Section 173 makes provision for appeal to High Court by the aggrieved against the orders of Claims tribunal and where the person aggrieved is the person who has to pay the compensation such person shall deposit 50 percent of the amount awarded as directed by the High Court.
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 Court117.
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 of fifty per cent, of the amount so
awarded, whichever is less, in the manner directed by the High Court118.
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 time119.
No appeal shall lie against any award of a Claims Tribunal if the amount in
dispute in the appeal is less than ten thousand rupees120.
117
The Motor Vehicles Act, 1988, Section 173 (1) 118
Ibid., Proviso to Section 173 (1) 119
Ibid., Proviso to Section 173 (1) 120
The condition of deposit of Rs. 25,000/- or 50% of the amount, whichever is less, as imposed by the first proviso to Section 173(1) is a rule which is unexceptionable. Nor can the amount as specified to be deposited be reduced. Such conditions are imposed in other statutes, for example, under section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and under the third proviso to section 30 of the Workmen’s Compensation Act, 1923.
In H. Paul v. Bank of India121 it was held that the remedy of appeal cannot be
said to be illusory merely because the appellant is required to deposit the prescribed amount.
Provision of appeal has been provided under Section 173 of Motor Vehicle Act. But the courts have held that the right to appeal is available only to the driver and owner against whom the award is passed. The right of Insurance Company to file appeal is not permitted on the ground of quantum or negligence. Insurance Company can file appeal only on the ground of statutory defenses available.
In circumstances where the application under Section 170 has been rejected, the insurance Company has got right of one judicial review on the reasons of rejection either by filing writ petition or to agitate the matter in appeal. Similarly, in all other circumstances where no order has been passed by the court or no reasons have been recorded by the Tribunal. Such act cannot be accountable to the insurer and the insurer must get an opportunity to challenge the same. I am impressed by a judgment passed by Himachal Pradesh High Court in which the court has referred the 3 Judges Bench Supreme Court judgment of Nicolletta Rohtagi and has held that in these circumstances the insurer can file appeal and agitate these issues in appeal before the Court and if the court found it proper will permit to continue the appeal and to decide the appeal on merit.
121
In my humble opinion this provision (section 173) is not of benefit to anybody because it do not provide the right to appeal to one of the litigating party who has to make payment of compensation i.e. insurer. If the owners are not participating or presenting themselves in order to help the claimants, the insurer would not be in a position to control the high awards in want of cross examination of income and other issues. Legislature has already restricted the right of defense but a further restriction of not participating in the trial would not be just. There is imminent need of amendment to permit the insurer to contest the claims as they are the persons who have to make payment of the compensation. Once the insurance cover is available, the owner feels safe and do not help the Insurance Company in the process of contesting the claim.
Further, now a day, if seriously quantified, a good number of cases are coming as a flood in the courts of law for compensation. This is because of huge sum of compensation are allowed to the claimants and for that purpose fake accidents, fake drivers are planned with the connivance of the police. The police in connivance do not investigate the matter of delay in lodging of F.I.R., delay in recording of statements. In these circumstances, a right to contest on merit and quantum should be provided to the Insurance Company in order to make the contest just and equitable.
It may be useful to mention here that the condition of deposit cannot be bypassed by filling a writ petition instead of appeal. In Sushil Kumar Jaiswal v. Bank of
India122 it was held that the petitioner cannot be permitted to resort to exercise of revisional jurisdiction under Article 227 merely to avoid the rigour of the statutory provision of appeal.
122
In Dwarka Nath v. Income Tax Officer, Kanpur123, it was observed by the Supreme Court, as far as back in 1966 that Article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. A wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised was designedly used by the constitution.
In Oriental Insurance Co. Ltd. v. M.A.C.T. Perumbavoor124 it was held that
the bar of appeal in case of the award being less than Rs. 10,000/- reflects the intention of the parliament that if amount of an award is less than Rs. 10,000/- or below, the same should be paid without demur or contest. It follows that the bar created by Section 173 (2) cannot be bypassed by filling a writ petition except in extraordinary circumstances.