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2003 DIGILAW 187 (KER)

V. K. Kesavan Nambeesan v. K. K. Madhavan

2003-03-07

K.A.ABDUL GAFOOR

body2003
Judgment :- This appeal is by the owner of a motor vehicle involved in an accident. The owner is made liable for the entire amount of Rs.38,150/-, less Rs.15,000/- which was found to be the limited liability of insurer. 2. It is contended that in terms of Section 147 (2) of the Motor Vehicles Act, 1988, there cannot have any limitation of liability, so far as the insurer is concerned, in respect of payment of compensation to an injured passenger. Of course, this contention sounds good to be considered in an appeal under Section 173 of the Act. 3. It is contended by the respondent that this appeal itself is not maintainable as the appellant has not complied with the required condition as mentioned in the proviso to Section 173(1). The proviso reads as follows: 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". Therefore, in order to maintain an appeal, the appellant, who is required to pay compensation, has to make a deposit Rs.25,000/- or 50% of the amount awarded, whichever is less. No such deposit has been made by the appellant. The counsel also could not point out that any such deposit has been made. Counsel for the appellant contends that when notice has been ordered in the appeal, it has to be understood that the appeal has been admitted and hence, the appeal has to be heard on its merit. It is further contended that while admitting the appeal, an order of stay also has been ordered by this court staying the operation of the award and staying the recovery of the amount. Therefore, the appellant does not have any liability to deposit the amount in terms of the said proviso. 4. What has been stayed by this court is only the execution of the award. The deposit in terms of the proviso does not come within the execution of the award. A stay order is only in an appeal. The appeal shall be a competent one. Section 173 does not give any power to the court to dispense with the deposit mentioned in Section 173(1) of the Act. The deposit in terms of the proviso does not come within the execution of the award. A stay order is only in an appeal. The appeal shall be a competent one. Section 173 does not give any power to the court to dispense with the deposit mentioned in Section 173(1) of the Act. That is a mandatory requirement to entertain an appeal. Merely because the appeal has been admitted, it cannot be taken that this court had entertained that appeal and it shall be allowed. When an infirmity in the appeal is pointed out, necessarily, this court can reject that appeal. Accordingly, this is not an appeal duly filed under Section 173(1) of the Motor Vehicles Act, because of the absence of deposit in terms of that Section.