Oriental Fire And General ... vs Smt. Kiran Wati And Others
1980 Latest Caselaw 332 Del

JUDGMENT

Sultan Singh, J.

1. This is appellant's application under s. 151 of the Code of Civil Procedure (hereinafter called "the Code") for stay of the award dated 15th February, 1980, made by the Motor Accidents Claims Tribunal, Delhi, on an application for compensation under s. 110A of the Motor Vehicles Act, 1939 (hereinafter called "the Act"). The Tribunal awarded a sum of Rs. 80,000 to respondents Nos. 1 to 5 against the appellant and respondents Nos. 6 and 7 as compensation for the death of one Ram Raj Singh who died due to injury received in a road accident. The appellant filed the appeal which was admitted on 16th April, 1980. The appellant also made this application (C.M. No. 1025 of 1980) for stay of operation of the impugned award in excess of Rs. 50,000 as the appellant's contention is that in any case it is liable to pay a maximum sum of Rs. 50,000 to the claimants under s. 95 of the Act. It appears that the appellant as per order dated 16th April, 1980, deposited Rs. 50,000 with the Tribunal. The question for decision now is whether the recovery for the remaining amount under the award against the appellant-insurance company should be stayed, It is contended on behalf of respondents Nos. 1 to 5 that there is no merit in the appeal, insurance company should be directed to pay the entire amount awarded by the Tribunal, that in any case it is a money claim which has been awarded by the Tribunal to respondents Nos. 1 to 5 and as such the execution of the amount under the award be not stayed unless the appellant complies with r. 1(3) and r. 5(5) of O. 41 of the Code. These rules are as under :

"R. 1. (3) Whether the appeal is against a decree for payment of money, the appellant shall, within such time as the appellate court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the court may think fit.

5. (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the court shall not make an order staying the execution of the decree."

2. It is contended on behalf of the claimants, respondents Nos. 1 to 5, that the award of the Tribunal is like a decree referred to in O. 41 of the Code. On the other had, the learned counsel for the appellant contends that the said rules are not applicable to awards made by the Tribunal under the Act. His contention is that the award is neither a decree nor an order of a court. He further submits that the Tribunal under the Act is not a court and, therefore, the said rules of O. 41 are not applicable. An application for compensation arising out of an accident of the nature specified in s. 110 of the Act is made under s. 110A of the Act. The Claims Tribunal makes an award under s. 110B of the Act. Section 110C of the Act makes provision regarding powers and procedure of the Tribunal. Section 110D of the Act provides for appeals. Under this section any person aggrieved by an award of the Claims Tribunal is allowed to prefer an appeal to the High Court. The present appeal was filed by the appellant under this section. There are a number of judgments holding that an award made by the Claims Tribunal is neither a decree nor an order of court and that the Claims Tribunal under the Act is not a court. The learned counsel for the claimants-respondents Nos. 1 to 5, in view of the various Judgments also, does not contest the same. His contention is that the appeal filed in the High Court would be governed by the practice and procedure of this court unless there is any special provision made either in the Act or in the Rules framed under the Act. The Act or Rules do not prescribe any special procedure for the decision of an application for stay of execution of the award made by the Tribunal. Section 117 of the Code provides that the provisions of the Code shall apply to the High Court. Further, s. 141 of the Code provides that the procedure provided in the Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any court of civil jurisdiction. Thus, it is contended on behalf of the respondents-claimants that the proceedings of the appeal, though filed under the Act, are to be governed by the Code. Order 41 of the Code applies to appeals from the original decrees and O. 43, r. 2 of the Code prescribes that the rules of O. 41 shall apply to appeals from orders. Thus, rr. 1(3) and 5(5) of O. 41 of the Code shall apply to a decree or order for payment of money. In Collector, Varanasi v. Gauri Shankar Misra, , it is laid down (p. 387) :

"The rule is well settled that when a statute directs that an appeal shall lie to a court already established, then that appeal must be regulated by the practice and procedure of that court."

3. The matter before the Supreme Court pertained to the proceedings under s. 19(1)(f) of the defense of India. Act, 1939. It was held that the High Court functions as a "court" and not as a designated person and that the practice and procedure of the High Court regulates the appeal under the defense of India Act. Section 19(1)(f) of the defense of India Act provided an appeal to the High Court. Thus I am of the view that the appeal filed by the appellant under s. 110D of the Act is to be governed by the practice and procedure of this court. The practice and procedure of this court according to ss. 117 and 141 of the Code is as provided in the Code itself. These provisions are to be made applicable as far as possible. Thus, the word "award" may be read for the word "decree" in these rules, and an appropriate order can be passed for the stay of execution of the impugned award of the Tribunal in terms of rr. 1(3) and 5(5) of O. 41 of the Code. In Smt. Ishwar Devi Malik v. Union of India, , this court in exercise of powers under O. 41, r. 33 of the Code awarded compensation in favor of the respondents-claimants in order to do complete justice between the parties. In order words r. 33 of O. 41 of the Code was applied by this court to the award of the Claims Tribunal. Similarly, the provisions of r. 22 of O. 41 of the Code were applied by this court in Delhi Transport Undertaking v. Raj Kumari [1972] ACJ 403. It was held :

"When an appeal is filed in the High Court all the procedure of the said court becomes applicable".

4. It was also been observed in the said judgment of this court :

"Even where an applicant jurisdiction is conferred under a special statute, the rules and practice and procedure of the Code become applicable to the appeal unless there is any specific rule to the contrary in the special statute". In the said case after the filing of the appeal under s. 110D of the Act the respondent filed cross-objections and the question raised was whether cross-objections could be filed. The answer was in the affirmative. There are various judgments of various courts where the provisions of r. 22 of O. 41 of the Code was applied to appeals under the Act.

5. The learned counsel for the appellant referred to s. 111A of the Act under which the State Govt. is empowered to frame rules for the purpose of carrying into effect the provisions of ss. 110E. Clause (b) of s. 111A provides for making of the rules regarding the procedure to be followed by Claims Tribunal in holding an inquiry. The Delhi, Motors vehicles Rules, 1940, were framed by the Chief Commissioner, Delhi, in exercise of the powers conferred by s, 111A of the Act. These rules have been amended form time to time. Rule 8.22 of the Delhi Motor Vehicles Rules, 1940, provides that the provisions of the First Schedule of the CPC as detailed therein would apply to the proceedings before the Claims Tribunal. Obviously O. 41 is not one of the orders of the Code made applicable to proceedings before the Claims Tribunal. It is, therefore, contended on behalf of the appellant that the orders of the Code which were applicable to the proceedings under the Act were mentioned in the rules and as O. 41 does not find place in the said r. 8.22, this court cannot apply the rules under O. 41 of the Code to the appeals. The argument does not appear to be correct. Rule 8.22 which reads as under provides for the application of the provisions of the Code only to the proceedings before the Claims Tribunal.

"8.22. Code of Civil Procedure of apply in certain cases - The following provisions of the First Schedule to Code of Civil Procedure, 1908, shall, so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX Order XIII, Rules 3 to 10; Order XVI, Rules, 2 to 21; Order XVII; and Order XXIII, Rules 1 to 3."

6. No other provisions has been brought to my notice either in the Act or in the Rules to exclude the application of rr. 1(3) and 5(5) of O. 41 of the Code of the proceedings before this court arising out of appeals against the awards made by the Claims Tribunal. When an appeal is filed against the awards of the Claims Tribunal awarding compensation arising out of the accidents, the provisions of rr. 1(3) and 5(5) of O. 41 are thus applicable to appeals and applications for the stay of execution of the award.

7. The further contention of the learned counsel for the appellant is that the Tribunal awarded compensation to the extent of Rs. 80,000 while under s. 95 of the Act, the insurance company is not liable for more than Rs. 50,000. This is a controversial point which is to be decided at the time of hearing of the appeal. Under r. 1(3) of O. 41 of the Code, there are two option either to direct the appellant to deposit the awarded amount or require it to furnish security. In view of s. 95 of the Act it does not appear to be a case for a direction to the appellant to deposit any amount over and above Rs. 50,000. The appellant has already deposited Rs. 50,000 and for the balance of Rs. 30,000 it would be sufficient if the appellant-insurance company furnishes a security bond in favor of the Claims Tribunal for payment of the remaining amount to the claimants respondents Nos. 1 to 5 in accordance with the decision of the appeal by this court. The appellant-insurance company is accordingly directed to furnish a security bond for the remaining amount under the award including costs and interest to the satisfaction of the Claims Tribunal within one month from today. The security bond is not to be accepted by the Claims Tribunal without notice to the claimants-respondents Nos. 1 to 5. Parties are left to bear their own costs.