Calcutta High Court (Appellete Side)
Aishwarya Sen vs New India Assurance Company Ltd on 7 December, 2023
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
R.V.W No. - 185 of 2023
With
CAN 1 of 2023
CAN 2 of 2023
In
FMA 197 of 2017
Aishwarya Sen.
Vs.
New India Assurance Company Ltd.
Mr. Tapas Dutta
Mr. Raja Sharma
.......... for the applicant
Mr. Parimal Kumar Pahari
.............. For the respondent/Insurance Co.
Mr. Rajesh Singh
......... For amicus curie
Dated : 07.12.2023
Ref:- CAN 2 of 2023
This is an application for clarification of the letter dated
04.09.2023 of Joint Registrar (General Administration II) High
Court Appellate Side Calcutta.
Learned advocate for the applicant/claimant submits
that by the order and judgment dated 12.05.2023 passed in
FMA 197 of 2017 and FMA 804 of 2017 the Insurance
Company is directed to pay compensation for an amount of Rs.
27, 66,475/- along with interest at the rate of 06% per annum
from the date of filing of the claim petition till the payment. The
claimant has paid ad valorem court fee on the claim amount of
Rs. 14, 90,000/- at the time of institution of the claim petition
before the Learned Tribunal. It is the case of the applicant that
the Joint Registrar (General Administration II) High Court
Appellate Side Calcutta by his letter dated 04.09.2023
intimated the Learned Advocate for the petitioner for taking
necessary action for payment deficit court fees upon the
enhanced compensation. The Joint Registrar further asking for
payment ad valorem Court Fees on the enhanced
compensation has withhold the draft of without any cogent
reason.
Accordingly, the instant application was filed for issuing
specific direction upon Registrar General to hand over the draft
without insisting the petitioners to deposit the ad valorem
Court Fees on the enhanced amount.
Learned Advocate appearing on behalf of the appellant
submits that the letter issued by the Joint Registrar claiming
the ad valorem court fees on enhanced amount is erroneous.
The claimant has paid the ad valorem court fees at the time of
filing of the claim application. The impugned judgment passed
by the Learned Tribunal has recorded that the court fee paid is
sufficient. This is not a money suit so ad valorem court fee
cannot be claimed upon the enhanced compensation according
to the provisions of West Bengal Court Fees Act. He further
pleaded according to the Rule 331(1) of West Bengal Motor
Vehicles Rule; an application for compensation has to be
accompanied by prescribed Court fees as mentioned in the
Rule itself. There are no provisions for payment of Court fees if
the compensation was enhanced later on in the stage of appeal.
The Motor Accident Claim Case is not equivalent to a suit so
the question of payment of ad valorem Court Fees is not
applicable. The payment of Court Fee in a proceeding before
the claim tribunal under the provisions of Motor Vehicles Act is
separate to the different states. Learned Advocate for petitioner
has prepared a compilation regarding the Rules for payment of
Court fees in different States before the claim tribunal. There is
no specific rule or order to show that the court fee can be
collected during the appellate stage. He further argued that as
there is no rule to that effect so the Joint Registrar cannot
claim deficit Court Fee on the enhanced amount.
Learned Advocate appearing on behalf of the respondent
Insurance Company submits that the provision of law is very
much clear the claimant is entitled to get the enhanced
compensation subject to payment of deficit court fees. He
prayed for rejection of the instant application.
Considering the merit of this matter Mr. Rajesh Singh
who usually appears before this court on behalf of the
Insurance Company is appointed as amicus curie in this
matter.
Mr. Singh argued that the Rule 331(1) of the West Bengal
Motor Vehicles Rule 1989 has mentioned about the Court Fees
on the amount of claim. Rule 331(2) held that the claim
tribunal may exempt already for payment the prescribed fees at
the time of filing of the claim application but the claimant has
to pay the prescribed fees before the copy of the judgment is
obtained. He argued that a claim application is not required to
mention the claim amount. The tribunal has to assess just and
proper compensation of a particular case and thereafter the
prescribed court fee can be asked to be filed before the copy of
judgment is obtained. He further argued in different states
there may have the rule of filing the application without any
court fees but in a state of West Bengal the specific rules
provides for payment of court fees. He again argued that the
claim tribunal has the scope to enhance the claim in
appropriate case so the claim tribunal has the authority to
receive the prescribed court fee on enhanced amount. In
support of his contention he cited different decisions of Hon'ble
Supreme Court.
In Jabbar Vs. Maharastra State Road Transport
Corporation 2020 (1) TAC 37, the Hon'ble Supreme Court has
enhanced the amount of compensation for the purpose just
and proper compensation of that particular case and as
directed to deposit the deficit court fees on enhanced amount.
In District Collector Vs. Smt. Lilabai and Ors. 2001
ACJ 1636. The Madras High Court directed the claimant to
pay the additional court fee on the amount of excess
compensation which was enhanced in the stage of appeal.
In National Insurance Company Limited Vs. Salma
Farheen the claimant was directed to pay the deficit court fees
on the enhanced amount.
In Nagappa Vs. Gurudayal Singh 2003 ACJ 12, the
Hon'ble Supreme Court has held that compensation shall not
be restricted on the claim amount as mentioned in the claim
application. In appropriate case the claim can be enhanced by
the claimant by an amendment application and High Court
shall not restricted in a provision u/s 156 of the MV Act to pay
the compensation on the restricted amount.
Finally, Mr. Singh submits that appeal is continuation of
the proceeding initiated before the Learned Tribunal; the
appellate court has the every authority to pass necessary
direction for payment of ad valorem court fees on the enhanced
amount.
Heard the Learned Advocates.
Perused the materials on record also perused the
decision passed by the Hon'ble Supreme Court and the High
Courts. The issue involved in the instant CAN application is
whether the claimant is required to pay the prescribed court
fees as mentioned in Rule 331(1) on the enhanced
compensation amount as awarded by the High Court.
In considering the fact laid the Rule 331(2) is set out
hereunder
(2) The Claims Tribunal may exempt a party from
the payment of fee prescribed under sub-rule (1) provided that
where a claim of the party has been accepted by the Claims
Tribunal, the party shall have to pay the prescribed fee,
exemption in respect of which has been granted initially before
a copy of judgment is obtained.
Rule 331(1) provides that an application for
compensation under the MV Act shall be filed along with the
prescribed fees on the amount of claim.
Rule 331 (2) has enacted by giving a power to the
tribunal to exempt the claimant at the time of filing of the claim
application for payment of prescribed court fees at the same
time the Rule 331 (2) has directed that the prescribed fees has
to be paid before the copy of judgment is obtained.
It is true that the tribunal can assess just and proper
compensation not only on the basis of the amount mentioned
claim application but of peculiar facts and circumstances of
this case. In Nagappa (supra) Hon'ble Supreme Court has
made it clear that the enhancement of a claim can be ordered
by the High Court or Supreme Court in a fit case.
Rule 331(2) empowered the claim tribunal to ask the
claimant to file deficit court fee before of a copy of judgment is
obtained.
The plaint reading of the 331(2) of the Rule makes
abundantly clear that the claim tribunal has the authority to
ask for the ad valorem court fees on quantified amount. The
effect of this rule also applies as well to the High Court at the
stage of appeal and also for the Apex Court.
Conjoint reading of Rule 331(2) and direction of Hon'ble
Apex Court in Nagappa empowers the High Court as well as
Supreme Court to enhance the claim of compensation as well
as to direct claimants to pay prescribed court fee on enhanced
amount.
In considering the technical side, the Joint Registrar
(General Administration II) High Court Appellate Side Calcutta
has issued the letter as per impugned judgment under review.
Filing an application seeking clarification of the letter of the
Joint Registrar appears to me touching the merit of the
judgment under review.
Accordingly I find no justification to entertain the
application being CAN 2 of 2023. Accordingly the CA N 2 of
2023 is dismissed.
Claimant is directed to furnish deficit court fees before
the office of the Learned Tribunal on the enhanced amount as
directed by the Learned Appellate Court vide judgment dated
12.05.2023. The office of the Learned Tribunal shall act upon,
on the basis of the certified copy of the judgment dated
12.05.2023.
Assistance of Mr. Singh to this court in disposing this
matter is highly appreciated.
Let the matter appeared in the list for the hearing of the
review application on December 19th, 2023
Parties to act upon the server copy and urgent certified
copy of the judgment be received from the concerned Dept. on
usual terms and conditions.
(Subhendu Samanta, J.)
