Kabla Singh vs Kailash Kumari and Others

J.P. Singh, J.—On this appeal coming up for consideration, learned Counsel for the insurance company had raised a preliminary objection

that appellant's appeal questioning Motor Accidents Claims Tribunal, Udhampur's award of 13.11.2006 for an amount of Rs. 5,99,496 along with

interest at the rate of 7.5 per cent per annum against the appellant owner, was not maintainable because the appellant had not deposited requisite

statutory amount of Rs. 25,000 in terms of Section 173 of the Motor Vehicles Act, 1988, in the court at the time of presentation of the memo of

appeal.

Mr. V.B. Gupta, learned Counsel for the appellant, on the other hand, submits that the appellant has deposited the amount in terms of the order

of the court giving him liberty to deposit the amount and that the non-deposit of amount at the time of presentation of the memo of appeal would

not affect the maintainability of the appeal.

I have considered the submissions of learned Counsel for the parties.

Before dealing with the submissions raised at the bar, Section 173 of the Motor Vehicles Act, 1988, needs to be noticed. It reads thus:

Appeals.â€"(1) 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 per cent 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.

(2) No appeal shall lie against any award of a Claims Tribunal if the amount in dispute in the appeal is less than ten thousand rupees.

Does the expression 'entertained' appearing in the first proviso to Section 173, mean the presentation of the memo of appeal in the Registry or

its consideration at the time of its admission by the High Court?â€"is the question which falls for consideration to examine the objection raised at

the Bar as to the maintainability of appellant's appeal. Another expression appearing in the proviso to the section, i.e., 'in the manner directed by

the High Court', may also need consideration while answering the question.

Expression 'entertain' came up for consideration in Rajasthan State Road Transport Corporation Vs. Smt. Santosh and Others, when it was

interpreted as follows:

(5) The dictionary meaning of the word 'entertain' is either 'to deal with' or 'admit to consideration'. The question, therefore, is at what stage can the

appeal be said to be entertained for the purpose of admission and disposal of the stay application within the meaning of the proviso of the aforesaid

section, which clearly provides that appeal will not be entertained by the High Court unless the appellant has deposited the requisite amount

mentioned in the said section.

(6) Numerous cases exist in law reports where the word 'entertained' or similar cognate expressions have been interpreted by the courts. If the

legislature intended that the word 'file' or 'receive' was to be used, there was no difficulty of using those words. In some of the statutes, such

expressions have in fact been used, e.g., under Order 41, Rule 1, Civil Procedure Code, it is stated that a memorandum shall not be filed or

presented unless it is accompanied, etc. Similarly, in Section 17 of the Small Cause Courts Act, 1870, the expression is 'at the time of presenting

the application'. Thus, it would appear from this that the legislature was not at a loss for words if it had wanted to express itself by using any

phraseology. The legislature has used the word 'entertain' and it must be accepted that it has been used advisedly.

(7) The expression 'entertain' is explained by a Division Bench of Allahabad High Court as denoting the point of time at which an application to set

aside the sale is heard by the court. The expression 'entertain' does not mean the same thing as filing of the application. The aforesaid view was

expressed by Allahabad High Court in Kundan Lal Vs. Jagan Nath Sharma, . A similar view has again been taken in Dhoom Chand Jain Vs.

Chaman Lal Gupta and Another, , in which the learned Desai, C.J. and Dwivedi, J. gave the same meaning to the expression 'entertain'.

(8) In my humble opinion, the High Court u/s 173 of the Motor Vehicles Act, 1988, cannot refuse to take an appeal, which is not backed by

deposit of Rs. 25,000 or 50 per cent of the amount awarded against the appellant, whichever is less, but it cannot judicially consider such appeals

either for admission or for disposal of the stay application, therefore, I hold that mere filing of an appeal and stay application by the appellant u/s

173 of the Motor Vehicles Act, 1988, will not be entertained by the court unless the mandatory provision contemplated in the aforesaid section is

complied with by appellant by depositing Rs. 25,000 or 50 per cent of the amount awarded against the appellant, whichever is less, in pursuance

of the direction of this Court prescribing manner of deposit.

Approving the law as laid down in Rajasthan State Road Transport Corporation Vs. Smt. Santosh and Others, , the Supreme Court of India

while dealing with the expression 'entertain' held in Lakshmi Rattan Engineering Works Ltd. Vs. Asstt. Commr. Sales Tax, Kanpur and Another,

as follows:

(10) In our opinion, these cases have taken a correct view of the word 'entertain' which according to dictionary also means 'admit to

consideration'. It would, therefore, appear that the direction to the court in the proviso to Section 9 is that the court shall not proceed to admit to

consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up

by the court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai, C.J.) holds that the

words 'accompanied by' showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be

accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the

memorandum of appeal. In our opinion, making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under Order 41 of

Code of Civil Procedure, the expressions 'appeal' and 'memorandum of appeal' are used to denote two distinct things. In Wharton's Law Lexicon,

the word 'appeal' is defined as the judicial examination of the decision by a higher court of the decision of an inferior court. Appeal is the judicial

examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for

purposes of the rules of the court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment

of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the

making of the deposit of admitted tax.

The above referred judgments, therefore, hint at construing the expression 'entertained' as a stage when the appeal comes up for motion hearing

or otherwise before the court and not the stage when the memo of appeal is filed in the Registry.

Section 173 provides for rejection of an appeal u/s 173 of the Motor Vehicles Act in two situations, i.e., (1) when the appellant does not

deposit requisite statutory amount in the court in terms of first proviso to Section 173, and (2) when the dispute involved in the appeal is less than

Rs. 10,000. The expression used for these two contingencies are, however, different. Whereas intention of Parliament in providing that no appeal

would be maintainable when the dispute in the appeal is less than Rs. 10,000, is explicitly clear from the use of the expression 'no appeal shall lie' in

Section 173(2) of the Act; such an intention, however, does not appear to be so when it uses the expressions like 'entertained' and 'in the manner

directed by the High Court' in the first proviso to Section 173 of the Motor Vehicles Act.

While construing the expression 'entertained' appearing in the first proviso, due regard, therefore, needs to be had to the expression 'in the

manner directed by the High Court' because the later expression would lose its efficacy if the word 'entertained' had to be construed in its absence.

Thus harmonising the construction of the above-mentioned two expressions appearing in the first proviso to Section 173 of the Motor Vehicles

Act, in accordance with the scheme of Chapter XII of the Motor Vehicles Act and going by the law laid down in Rajasthan State Road Transport

Corporation Vs. Smt. Santosh and Others, and approved in Lakshmi Rattan Engineering Works Ltd. Vs. Asstt. Commr. Sales Tax, Kanpur and

Another, , interpreting the expression 'entertain' it appears that unless the High Court passes an order disclosing the manner in which the statutory

amount was required to be deposited in the court, the appellant may not be required to deposit the statutory amount at the time of the presentation

of the memo of appeal and resultantly his memo of appeal presented in the Registry in the absence of the deposit of the statutory amount and the

order of the High Court disclosing the manner in which the amount was to be deposited by the appellant, cannot be said to be incompetent.

The question posed is, accordingly, answered by holding that word 'entertained' appearing in the first proviso to Section 173 of the Motor

Vehicles Act would mean consideration of the appeal by the court for its admission to hearing and not when the memo of appeal is presented in the

Registry.

For all what has been said above, it is accordingly held that a memo of appeal u/s 173 of the Motor Vehicles Act against an award of the

Motor Accidents Claims Tribunal would not become incompetent in the absence of deposit of the statutory amount of Rs. 25,000 unless there was

an order by the court for deposit of the amount in the manner directed by the court. The appeal would, however, become incompetent when

despite passing of an order by the court, the appellant does not deposit the statutory amount. Such an appeal can, therefore, be refused its

admission to hearing being incompetent.

The appellant has deposited the statutory amount of Rs. 25,000 after he was given liberty by the court to deposit the amount vide its order

dated 21.12.2006.

Appellant's appeal cannot, therefore, be said to be suffering from any defect which may come in the way of its admission to hearing. The

preliminary objection raised by Mr. D.S. Chauhan, learned Counsel for the insurance company, therefore, fails and is, accordingly, rejected.

The appeal is admitted to hearing and shall be taken up for hearing after notice to the counsel appearing for the parties after four weeks.