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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
RAVI NATH TILHARI, K. MANMADHA RAO, JJ.
M/s. United India Insurance Company Limited – Appellant
Versus
Undamatla Varalakshmi and Others – Respondents
I.A. No. 2 of 2023, M.A.C.M.A. No. 221 of 2023
Decided On : 05-07-2023
MV Act - Applicability of Order 41 Rule 3-A CPC - Section 173 of the Motor Vehicles Act, 1988 - Summary of Acts and Sections: Section 173 of the MV Act provides for filing of an appeal by any person aggrieved by an award of a Claims Tribunal, to the High Court, subject to the provisions of sub-section (2), within 90 days from the date of the award. The second proviso to Sec.173(1) bars entertaining the appeal after expiry of the period of 90 days, but if the High Court is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time, it may entertain the appeal. The MV Act does not provide for the procedure for the appeals filed under Section 173 of the MV Act, though it provides for the Forum of the appeal i.e., the High Court. Rule 473 of the APMV Rules 1989 provides for the applicability of certain provisions of the CPC, to the proceedings before the Claims Tribunal. The appeal under Section 173 of MV Act is not a proceeding before the Claims Tribunal, but before the High Court. Consequently, the submission of the learned counsel for the appellant, based on Rule 473 of the APMV Rules 1989 that since Order 41 CPC does not find mention in Rule 473, therefore it would not apply to appeals under Section 173 of MV Act, is misconceived. Any other provision either under the MV Act or the APMV Rules 1989 has not been brought to our notice, which excludes the applicability of the Order 41 CPC to the appeals filed under Section 173 of the MV Act before the High Court. In view of the judgment of the Hon’ble the Apex Court, the normal rules which apply to appeals before High Court, are applicable. Order 41 CPC is that normal rule, which applies to appeals before the High Court.
Fact of the Case:
The appellant, M/s. United India Insurance Company Limited, filed an appeal under Section 173 of the Motor Vehicles Act, 1988 challenging the award of the Motor Accidents Claims Tribunal. The appeal was barred by limitation, and the appellant sought condonation of delay and stay of execution of the award.
Finding of the Court:
The Court found that in a time-barred appeal under Section 173 of the Motor Vehicles Act before the High Court, stay of execution of the award cannot be granted, so long as the delay condonation matter is not decided finally, in view of the 2nd proviso to Section 173 of the MV Act & Order 41 Rule 3A (3) CPC. The Court rejected the appellant's prayer to stay the award at that stage and rejected I.A. No. 2 of 2023.
Issues: The main issue was regarding the applicability of Order 41 Rule 3-A CPC to the appeals under Section 173 of the MV Act and whether pending consideration of the application for condonation of delay in filing appeal, the operation/execution of the award of the Tribunal can be stayed.
Ratio Decidendi: The Court held that in a time-barred appeal under Section 173 of the Motor Vehicles Act before the High Court, stay of execution of the award cannot be granted, so long as the delay condonation matter is not decided finally, in view of the 2nd proviso to Section 173 of the MV Act & Order 41 Rule 3A (3) CPC. The Court also overruled the judgment in New India Assurance Co. Ltd., Visakhapatnam vs. Srikakulapu Ayyababu.
Final Decision: The Court rejected the appellant's prayer to stay the award at that stage and rejected I.A. No. 2 of 2023. The appellant was given the liberty to file a fresh application after the delay condonation matter is decided finally, if the occasion so arises.
ORDER :
1. Heard Sri Naresh Byrapaneni, learned counsel for the petitioner/appellant.
2. M/s. United India Insurance Company Limited has filed the appeal under Section 173 of the Motor Vehicles Act, 1988 (in short “MV Act”) challenging the award of the Motor Accidents Claims Tribunal-cum-V Additional District and Sessions Court, East Godavari at Rajamahendravaram (in short “the Tribunal”) dated 14.09.2022, passed in M.V.O.P.No. 324 of 2018, partly allowing the claim of the claimants/respondents 1 to 5.
3. The appeal is barred by limitation.
4. I.A.No. 1 of 2023 is for condonation of delay in filing the appeal.
5. This I.A.No. 2 of 2023 is an application for grant of stay of operation of the decree and judgment dated 14.09.2022 in M.V.O.P.No. 324 of 2018 till disposal of the appeal.
6. Sri Naresh Byrapaneni, learned counsel for the petitioner/appellant submitted that though the appeal is barred by limitation and I.A.No. 1 of 2023 is yet to be decided finally, the appellant may be granted stay of execution of the award/decree of the Tribunal. He submitted that there is no bar in grant of stay of execution of the decree/award during pendency of the application for condonation of delay in filing appeal. He placed reliance on the judgments in Badanaboyina Veera Nageswara Rao vs. Badanaboyina Rama Devi, (1997) 5 ALD 668 (FB) and New India Assurance Co. Ltd. Visakhapatnam vs. Srikakulapu Ayyababu, 2009 (3) ALD 723 as also in the interim order dated 11.07.2017 passed in MACMA MP No. 2802 of 2017 in MACMA No. 1510 of 2017. He further placed reliance on Rule 473 of the Andhra Pradesh Motor Vehicles Rules, 1989 (in short “APMV Rules 1989”) regarding the application of the provisions of the Code of Civil Procedure (in short “CPC”) to contend that Order 41 CPC has no application to the appeals under the Motor Vehicles Act, as the said provision has not been made applicable by Rule 473 of the APMV Rules 1989.
7. We have considered the submissions advanced, the legal provisions and the judgments/order placed before us.
8. The short point which arises for our consideration is regarding the applicability of Order 41 Rule 3-A CPC, in particular, to the appeals under Section 173 of the MV Act. In other words, whether pending consideration of the application for condonation of delay in filing appeal, the operation/execution of the award of the Tribunal can be stayed.
9. Section 173 of the Motor Vehicles Act 1988 provides as under:
173. Appeals:
(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 one lakh rupees.”
10. Section 173 (1) of the MV Act thus provides for filing of an appeal by any person aggrieved by an award of a Claims Tribunal, to the High Court, subject to the provisions of sub-section (2), within 90 days from the date of the award. Sub-Section (2) provides that no appeal shall lie against any award of the Claims Tribunal if the amount in dispute in the appeal is less than Rs.1 lakh.
11. The second proviso to Sec.173(1) bars entertaining the appeal after expiry of the period of 90 days, but if the High Court is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time, it may entertain the appeal.
12. The
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