Research › Search › Judgment

J&K High Court · body

2016 DIGILAW 630 (JK)

Viniak Sharma v. United Insurance Co.

2016-12-06

R.SUDHAKAR

body2016
JUDGMENT : R. Sudhakar, J. 1. This appeal is of the year 2008. The owner of the vehicle has filed this appeal without making mandatory deposit as required under Section 173(1) of the Motor Vehicles Act, 1988. He is aggrieved by the order of the Tribunal directing the Insurance Company to pay the claimants and right of recovery from the owner of the vehicle-the proposed appellant herein. 2. The case was admitted on 10.11.2008 and then adjourned from time to time. The appellant's counsel was put to notice as to the maintainability of the appeal by order dated 06.10.2016 which reads as follows: "Mr. M.K. Raina, counsel appearing for the appellant seeks and is granted two weeks' time to produce the judgments as to how the appeal is maintainable when he has not made the requisite deposits in term of Section 173 of the M.V. Act as on today. List after two weeks." 3. Counsel for the respondents while objecting the appeal placed reliance on two judgments, one by the Division Bench of this Court in case titled United India Insurance Co. Ltd. v. Mohd. Maqbool Reshi, 1999 KLJ 756 : JKJ Soft JKJ/11715 and on case titled Pareeth & Ors. v. Janaiya & Ors., reported in 2015 ACJ 295 decided in full Bench of the Kerala High Court in which it has been opined that when direction is given to the Insurance Company to recover the amount from the owner, the owner will come within the meaning of the term 'person who is required to pay any amount in terms of the award' contained in the proviso to Section 173(1). Paragraphs Nos. 35 and 36 of which reads as follows: "35. The decision of a Full Bench of this Court in Ittoop v. Mathunni, 1983 KLT 1097 , was relied upon to invite our attention to the relevant principles concerning interpretation of a provision in a fiscal statute. In our view, the proviso to Section 173(1) being clear, there is no scope for two different interpretations. 36. In fact, the legislature, while enacting the said proviso to Section 173(1) of the Act, did not classify or specify any particular type of appeal or appeals to which the proviso does not apply. In our view, the proviso to Section 173(1) being clear, there is no scope for two different interpretations. 36. In fact, the legislature, while enacting the said proviso to Section 173(1) of the Act, did not classify or specify any particular type of appeal or appeals to which the proviso does not apply. If we accept the arguments of the learned counsel for the appellants, then this court will be attempting something new to be introduced in the proviso which undoubtedly is the power of Parliament. When the statute does not provide for any exemption; does not give any power to the court to dispense with the deposit; and also does not indicate any other guidelines or circumstances which should have relevance in considering the plea of non-deposit, this court will not be entitled to classify the appeals like the one filed herein and hold that in such appeals the pre-deposit need not be made. The provision being mandatory, an interpretation which is in tune with the intent and purport of the legislation alone can be adopted. Only when the provision is ambiguous any other mode of interpretation can be adopted. What is important as far as an aggrieved party is concerned, is as to whether he is liable to pay any amount as per the award. The words 'required to pay' contained in the first proviso will have to be understood in that context. The appellant should be one who is found liable to compensate the victim as per the award and thus answerable for the amount of compensation awarded. When the insurance company makes payment, the owner is not totally absolved from liability, as evident from awards in these cases wherein the insurance companies are allowed to recover the amount from the owner or driver, as the case may be. There can be cases where the entire liability will have to be met by the insurance company without any direction to recover it form the owner or driver. Therefore, it is for the insurance company, if aggrieved, to file appeal after complying with the proviso. There can be cases where the entire liability will have to be met by the insurance company without any direction to recover it form the owner or driver. Therefore, it is for the insurance company, if aggrieved, to file appeal after complying with the proviso. As rightly pointed out by learned counsel for the insurance company, when there is a direction given in the award to recover the amount form the owner, he is also required to pay the amount in tune with the liability already cast upon him by the award and there is no exoneration of the said appellant form the liability, which is the view taken by the Division Bench in E. Sridharan's case 2012 ACJ 498 (Kerala). We fully agree with the above view." 4. In terms of the decisions referred hereinabove, the appeal is dismissed for non-compliance of the requisite deposits under Section 176(1) of the M.V. Act. The proposed appellant despite having sufficient opportunity was not able to convince the Court on the maintainability of the appeal. Accordingly, the appeal stands dismissed.