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Rajabai Rajreddy Akitwar & Others v/s Union of India, through General Manager & Another


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    Civil Revision Application No. 76 of 2016 in First Appeal Stamp No. 6175 of 2016

    Decided On, 19 July 2018

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE R.K. DESHPANDE & THE HONOURABLE MR. JUSTICE ARUN D. UPADHYE

    For the Applicant: Vilas Deshpande, Advocate. For the Respondents: N.S. Rao, Assistant Government Pleader.



Judgment Text

R.K. Deshpande, J.

1. In the revision filed under Section 5(2) of the Maharashtra Court Fees Act, 1959 ('the Court Fees Act') read with Rule 4(v) of Chapter V of the Bombay High Court Appellate Side Rules, 1960, the order of the Taxing Officer and the Deputy Registrar, High Court, Bench at Nagpur, passed on 5-8-2016 in First Appeal Stamp No.6175 of 2016, is challenged. The Taxing Officer has held that the applicants have to pay the deficit court fees of Rs.12,405/- on the memo of appeal filed under Section 23 of the Railway Claims Tribunal Act, 1987 ('the Claims Tribunal Act').

2. Dr. (Smt.) Shalini PhansalkarJoshi, J., by her order dated 282017, noticed two conflicting views taken by the two Coordinate Benches of this Court and, therefore, referred the following legal issue for consideration by the Larger Bench :

'[i] In view of the two conflicting views taken by two Coordinate Benches of this Court, one in the case of Sumitradevi Mahipal Kureel vs. State of Maharashtra and others Mh.L.J. 2005(4) 133 and another in the case of Sisupalan K. Vallikalayil and another vs. Union of India 2016(4) Mh.L.J. 154, whether in an appeal under section 23 of the Railway Claims Tribunal Act, 1987 arising out of an application under section 16(1) read with section 13(1A) of the said Act, the Court fee payable is, as required by Article 13 under Scheduled II of the Maharashtra Court Fees Act, 1959, or under Article 3 of Schedule I of the said Act?'

3. In the decision of this Court in Sumitradevi's case, it was an appeal filed under Section 23 of the Claims Tribunal Act challenging the order passed by the Railway Claims Tribunal on the application under Section 16(1) read with Section 13(1A) of the said Act for the injury suffered by the deceased and it was held that the court fee was payable on the amount or value of the award sought to be set aside or modified according to the scale prescribed under Article 1, as required by Article 3 of Schedule I of the Court Fees Act.

4. In the decision of this Court (delivered by one of us, viz. R.K. Deshpande, J.) in Sisupalan's case, it was also an appeal under Section 23 of the Claims Tribunal Act, arising out of an application under Section 16(1) read with Section 13(1A) of the said Act for compensation on account of the death and it was held that the court fee of Rs.25/payable is as required by Article 13 of Schedule II of the Court Fees Act, on the Memorandum of Appeal when the appeal is not from a decree or an order having the force of a decree and presented to the High Court.

5. In the referal order, the appeal is also under Section 23 of the Claims Tribunal Act filed by the dependants of the deceased arising out of an application under Section 16(1) read with Section 13(1A) of the said Act against the order of the Taxing Officer following the decision in Sumitradevi's case and holding that the court fee is payable as required by Article 3 of Schedule I of the Court Fees Act is challenged, and after noticing the conflict of views in the aforestated two decisions of this Court rendered by the Coordinate Benches, the reference in question is placed before this Court for decision.

6. The question, which we have to consider, is whether in an appeal under Section 23 of the Claims Tribunal Act, arising out of an application under Section 16(1) read with Section 13(1A) of the Claims Tribunal Act, the court fee payable is as required by Article 13 under Schedule II or Article 3 under Schedule I of the Court Fees Act. In order to consider this question, we would like to first see the provision of Section 16 of the Claims Tribunal Act dealing with the application to the Claims Tribunal and it is reproduced below :

'16. Application to Claims Tribunal. - (1) A person seeking any relief in respect of the matters referred to in subsection (1) or subsection (1A) of section 13 may make an application to the Claims Tribunal.

(2) Every application under subsection (1) shall be in such form and be accompanied by such documents or other evidence and by such fee in respect of the filing of such application and by such other fees for the service or execution of processes as may be prescribed:

Provided that no such fee shall be payable in respect of an application under sub-clause (ii) of clause (a) of subsection (1) or, as the case may be, subsection (1A) of section 13.'

In terms of the aforesaid proviso, if the application is under sub-clause (ii) of clause (a) of subsection (1) or under subsection (1A) of Section 13 of the Claims Tribunal Act, then the court fee is not payable.

7. Section 13 of the Claims Tribunal Act also becomes relevant in view of the provision of Section 16 of the said Act, reproduced above, and the same dealing with the jurisdiction, powers and authority of Claims Tribunal, runs as under :

'13. Jurisdiction, powers and authority of Claims Tribunal. -

(1) The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority, as were exercisable immediately before that day by any civil Court or a Claims Commissioner appointed under the provisions of the Railways Act, -

(a) relating to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for -

(i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway;

(ii) compensation payable under section 82A of the Railways Act or the rules made thereunder; and

(b) in respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.

(1-A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of section 124A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any civil Court in respect of claims for compensation now payable by the railway administration under section 124A of the said Act or the rules made thereunder.

(2) The provisions of the Railways Act, 1989 (24 of 1989) and the rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act.

Sub-section (1A) of Section 13, reproduced above, was introduced by Act 28 of 1994 with effect from 1-8-1994 and corresponding provision of Section 82A referred to in clause (a)(ii) of Section 13 of the Railways Act, 1989 ('the Railways Act') was substituted. The provision of subsection (1A) of Section 13 of the Claims Tribunal Act confers the jurisdiction upon the Claims Tribunal to decide the application for compensation under Section 124A of the Railways Act.

8. Section 124A of the Railways Act, dealing with the compensation on account of untoward incidents, was inserted by Act 28 of 1994 with effect from 181994, and it is reproduced below :

'124-A. Compensation on account of untoward incidents. - When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:

Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to -

(a) suicide or attempted suicide by him;

(b) self-inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

Explanation. - For the purposes of this section, 'passenger' includes -

(i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.'

The provision makes a passenger who has been injured or the dependant of a passenger who has been killed in a railway untoward incident entitled to recover damages in respect of it from the railway administration, except in the cases covered by the proviso below it.

9. Rule 6 of the Railway Claims Tribunal (Procedure) Rules, 1989 ('the Claims Tribunal Rules') deals with the application fee for cases other than compensation for death or injury to the passengers, and sub-rule (1) therein being relevant, is reproduced below :

'6. Application fee for cases other than compensation for death or injury to passengers. – (1) Every application made under subsection (1) of section 16 for seeking relief in respect of matters other than claim of compensation for death or injury is to passengers shall be accompanied by fee as specified in Schedule II.'

In terms of the aforesaid Rule, every application made under sub-rule (1) of Rule 16 for seeking relief in respect of the matters other than claim of compensation for death or injury is to the passengers, is required to be accompanied by fee as specified in Schedule II.

10. In the decision of this Court in the case of Betel Stores by Proprietor Krishna Bonde v. State of Maharashtra, reported in 1991 (1) Mh.L.J. 823, the case was of the claim for compensation for the loss of or damage to the goods arising out of the commercial transaction and pertained to the jurisdiction of the Claims Tribunal under Section 13(1)(a) of the Claims Tribunal Act. In an appeal preferred before this Court under Section 23 of the said Act challenging the order passed by the Tribunal, a distinction is made between the award and the decree. It is held that the order of the Tribunal under Section 16(1) of the said Act will be an award within the meaning of the term 'Award' in Article 3 of Schedule I of the Court Fees Act and accordingly the court fee would be payable on the amount or value of the award sought to be set aside or modified according to the scale prescribed under Article 1.

11. In both the decisions of the Coordinate Benches in Sumitradevi and Sisupalan's cases, the decision of the Coordinate Bench in the case of Betel Stores is considered. In Sumitradevi's case, it is held that the decision in the case of Betel Stores fully covers the controversy and in terms of the said decision, the court fee is required to be paid under Article 3 of Schedule I of the Court Fees Act in an appeal under Section 23 of the Claims Tribunal Act arising out of an application under Section 16(1) read with Section 13(1A) of the said Act. In Sisupalan's case, it is held that the decision in Betel Stores is distinguishable on the ground that it was not a claim under Section 13(1A) of the Claims Tribunal Act and, therefore, an exemption in terms of the proviso below subsection (2) of Section 16 of the said Act was not available. In the referal order, there is no separate opinion expressed, but only the conflict in views is referred for consideration by the Division Bench.

12. In our view, the object of proviso below subsection (2) of Section 16 read with Rule 6(1) of the Claims Tribunal Rules is to provide cheaper and expeditious remedy to those who suffered personal injury or have lost their dear ones in a railway untoward incident covered by Section 13(1A) of the Claims Tribunal Act read with Section 124A of the Railways Act, irrespective of the fact whether or not there has been any wrongful act, neglect or default on the part of railway administration. Such a claim can be termed as 'no fault liability'. It is a beneficial legislation introduced by way of an exception and, therefore, its operation extends to a right of appeal before the High Court under Section 23 of the Claims Tribunal Act which can be treated as continuation of the proceedings before the Tribunal. The test is whether the claim is for 'no fault liability' and it does not matter whether it is before the Tribunal or in appeal before the High Court.

13. The decision of this Court in Sumitradevi's case, though refers only to Rule 6(1) of the Claims Tribunal Rules, there is complete non-application of mind to it. The decision completely ignores the object and purpose of the exception carved out under the proviso below sub-section (2) of Section 16 of the Claims Tribunal Act to exempt the payment of court fee in respect of the claim for compensation for the personal injury or the death of dear ones caused as a result of 'untoward incident' while travelling in railway, considered to be a 'no fault liability'. The referal order rightly takes into consideration the decision of the Apex Court in the case of Diwan Brothers v. Central Bank of India, Bombay and others, reported in AIR 1976 SC 1503, considering the well-settled legal position that in case of a fiscal statute, the provision must be strictly interpreted, giving every benefit of doubt to the subject and lightening as far as possible the burden of court fees on the litigant. Where the adjudication given by a Tribunal could fall within the two provisions of the Court Fees Act, one of which was onerous for the litigant and the other more liberal, the Court will apply that provision which was beneficial to the litigant. The decision of the Apex Court refers to its earlier decision in the case of State of Maharashtra v. Mishrilal Tarachand Lodha and others, reported in AIR 1964 SC 457, which interpreted some of the provisions of the Bombay Court Fees Act, observing as under :

'The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject-litigant.' Thus, the decision of the Apex Court supports the view which we have taken.

14. In para 9A of the decision in Sumitradevi's case, it is held that the application under Section 16 of the Claims Tribunal Act is capable of being treated as a suit and the purpose of filing such application or a memorandum of appeal should be to set aside a decree or order having force of decree. In Sisupalan's case, this Court has not touched the aspect as to whether the decision of the Claims Tribunal is an award or having a force of decree, which was considered by a Coordinate Bench in Betel Stores' case.

15. In Betel Stores' case, it is held that it matters little whether the court fee is payable either under Article 1 of Article 3 of Schedule I of the Bombay Court Feels Act, the court fee payable under both the Articles being the same. However, in clear terms, the Court has held that the order of the Tribunal under Section 16(1) of the Act will be an award within the meaning of the term 'Award' in Article 3 of Schedule I and the court fee payable on the Memorandum of Appeal under Section 23 of the Railways Act would, therefore, be governed by the provision of Article 3 of Schedule I of the Bombay Court Fees Act.

16. In Betel Stores' case, the appeal before this Court under Section 23 of the Claims Tribunal Act was not arising out of an application under Section 16(1) read with Section 13(1A) of the said Act, and Section 124A of the Railways Act dealing with the personal injury or the death of the passenger caused in an 'untoward incident'. The exemption provided below subsection (2) of Section 16 of the Claims Tribunal Act was not available. As a matter of fact, the decision was rendered in the year 1991, whereas the provision of Section 13(1A) and Section 124A was introduced in the year 1994 and the Court had, therefore, no occasion to deal with the case of exemption from the payment of court fee.

17. Once it is held that for a claim under Section 13(1A) of the Claims Tribunal Act read with Section 124A of the Railways Act, there is a total exemption from payment of court fee under the proviso to subsection (2) of Section 16 of the Claims Tribunal Act and that such exemption also extends to an appeal under Section 23 of the Claims Tribunal Act before the High Court, the question of payment of court fee even as required by Article 13 of Schedule II of the Court Fees Act, also does not arise. However, in the decision in Sisupalan's case, this Court has proceeded on the basis of the decision of this Court in Betel Stores' case holding that the decision of the Tribunal is an award.

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This Court, therefore, held that the court fee payable is as required by Article 13 of Schedule II of the Court Fees Act on the Memorandum of Appeal when the appeal is not from a decree or an order having the force of a decree and presented to the High Court. 18. For the reasons stated above, we answer the reference as under : (1) The decision of this Court in the case of Betel Stores by Proprietor Krishna Bonde v. State of Maharashtra, reported in 1991 (1) Mh.L.J. 823, does not apply to a claim under Section 13(1A) of the Railway Claims Tribunal Act, 1987 read with Section 124A of the Railways Act, 1989. (2) The decision of this Court in Sumitradevi Mahipal Kureel v. State of Maharashtra and others, reported in 2005(4) Mh.L.J. 133, does not lay down a correct position of law and the same is, therefore, overruled. (3) The decision of this Court in Sisupalan K. Vallikalayil and another v. Union of India, reported in 2005(4) Mh.L.J. 133, is confirmed, holding that the court fee payable is as required by Article 13 of Schedule II of the Maharashtra Court Fees Act, 1959. (4) Consequently, the order of the Taxing Officer and the Deputy Registrar, High Court, Bench at Nagpur, passed on 582016 in First Appeal Stamp No.6175 of 2016, is hereby quashed and set aside. (5) It is held that the court fee payable in an appeal under Section 23 of the Railway Claims Tribunal Act, 1987 before the High Court, arising out of an application under Section 16(1) read with Section 13(1A) of the said Act, shall be governed by the provision of Article 13 of Schedule II of the Maharashtra Court Fees Act, 1959 on the Memorandum of Appeal when the appeal is not from a decree or an order having the force of decree and presented to the High Court. 19. The matter be accordingly placed before the learned Single Judge for decision on merits.
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