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2005 DIGILAW 454 (GAU)

Oil India Limited v. Neil Rose

2005-06-10

AMITAVA ROY

body2005
JUDGMENT Amitava Roy, J. 1. This appeal under Section 173 of the Motor Vehicle Act, 1988, (hereafter referred to as 'the Act') puts to challenge the award dated 15.10.2004 passed by the Motor Accident Claims Tribunal, Kamrup, (hereafter referred to as 'the Tribunal') in MAC case No. 809/1995 saddling the appellant with the liability of paying an amount of Rs. 2,00,000 as compensation for accidental death of Smt. Julima Rose involving a bus bearing registration No. AS01C 0342. 2. I have heard Mr. S.N. Sharma, learned senior counsel assisted by Mr. A.N. Choudhury, Advocate for the appellant and Mr. M. Bhuiyan, Advocate for the respondent No. 1/claimant. 3. First the introductory facts. A claim application was filed by the respondent No. I/claimant before the learned Tribunal claiming compensation to the tune of Rs. 20,00,000 for the death of his wife Smt. Julima Rose caused due to a vehicular accident involving the Mini Bus bearing No. AS-01C, 0342 owned by the respondent No. 2 but contracted by the appellant for its use. It was stated therein that on the date of the accident i.e. 15.6.1995 at about 8 AM, the deceased was traveling in the aforementioned bus from OIL Housing Colony to her office at Tata Tea Limited at Beltola. On the way the vehicle met with an accident due to the rash and negligent driving thereof and overturned. The deceased in the accident came under the bus and suffered serious injuries to which she ultimately succumbed on her way to the hospital. 4. Though Oriental Insurance Company Limited was initially impleaded as the insurer of the offending vehicle, its name was struck off as it transpired that at the relevant time the bus was not insured with it. The claim was resisted by the registered owner thereof, the respondent No. 2 herein pleading that the vehicle at the time of the accident had been taken on hire by the appellant on the basis of a agreement dated 11.5.1992 and, therefore, under the Act it was the owner thereof and thus was liable to pay the compensation, if any. The claim was resisted by the registered owner thereof, the respondent No. 2 herein pleading that the vehicle at the time of the accident had been taken on hire by the appellant on the basis of a agreement dated 11.5.1992 and, therefore, under the Act it was the owner thereof and thus was liable to pay the compensation, if any. The appellant's assertion in reply was that as admittedly the respondent No. 2 was the registered owner of the bus and there being a clause in the agreement whereunder the owner was liable to indemnify it against all claims arising out of the use thereof, the appellant could not be made liable to pay the compensation. 5. The learned Tribunal on a consideration of the pleadings of the parties and the evidence adduced in support of the respective cases by the impugned award held the appellant liable to pay the compensation, which it quantified to be Rs. 20,00,00 payable to the minor daughter of the deceased. 6. The appeal was filed on 8.2.2005, however, admittedly without the statutory deposit as required under Section 173 of the Act. On 23.2.2005 when the appeal came up for consideration of this Court, the above omission having been noticed this Court directed the appellant to deposit a sum of Rs. 25,000 with the Registrar General of this Court ordering that the appeal be listed thereafter. The office note dated 1.3.2005 indicates that the cheque bearing the aforementioned amount was deposited by the appellant in the office of this Court and was accepted on 3.3.2005. The cheque is dated 24.2.2005 and the office note 1.3.2005. The appeal thereafter was listed on 9.3.2005, 25.4.2005, 12.5.2005, 17.5.2005 and finally on 19.5.2005 when it was heard as an admission item. 7. The learned senior counsel for the appellant principally argued on two counts. Firstly that the respondent No. 2 being the registered owner of the bus involved, the appellant could not be held to be liable to meet the claim for compensation in the facts and circumstances of the case. 7. The learned senior counsel for the appellant principally argued on two counts. Firstly that the respondent No. 2 being the registered owner of the bus involved, the appellant could not be held to be liable to meet the claim for compensation in the facts and circumstances of the case. He contended that in the face of the agreement dated 11.5.1992 between the appellant and the respondent No. 2 whereunder the latter had undertaken to provide transport services to the former and also to indemnify the appellant for any claim arising out of the Act, the learned Tribunal had erred in law in holding it to be liable to pay the compensation. According to Mr. Sharma, the definition of "owner" as provided in Section 2(30) of the Act cannot be stretched in the attending facts of the case to bring within its purview the appellant. He sought to distinguish the decision of the Apex Court in Rajasthan State Transport Corporation v. Kailash Nath Kothari and Ors., AIR 1997 SC 3444 relied upon by the learned Tribunal in support of the determination about the appellants liability. The second limb of the argument on behalf of the appellant is that the learned Tribunal not having recorded any finding of rashness or negligence in the driving of the bus to be the proximate cause of the accident, the appellant in any view of the matter could not have been burdened with the liability to pay compensation. 8. In reply Mr. Bhuiyan at the outset raised a preliminary issue with regard to the maintainability of the appeal. According to him, though the appeal had been filed in time on 8.2.2005, it was not accompanied by the statutory deposit of Rs. 25.000, which was made after the expiry of the period of limitation. There being no prayer for condoning the delay therefor, the learned Counsel urged that the appeal is barred by limitation and the appeal is liable to be dismissed in limini. On merits, he argued that on a bare reading of the agreement between parties proved as Exhibit "A", it would be abundantly clear that at the time of the accident the appellant had exclusive and, all pervasive control on the bus and, therefore, was owner thereof within the meaning of Section 2(30) of the Act. On merits, he argued that on a bare reading of the agreement between parties proved as Exhibit "A", it would be abundantly clear that at the time of the accident the appellant had exclusive and, all pervasive control on the bus and, therefore, was owner thereof within the meaning of Section 2(30) of the Act. He further submitted that as the rashness and negligence in the driving of the vehicle resulting in the accident is evident on the face of the records, a mere omission on the part of the learned Tribunal in recording a categorical finding to that effect is inconsequential. It being explicit from the evidence of the witnesses that the bus, as a result of the accident, had turned turtle while taking a turn hitting a concrete beam, it was manifest that it was being driven rashly and negligently at the relevant time. According to him, the learned Tribunal rightly relied on the decision of the Apex Court in Rajasthan State Transport Corporation v. Kailash Nath Kothari and Ors. supra. In support of his plea appertaining to the maintainability of the appeal Mr. Bhuiyan placed reliance on two decisions of this Court in the New India Assurance Co. Limited v. Shri Birendra Mohan De and Ors. 1995 (2) GLT 218and Union of India v. Smt. Gita Banik 1996 (2) GLT 246. 9. In reply Mr. Sharma on the aspect of maintainability placed reliance on a decision of this Court in the New India Assurance Co. Limited v. Smt. Rita Devi 1997 (2) GLT 406. 10. As any determination on the question of maintainability of the appeal may have a decisive bearing on the outcome thereof, it would be expedient to examine this aspect of the lis at the threshold. The award having been passed on 15.10.2004, having regard to the period of limitation of 90 days in preferring the appeal, excluding the period for obtaining certified copy of thereof, the appeal was to be filed on or before 10.2.2005. Admittedly, it was filed in time on 8.2.2005 but without the deposit as mandated under Section 173 of the Act. This was noticed by this Court on 23.2.2005 and an order was passed directing the appellant to deposit the sum of Rs. 25,000 with the Registry of this Court. The office note shows that the same was done by a cheque dated 24.2.2005, which was accepted on 3.3.2005. This was noticed by this Court on 23.2.2005 and an order was passed directing the appellant to deposit the sum of Rs. 25,000 with the Registry of this Court. The office note shows that the same was done by a cheque dated 24.2.2005, which was accepted on 3.3.2005. Even accepting the date of the cheque to be the date of the deposit of the amount, it is clearly beyond the period of limitation expiring on 10.2.2005. Admittedly no application had been filed by the appellant praying for condoning the delay in making the deposit. 11. A similar plea in an appeal also under Section 173 of the Act was taken on behalf of the respondent in New India Assurance Co. Limited v. Shri Birendra Mohan De and Ors., supra. The amount of Rs. 25,000 in that case had been deposited after the expiry of the prescribed period of limitation. A Division Bench of this Court dismissed the appeal holding the view that an appeal under the above provision of the Act cannot be entertained unless and until the amount of statutory deposit is made within the prescribed period of limitation. 12. Assertions in the same lines were made on behalf of the respondents in Union of India v. Smt. Gita Banik, supra, wherein the decision in New India Assurance Co. Limited v. Shri Birendra Mohan De and Ors., supra, was pressed into service. It was contended on behalf of the appellant that the deposit' though belated was made in terms of the order of the court and, therefore, the question of any prayer for condonation of delay did not arise. This Court in the reported decision noticed that the award involved was assailable latest by 10.4.1994. The memorandum of appeal was presented on 7.3.1994 with no statutory deposit and on an oral prayer made on behalf of the appellant on 20.4.1994, the court allowed one months time to deposit the amount. Noticing that time was granted for making the deposit on 20.4.1994, though the appeal had to be submitted latest by 10.4.1994, this Court dismissed the appeal following the ratio of the decision in New India Assurance Co. Limited v. Shri Birendra Mohan De and Ors., supra, as no prayer for condonation of delay for the period preceding 19.4.1994 had been made. 13. Another Division Bench of this Court on the same issue in New India Assurance Co. Limited v. Shri Birendra Mohan De and Ors., supra, as no prayer for condonation of delay for the period preceding 19.4.1994 had been made. 13. Another Division Bench of this Court on the same issue in New India Assurance Co. Limited v. Md. Makubur Rahman and Ors. 1994 (1) TAC 366 held the following view. Having regard to the language used in first proviso to Section 173(1) of the Act, the ordinary meaning of the expression "entertain" contained therein must receive its ordinary meaning, namely, 'admit for considerations'. It must follow that deposit need not be made at the time of filing though it could be made at that stage. For the purpose of proviso, it is sufficient that deposit is made when appeal comes up for admission or consideration. If deposit is not made, it will be open to the court to reject the appeal, it is also open to the court to adjourn consideration of appeal to another date. As to which course is to be adopted in a given case depends upon the facts and circumstances of the case. 14. Noticing the conflict in the views of the two Division Benches of this Court as expressed in New India Assurance Co. Limited v. Shri Birendra Mohan De and Ors., supra, and the: New India Assurance Co. Limited v. Md. Makubur Rahman and Ors., supra, a Single Bench of this Court ordered the matter to be placed before the Hon'ble the Chief Justice for constitution of a Larger Bench. The issue was accordingly referred to another Division Bench of this Court which in New India Assurance Co. Limited v. Smt. Rita Devi and Ors., supra, preferred the view expressed in New India Assurance Co. Limited v. Md. Makubur Rahman and Ors., supra. 15. It is, thus, obvious from the above narration that two sets of incongruent views of two different Division Benches of this Court exist on the above legal issue. Whereas in terms of the decision rendered in New India Assurance Co. Limited v. Shri Birendra Mohan De and Ors., supra, as well as Union of India v. Smt. Gita Banik, supra, an appeal under Section 173 of the Act without the statutory deposit within the period of limitation prescribed is not maintainable, the ratio decidendi in New India Assurance Co. Limited v. Md. Limited v. Shri Birendra Mohan De and Ors., supra, as well as Union of India v. Smt. Gita Banik, supra, an appeal under Section 173 of the Act without the statutory deposit within the period of limitation prescribed is not maintainable, the ratio decidendi in New India Assurance Co. Limited v. Md. Makubur Rahman and Ors., supra, is that deposit thereof when the appeal comes up admission or consideration is sufficient and that the deposit need not be made essential at the time of filing of the appeal. It is submitted at the Bar that no other decision of this Court is available on the issue. 16. Section 173(1) of the Act deserves to be extracted in the above premises. 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. 17. A plain reading of the above provision of the Act manifests that the appeal envisaged thereunder has to be filed within 90 days from the date of the award. Under the first proviso, no such appeal would be entertained by the High Court unless the appellant has deposited 25,000 or 50% of the amount awarded which ever is less in the manner directed by the High Court. Under the second proviso, the High Court has been empowered to entertain such appeal after the expiry of the prescribed period if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. 18. Logically, therefore, in case of a time barred appeal, if an application if filed praying for condonation of delay, the High Court if satisfied that the delay was caused for reasons considered to be sufficient, may condone the same. 18. Logically, therefore, in case of a time barred appeal, if an application if filed praying for condonation of delay, the High Court if satisfied that the delay was caused for reasons considered to be sufficient, may condone the same. The question, which, however, needs to be answered, is whether an appeal filed in time but without the statutory deposit can be entertained if such deposit is eventually made beyond the period of limitation in absence of any application for condoning the delay therefor. What would be the effect of a permission, if any, granted by the High Court to make such deposit on the expiry of the limitation period. Would different consequences ensue if such an order, permitting deposit, is passed before or after such period. 19. In view of the two sets of decisions noticed herein above containing conflicting views on this legal issue of considerable moment, I am of the considered opinion that for the sake of uniformity and certainty in the decision thereon and to provide a quietus thereto it needs to be examined by a Full Bench of this Court under Chapter VII of the Gauhati High Court Rules. In the above view of the matter, the Registry would place the records of the appeal before the Hon'ble the Chief Justice for taking an appropriate decision in this regard. The question, which needs to be answered, may be paraphrased, thus. Whether an appeal under Section 173 of the Motor Vehicles Act, 1988, without the statutory deposit but otherwise filed in time, can be entertained if such deposit is eventually made beyond the period of limitation without the delay being condoned by the court ? The decision on the contentions on merits in the above premises being contingent on the determination of the above legal issue is, therefore, deferred. Registry to act accordingly.