of the M.V. Act against the award passed by the Motor Accidents Claims Tribunal (hereinafter referred to as “Tribunal’) the memorandum of appeal should be accompanied by certified copy of the impugned award and the memorandum of appeal filed accompanied by true copy of the judgment/award supplied by the learned Tribunal under Sub-section (2) of Section 168 of the MV Act will not amount to proper presentation of appeal before this Court.

4. For this purpose, it is necessary to examine the various legal provisions cited by learned Counsel appearing on behalf of the appellant. Those are Sub-Rule (2) of Rule 21 of Orissa Motor Vehicles (Accidents Claims Tribunal) Rules, 1960, Sub-section (2) of Section 168 of the Orissa Motor Vehicles Act, 1988 and Rule 1 of Order XLI of Code of Civil Procedure, 1908.

Rule 21 of Orissa Motor Vehicles (Accidents Claims Tribunal) Rules, 1960

21. Form of appeal-

(1) An appeal against the award of a Claims Tribunal shall be preferred in the form of a memorandum stating concisely the grounds on which the appeal is preferred.

(2) It shall be accompanied by a copy of the judgment and the award appealed against.

Sub-section (2) of Section 168 of the Orissa Motor Vehicles Act, 1988.

(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

Rule 1 of Order XLI of Code of Civil Procedure, 1908.

(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded….

It is also necessary to quote Section 173 of the Motor Vehicles Act which deals with the provisions relating appeal:

Section 173 of the Motor Vehicles Act

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 date of the award, prefer an appeal to the High Court:

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 percent of the amount so awarded, whichever 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.

(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.

5. Section 173 of the MV Act gives right to a person aggrieved by an award of the Claims Tribunal to file an appeal before the High Court against the said award within ninety days from the date of award. Provisions of Section 173 do not contain anything regarding filing of certified copy or true copy of the award appealed against along with memorandum of appeal.

However, Sub-Rule (2) of Rule 21 of the Orissa Motor Vehicles (Accident Claims Tribunal) Rules, 1960, provides that the memorandum of appeal filed against award of the Claims Tribunal shall be accompanied by a copy of the judgment and award appealed against. Sub-section (2) of Section 168 of the MV Act provides that the Claims Tribunal shall arrange to deliver the copies of the award to the parties concerned expeditiously and in any case within a period of 15 days from the date of the award. Rule 1 of Order XLI of CPC also contemplates that the memorandum of appeal shall be accompanied by a copy of the judgment.

6. A conjoint of these statutory provisions makes it amply clear that a memorandum of appeal shall be accompanied by a copy of the judgment and the award appealed against.

7. Further, the meaning of the expression ‘certified copy’ as it finds place in the Law Lexicon is “a copy of a document is a certified copy where there is in it a certificate of a Public Officer that it is true copy of a document contained in the Office”. According to the meaning of the expression ‘certified copy’ as per the Law Lexicon, the true copy of the award issued by the Tribunal in terms of Section 168 of the MV Act should be treated as certified copy of the said award/judgment.

8. In this context, a reference may be made to a decision of the Kerala High Court in the case of Thata v. Paru and Ors. . In that case, the question that was raised before the Kerala High Court was with regard to maintainability of an appeal wherein a carbon copy of the impugned order without a certificate in full compliance with Section 76 of the Evidence Act, 1892 was produced. The fact of that case in short was that in a suit for partition a preliminary decree was passed by the trial Court and the final\decree proceedings were still pending. The 1st defendant was appointed as receiver by the trial Court. Later, an application was filed by the plaintiff for removing the 1st defendant from receivership and to appoint another receiver from the panel of receivers. That application was dismissed by the trial Court against which the plaintiff preferred an appeal before the District Court. A carbon copy of the impugned order was produced with the memorandum of appeal. The defendants raised a preliminary objection in the District Court on the ground that the carbon copy was not a sufficient substitute for the copy of a decree and, at any rate it was not a certified copy and as such the appeal was liable to be dismissed in limine. The learned District Judge heard the preliminary objection and passed the impugned order holding that the carbon copy produced was sufficient to make the presentation of the appeal valid.

In the above context, the Kerala High Court held that a legal presumption is created by Section 79 as to the genuineness of every document “purporting to be a certified copy” which purports to be duly certified by any officer duly authorized thereto. Under the proviso to Section 79 it is enough that such document is substantially in form and purports to be executed in the manner provided by law in that behalf. Thus, the law has created a legal presumption in favour of the genuineness of a document when it is in substantial though not in strict compliance with the provisions for the certification of a copy as contained in Section 76. No particular form as such is prescribed in Section 76 and hence if the copy produced contains the necessary particulars by which its authenticity can be inferred, the same can be treated as a certified copy of the order of the Court. Therefore, where the trial Court by its order rejected the application of the party for changing the receiver appointed by the Court in the suit and the carbon copy of the order supplied to the party contained the necessary particulars indicating its authenticity as having been issued by the Court under its seal and its authority, the carbon copy can be treated as a certified copy of the order even though it does not contain the certificate that it was a true copy and the appeal filed along with the carbon copy of the order appealed against can be treated as validity presented.

9. In the present context, an idea about the relevant features of the copy issued by the Tribunal in terms of Sub-section (2) of Section 168 which accompanied the memorandum of appeal will be useful. Perusal of the copy issued by the Tribunal in terms of Sub-section (2) of Section 168 reveals that each page of the award bears common seal of the said Tribunal and signed as ‘true’. The last page of the award contains the memo No. and date. In view of the above, there is nothing to doubt about the genuineness of the copy of the award delivered to the parties by the Tribunal in terms of Sub-section (2) of Section 168 of the MV Act.

10. Now the question arises as to whether in spite of the copy of award issued by the learned Tribunal in terms of Sub-section (2) of Section 168 of the MV Act, a certified copy of the award is necessary for proper presentation of appeal before this Court against the award of the Tribunal.

Taking note of the various statutory provisions, meaning of the certified copy as per the Law Lexicon and the decision of the Kerala High Court in the case of Thata v. Paru and Ors. (supra), this Court is of the view that true copy of the award statutorily issued by the Tribunal in terms of Sub-section (2) of Section 168 is no way different from a certified copy of the same award. Therefore, if a memorandum of appeal is filed accompanied by the copy of the award issued by the Tribunal, same should be treated as valid and proper representation of the appeal. In other words, where the memorandum of appeal is filed accompanied by the copy of the award issued in terms of Sub-section (2) of Section 168 there is no need for insisting on the certified copy of the award appealed against. However, a certified copy of a judgment/decree/order may be necessary for filing an appeal against any judgment/decree/order passed where the statute requires the same. But where there is no specific provision in the Statute, the appeal can be entertained on the basis of true copy of the judgment/decree/order appealed against statutorily supplied to the parties concerned. In view of the above, the defect pointed out by the Stamp Reporter is ignored.

11. The further contention of the respondents is that the free copy of award issued by the learned Tribunal in terms of Sub-section (2) of Section 168 of the MV Act is for the purpose of information and compliance by the person who is required to pay the compensation amount in terms of award as provided under Sub-section (3) of Section 168 and not for using the same in filing the appeal. This contention is not acceptable for the simple reasons that Sub-section (3) of Section 168 of MV Act does not restrain any person aggrieved by an award of the learned Tribunal to prefer appeal under Section 173 of the MV Act before the High Court on the basis of the copy of award issued under Sub-section (2) of Section 168 and that Sub-section (2) of Section 168 also does not restrict supply of copy of the award only to the person who is required to pay the amount in terms of the award. On the other hand, the said provision provides for delivery of copies of award to the parties concerned which means to ail the parties concerned. Besides, in view of the findings of this Court in the preceding paragraphs, this contention of the respondent does not merit consideration and hence fails.

12. After ignoring the defect raised by the Stamp Reporter, now on the consent of parties, the appeal is taken up for final disposal.

13. This appeal under Section 173 of the MV Act, 1988, has been filed by the Insurance Company against an award dated 07.12.2001 passed by the 1st Motor Accidents Claims Tribunal Cuttack, in M.V. Misc. Case No. 238/2000.

14. The facts of the case, as stated by the claimants before the learned Tribunal are that on 03.03.2000 at about 6.30 A.M., while the deceased-Charles Barla was returning from Cuttack Malgodown side towards OMP Square on a bicycle in front of hotel ‘Dun Hill’, at OMP Square, a truck bearing registration No. PIL-9609 belonging to Project Manager, M/s. AFCON’S Pauling Co. (I) Ltd. coming from the opposite side dashed against the deceased as a result of which he died. It was further alleged that the accident took place on account of rash and negligent driving of the driver of the offending vehicle which was responsible for the death of the deceased. The deceased was working as Sepoy (Constable) attached to Orissa State Armed Police, 6th Bn., Cuttack with monthly salary of Rs. 6,000/- and he was 42 years old at the time of the accident. On these facts, the widow and sons of the deceased filed an application before the Tribunal claiming compensation of Rs. 7,00,000/- from the Insurance Company as well as the owner of the vehicle.

15. The owner of the vehicle (O.P. No. 1) admitted the case and filed written statement indicating therein that the accident took place on account of the rash and negligent driving of the driver and the offending vehicle having been validly insured with the Insurance Company-O.P No. 2, the Insurance Company was liable to pay compensation to the claimants, if payable.

16. The Insurance Company also filed its written statement stating that the claimants were not entitled to get any compensation as the alleged vehicle did not cause the accident in question. Further stand was that the claim of compensation of Rs. 7,00,000/- as made by the claimants was excessively high.

17. Three witnesses were examined on behalf of the claimants and eight documents, besides signature of U.C. Dash in Ext. 8, were exhibited. None was examined by opposite parties and no document was also produced by the opposite parties.

18. The Tribunal framed four following issues.

(1) Whether due to rash and negligent driving of the driver of the alleged vehicle, the accident took place and in that accident the deceased-Charis Barla succumbed to injuries ?

(2) Whether the claimants are entitled to get compensation, if so, what would be the extent?

(3) Whether the opposite parties or any of the opposite parties is/are liable to pay compensation?

(4) To what relief, if any, the claimants are entitled to?

19. After considering the oral as well as the documentary evidence and rival contentions of the parties, the learned Tribunal came to the conclusion that due to the rash and negligent driving of the driver of the offending vehicle, the accident was caused and in that accident the deceased died for which the claimants were entitled to get compensation. While determining the just compensation, learned Tribunal took into consideration the salary certificate (Ext. 8) of the deceased issued by his employer where his monthly salary was shown at Rs. 5,879/. After deducting 1/3rd from his salary towards his personal expenditure, the learned Tribunal determined his monthly contribution to the family at Rs. 3,909/- and thus the yearly construction was Rs. 47,028/-. The learned Tribunal applied 13 multiplier and determined the compensation at Rs. 6,11,364/-.

The learned Tribunal further came to the conclusion that since the offending vehicle was covered by valid insurance policy and the driver of the offending vehicle had valid driving licence on the date of accident, the Insurance Company was liable to pay the above compensation within two months from the date of the order, failing which interest @ 9% per annum would be charged from the date of default till payment of the compensation.

20. Learned counsel appearing on behalf of the Insurance Company basically challenged the order of the Tribunal on the ground that the amount of compensation determined by the learned Tribunal is on the higher side and that the learned Tribunal erred in law in taking into consideration the gross salary of the deceased while assessing the amount of compensation.

21. Per contra, the learned Counsel appearing on behalf of the claimant-respondents supports the. order of the Tribunal. Considering the facts and circumstances of the case and the contentions of the parties, I am of the view that a compensation of Rs. 5.50 lakhs (five lakhs fifty thousand) would be just and proper in the present case. With regard to the interest, the same is reduced to 6% per annum which shall be payable from the date of filing of Claim application before the learned Tribunal till the date of payment.

22. In view of the above, the Insurance Company is directed to pay a sum of Rs. 5.50 lakhs (five lakhs fifty thousand) to the claimant-respondents towards compensation along with interest at the rate of 6% from the date of filing of claim application till the date of deposit before the Tribunal. The entire compensation amount along with interest as indicated above shall be deposited by the Insurance Company before the Tribunal within six weeks from today. After the insurance Company deposits the compensation amount as fixed by this judgment with interest before the learned Tribunal, same shall be disbursed immediately by the learned Tribunal to the claimants-respondents on their making proper application and identification in the same manner it disbursed the compensation amount awarded by it in its Award.

23. The learned Counsel further submits that during the pendency of the appeal, a sum of Rs. 25,000/- was deposited before this Court towards statutory deposit and the same has been kept in a fixed deposit which may be refunded to the Insurance Company on payment of the compensation amount with interest as directed by this Court. Let the said amount along with interest accrued thereon be refunded to the appellant-Insurance Company on production of the receipt before the Registrar (Judicial) of this Court to the effect of depositing the compensation amount with interest before the learned Tribunal, as directed by this Court.

24. With the above direction, the appeal is allowed in part.

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information