Tekchandra Goutam vs Santosh
2023 Latest Caselaw 17785 MP

                                                        1
                            IN      THE   HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                            ON THE 26 th OF OCTOBER, 2023
                                             MISC. APPEAL No. 1881 of 2015

                           BETWEEN:-
                           IQBAL AHMAD S/O ILASYAS AHMAD, AGED ABOUT 18
                           YEARS, VILL. BICHHIYA P.S. BICHHIYA DISTT. MANDLA
                           (MADHYA PRADESH)

                                                                                 .....APPELLANT
                           (BY SHRI SANJAY PATEL - ADVOCATE)

                           AND
                           1.    SANTOSH S/O ROOP LAL RAIKWAR, AGED ABOUT
                                 35 YEARS, V.F.J. ESTATE RANJHI WARD NO. 40
                                 AMEDKAR WARD RANJHIU TEH. AND DISTT.
                                 JABALPUR (MADHYA PRADESH)

                           2.    TEKCHAND GAUTAM S/O AYALDAS GAUTAM
                                 DRAWKA NAGAR, LAL MATI JABALPUR H.NO. 94,
                                 TEHSIL AND DISTT. JABALPUR (MADHYA
                                 PRADESH)

                           3.    RELIANCE INSURANCE COMP. LTD. JABALPUR
                                 KHANUJA TOWER GROUND FLOOR BEHIND OF
                                 THE BULARTONE INDIA, STANDARD MARUTI
                                 APARTMENT JABALPUR (MADHYA PRADESH)

                                                                               .....RESPONDENTS
                           (RESPONDENT No.3 BY SHRI T.S. LAMBA - ADVOCATE )

                                             MISC. APPEAL No. 1179 of 2015

                           BETWEEN:-
                           TEKCHANDRA GOUTAM S/O AAYALDAS GOUTAM,
                           AGED ABOUT 55 YEARS, H NO. 94 DWARKA NAGAR
                           LALMTI JABALPUR (MADHYA PRADESH)

                                                                                 .....PETITIONER
Signature Not Verified
                           (NONE)
Signed by: AMITABH
RANJAN
Signing time: 27-10-2023
19:34:46
                                                               2

                           AND
                           1.    SANTOSH S/O ROOPLAL RAIKWAR, AGED ABOUT
                                 35 YEARS, VFJ ESTATE RANJHI WARD NO 40
                                 AMBEDKAR WARD RANJHI (MADHYA PRADESH)

                           2.    RELIANCE GENERAL INSURANCE COMPANY
                                 LIM ITED KHANUJA TOWER GROUND FLOOR,
                                 GROUND STANDARD MARUTI APARTMENT
                                 DISTT JABALPUR (MADHYA PRADESH)

                           3.    IQBAL AHMED S/O LLIYASH AHMED, AGED
                                 ABOUT 18 YEARS, GRAM BICHIYA THANA AND
                                 TEHSIL BICHAIYA DISTT MANDLA (MADHYA
                                 PRADESH)

                                                                                        .....RESPONDENTS
                           (RESPONDENT No.2 BY SHRI T.S. LAMBA - ADVOCATE )
                           (RESPONDENT No. 3 BY SHRI SANJAY PATEL - ADVOCATE)

                                 These appeals coming on for final hering this day, the court passed the
                           following:
                                                               ORDER

These appeals are filed by the claimant and the owner of the offending vehicle being aggrieved of award dated 03.03.2015 passed by learned Addl. Motor Accident Claims Tribunal, Mandla in Claim Case No. 317 of 2014.

As far as appeal filed by the owner is concerned, it is based on a ground that order of exoneration of the Insurance Company is illegal and arbitrary.

It is submitted that it has come in the evidence that Iqubal Ahmad was traveling alongwith owner of the goods namely Mohd. Usuf Khan who was transporting his blackberry (Jamun). Therefore, there being coverage for passenger, exoneration of Insurance Company is arbitrary and illegal.

Claimant has filed this appeal seeking enhancement of compensation. However, claimant has not paid any Court fees, which is mandatory for maintenance of his appeal. A Co-ordinate Bench of this High Court in M.A. No.781/2015 (Ramratan Singh Vs. Janakchand Rana), has held as under:- Signature Not Verified Signed by: AMITABH RANJAN Signing time: 27-10-2023 19:34:46

"Learned counsel for the appellants submitted that according to Article 11 of Schedule II of the Court Fees Act 2.5% Court fees should be paid on the enhanced amount. The amount claimed by the appellants in the appeal cannot be called as enhanced amount but the enhanced amount will be such as would be given by the Court after adjudication of the claim of the appellants. Registry wrongly demanded 2.5% Court fees on the amount which is claimed by the appellants in the memo of appeal. There is no certainty as to what amount will be awarded by the court. Appellants are only required to pay court fee on the amount which will be determined as enhanced amount by this court at the time of judgement of this appeal. So appellant may be allowed to make payment of Court fee at the time of final decision of the appeal on enhanced compensation which may be determined by the court.

In this regard learned counsel also placed reliance on this court judgments passed in MA.No.1911/2010 (Hemraj Basore Vs. Pradeep Yadav & another) vide order dated 06/11/2012 , Galiya & others Vs. Darbar & others, 2012(2) ACCD 608 (MP), Smt. Nilofar Anjum & another Vs. Mohd. Aasif & another, 2012 (2) ACCD 1017 (MP) , Badrilal Vs. Harikishan

& others, 2012 (2) ACCD 1049 (MP), Smt. Leelabai & others Vs. Ramesh & others 2012 (2) ACCD 1023 (MP), Dilip Vs. Jakir Mohammad & others, 2012 (2) ACCD 1022 (MP), Rakesh Vs. Sunil & others, 2012 (2) ACCD 1018 (MP), Savita Vs. Shri Kumar Dhruve, 2012 (2) ACCD 589 (MP), Preetam Signature Not Verified Signed by: AMITABH RANJAN Signing time: 27-10-2023 19:34:46

Lal Garg & others Vs. Vijay Kumar Gujrati & others, passed in MA.No.852/2015 vide order dated 21/12/2016, Arun Kumar Dubey VsVijay Kumar Guyrati and others passed in MA.No.851/2015 vide order dated 21/12/2016 and Kerala High Court judgement passed in Basid Vs K.C. Sanu reported in 2015 ACJ 1856.

This court has gone through the record and arguments advanced by the counsel of the appellants.This appeal has been filled by the appellants u/s 173 Motor Vehicle Act. The memo of appeal preferred u/s 173 Motor Vehicle Act is required to be affixed with Court Fees as per Article 11 of Schedule II of Court fees Act. Which reads as thus:-

"(a) when presented to the High Court-

(i) By the claimant for enhancement of 2.5 percent of the amount of award passed by the Motor enhanced amount Accident Claims Tribunal. Claimed in appeal

From the wordings of the provisions of Article 11 of Schedule II of Court fees Act. "2.5 percent of the enhanced amount claimed in appeal", it is clear that court fees will be paid on that enhanced amount which is claimed by the appellants in their appeal memo and not on the amount which will be determined by the court after adjudication of the claim of the appellants and the court fees is payable at the time of presentation of the appeal not after judgement. Section 4 of the Court Fees Act, 1870 bars the court from receiving plaint/appeal if it does not bear the proper court fees. Although Section 149 CPC acts as an exception to the said bar and enables the court to permit the plaintiff to pay the deficit court fees at a Signature Not Verified Signed by: AMITABH RANJAN Signing time: 27-10-2023 19:34:46

subsequent stage. But this section also does not give unfettered power to court for giving time to applicant for paying court fee. Apex court in the case of A. Nawab John & Ors vs V. N. Subramaniyam reported in (2012) 7 SCC 738 para 23 of his judgement observed as thus:-

"Section 149 CPC does not confer an absolute right in favour of a plaintiff to pay the court fee as and when it pleases the plaintiff. It only enables a plaintiff to seek the indulgence of the Court to permit the payment of court fee at a point of time later than the presentation of the plaint. The exercise of the discretion by the Court is conditional upon the satisfaction of the Court that the plaintiff offered a legally acceptable explanation for not paying the court fee within the period of limitation"

Order 7 rule 11 of CPC also provides that the plaint shall be rejected (c) "where the relief claimed is properly valued, but the plaint i s written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so"

The Judgements of this court passed in MA.No.1911/2010 (Hemraj Basore Vs. Pradeep Yadav & another), Galiya & others Vs. Darbar & others, Smt. Nilofar Anjum & another Vs. Mohd. Aasif & another, Badrilal Vs. Harikishan & others, Smt. Leelabai & others Vs. Ramesh & others, Dilip Vs. Jakir Mohammad & others, Rakesh Vs. Sunil & others, Savita Vs. Shri Kumar Dhruve, (supra) relied by the learned counsel of the Signature Not Verified Signed by: AMITABH RANJAN Signing time: 27-10-2023 19:34:46

applicants do not much help to the applicants. In the aforementioned cases this court did not lay down any principle that appellants are required to pay court fee only on that amount which enhanced by the court after adjudication of appeal and court fee will be paid after adjudication of the appeal by this court. On the contrary the above cases were entertained by the registry of this court without payment of requisite court fees. So in the cases, the court had given directions at the time of judgement that the claimant shall pay the court fees on the enhanced amount.

Although, this court in the case of Preetam Lal Garg & others Vs. Vijay Kumar Gujrati & others, MA.No.852/2015 and Arun Kumar Dubey Vs Vijay Kumar Guyrati and others MA.No.851/2015 vide order dated 21/12/2016 gave the permission to the appellants of these cases that they will be permitted to pay court fees on the enhanced amount after judgement in the

appeal. But in these cases also this court did not lay down any principle that appellants are required to pay court fee only on the amount enhanced by the court in the appeal and that the court fee will be paid after adjudication of the appeal by the court. The orders are limited for these cases only.

Likewise the Kerala High Court judgement passed in the case of Basid Vs K.C. Sanu (Supra) is also not on the point of payment of court fees in the appeal. On the other hand the division bench of this court in the case of Dr. Hajarilal Agrawal vs State Of Madhya Pradesh And Ors. 2006 (4) MPHT 237 turning down

Signature Not Verified Signed by: AMITABH RANJAN Signing time: 27-10-2023 19:34:46

the prayer of appellant that appellant may be allowed to make payment of Court fee at the time of final decision of the appeal on compensation which may be determined by the court and held - Court fees is payable on valuation of appeal. The amount for which adjudication is sought not on determined, on the initial stage where Court-fee is required to be paid".

The Apex Court in the case of K.C. Skaria Vs. Govt. of State of Kerala & Anr. reported in AIR 2006 SC 811 held that non-payment of Court fees cannot be claimed as a matter of convenience or on the ground of hardship or on the ground that person suing did not know the exact amount due to him as that will open the floodgates for converting several types of money claims into suits for accounts to avoid payment of court fees at the time of institution. From the above discussion it is clear that the appeal is not maintainable without payment of Court fees on the claimed enhanced amount i.e. Rs.1,00,000/-. If the claimants are unable to pay the Court fee on account of indigency, they can always seek the leave to file an appeal as an indigent person under Order 44 of the Code of Civil Procedure, 1908."

In the present case, appeal is not filed by an indigent person. Counsel for the appellant despite grant of opportunity has refused to pay the Court Fee.

As per the decision of the Co-ordinate Bench of this court passed in M.A. No.781/2015 (Ramratan Singh Vs. Janakchand Rana), payment of court fees is mandatory. Since, court fees is not paid, appellants will not be entitled to any enhancement, in view of the decision rendered by this Court in Signature Not Verified Signed by: AMITABH RANJAN Signing time: 27-10-2023 19:34:46

M.A. No. 4757/2008 (Surajlal Vs. Pappu @ Munna and others).

Accordingly the appeal filed by the claimant is not maintainable on the ground of quantum.

As far as appeal filed by the owner is concerned, there a specific finding that Iqubal Ahmad was not covered under the policy as he was a gratuitous passenger.

In view of such facts, exoneration of the Insurance Company cannot be faulted with in an appeal filed by the owner. However, since the appeal has been filed by the claimant also, for violation of terms and conditions of the policy, it is directed that Insurance Company shall pay the compensation in favour of the claimant as awarded by the Claims Tribunal and they will be entitled to recover it from the owner/driver of the offending vehicle.

With the aforesaid modification in the impugned award, the appeal filed by the claimant is allowed in part and disposed of.

(VIVEK AGARWAL) JUDGE Amitabh

Signature Not Verified Signed by: AMITABH RANJAN Signing time: 27-10-2023 19:34:46