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2007 Supreme(Gau) 587
IN THE HIGH COURT OF GAUHATI (FULL BENCH)
D. Biswas, Amitava Roy and Iqbal Ahmed Ansari, JJ.
Oil India Limited
Vs.
Shri Neil Rose and Ors.
Decided On : 30.08.2007
An appeal filed within the period of limitation cannot be admitted for hearing on merit unless the statutory deposit is made, as per the interpretation of Section 173 of the Motor Vehicles Act.
Headnote:
Appeal - Motor Vehicles Act - Section 173 - 173
Fact of the Case:
MAC Appeal No. 38 of 2005 was filed against an award passed by the Motor Accident Claims Tribunal, Kamrup, directing the appellant to pay compensation for accidental death. The prime question was the maintainability of the appeal due to the timing of the statutory deposit.
Finding of the Court:
The court analyzed conflicting judgments and interpreted Section 173 of the Motor Vehicles Act, emphasizing that an appeal filed within the period of limitation cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on a permitted date.
Issues: The main issue was the maintainability of the appeal under Section 173 of the Motor Vehicles Act without the statutory deposit being made within the prescribed period of limitation.
Ratio Decidendi: The court held that the provisions of limitation in Section 173 do not extend to the provision relating to the deposit of the statutory amount as embodied in the first proviso. An appeal filed within the period of limitation cannot be admitted for hearing on merit unless the statutory deposit is made.
Final Decision: The court disposed of the reference in terms of the decision in M/s. Lakshmiratan Engineering Works Ltd., clarifying that an appeal filed within the period of limitation cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on a permitted date.
D. Biswas, J.
1. The question referred to this Court for answer by the learned single Judge vide order dated 10-6-2005 reads as follows:
Whether an appeal under Section 173 of the Motor Vehicles Act. 1988, without the statutory deposit but otherwise filed in time, can be entertained if such deposit is eventually made beyond the period of limitation without the delay being condoned by the Court?
2. We have heard Mr. S. N. Sharma, learned Counsel for the appellant and Mr. M. Bhuyan, learned Counsel for the respondents.
3. MAC Appeal No. 38 of 2005 has been preferred against the award dated 15-10-2004 passed by the Motor Accident Claims Tribunal, Kamrup in MAC Case No. 809/1995 directing the appellant to pay an amount of Rs. 2,00,000/- as compensation for accidental death of Smt. Julima Rose involving a bus pressed into service by the appellant on hire. Being aggrieved thereby, the appellant has preferred MAC Appeal No. 38 of 2005 controverting the legality and propriety of the judgment on various grounds set forth in the memo of appeal.
4. The prime question amongst others canvassed, during the course of hearing of the appeal, before the learned single Judge relates to the maintainability of the appeal. Mr. Bhuyan, learned Counsel argued that the appeal is not maintainable for the reasons that the statutory deposit was made after expiry of the period of limitation as prescribed in Sub-section (1) of Section 173 without the delay being condoned by an order of the Court. Mr. S. N. Sarma, learned Counsel for the appellant argued at length to justify that the appeal filed within time cannot be thrown away merely because the statutory deposit was made after expiry of the period of limitation.
5. We may now have a look at the decisions relied upon by the learned Counsel for the parties. In the New India Assurance Co. Ltd. v. Shri Birendra Mohan De reported in 1995 (2) GLT 218, a Division Bench of this Court in session with the similar issue held as follows:
7. Mr. A. Chakraborty, learned senior counsel appearing on behalf of the respondents No. 1 and 2, namely, the claimant petitioners has submitted that this appeal is liable to be dismissed ab-initio as the Insurance Company did not deposit the amount of Rs. 25,000/- was deposited by the Insurance Company after expiry of prescribed period of limitation and, hence, such an appeal cannot be entertained. Mr. Dhar, learned Counsel appearing on behalf of the appellant, in his reply has submitted that since the memo of appeal was presented before this Court in time i.e. within the prescribed period of limitation the amount of Rs. 25,000/- though deposited after expiry of the period of limitation, the Court is entitled to entertain this appeal. But on perusal of the provision of Section 173 of the M.V. Act, we are of the view that such an appeal cannot be entertained unless and until the amount of Rs. 25,000/- is deposited within the prescribed period of limitation. For the reasons stated above, we are of the view that this appeal is devoid of merit and, accordingly, it is dismissed. No costs.
6. In similar tune with the judgment in Shri Birendra Mohan De (supra), Division Bench of this Court in Union of India v. Smt. Gita Banik reported in 1996 (2) GLT 246 dismissed the appeal holding that the appeal is not maintainable as the amount of Rs. 25,000/- was not deposited within the prescribed period of limitation.
7. View contrary to what is reflected in the above two Judgments is available in a Division Bench Judgment of this Court in New India Assurance Co. Ltd. v. Md. Makubur Rahman reported in (1993) 2 GLR 430. In this appeal, Hon'ble Mr. Justice U.L. Bhat, the then Chief Justice speaking for the Bench held:
7. Having regard to the language used in first proviso to Section 173(1) of the Act, the ordinary meaning of the expression "entertain" contained therein must receive its ordinary meaning, namely, "admit for consideration". It must follow that deposit need not be made at the time of fili
