HANDLING OF APPEAL CASESJ.N. VatsChief ManagerMOTOR TP Dept. , HO

Appeal is neither defined in the CPC nor in the M. V. Act, 1988 .

In its natural and ordinary meaning, an appeal is a remedy by which a cause determined by an inferior forum is subjected before a superior forum for the purpose of testing the correctness of the decision given by the inferior forum. ( SC in Bolin Chetia vs. Jogadish Bhuyan & Ors.)

Part VII , Sections 96-112 & Orders XLI-XLV of CPC deals with Appeal.

Right of appeal is not inherent, it arises with the institution of a suit.

Right of appeal is statutory and substantive right.

A claim petition for compensation in regard to a motor accident (filed by the injured or in case of death, by the dependant family members) before the Motor Accident Claims Tribunal constituted under section 165 of the Act is neither a suit nor an adversarial lis in the traditional sense. It is a proceedings in terms of and regulated by the provisions of Chapter XII of the Act which is a complete Code in itself.

THOUGHT PROVOKING

RELEVANT SECTION OF THE M.V.ACT , 1988173. 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 theamount in dispute in the appeal is less than ten thousand rupees.

IMPORTANCE OF PROPER HANDLING OF APPEALThe effect of the decision on other cases:High Court Judgment has binding effect on the lower courts within its territorial jurisdiction.High Court Judgment has persuasive value for other High Courts.The effect on the companys books of accountThe time limit for satisfaction of MACT Award is only 30 days whereas the limitation period of filing appeal is 90 days.

PERSON AGGRIEVED - WHO FILES APPEALAppeals filed by the insurance company.Appeals filed by the claimants.Appeals filed by owner.Appeals filed by driver.

UNITED INDIA INSURANCE CO. LTD. VS. SHILA DATTA & ORS.Where an insurer is impleaded by the claimants as a party, it can contest the claim on all grounds, as there are no restrictions or limitations in regard to contest. But where an insurer is not impleaded by the claimant as a party, but is only issued a statutory notice under section 149 (2) of the Act by the Tribunal requiring it to meet the liability, it is entitled to be made a party to deny the liability on the grounds mentioned in section149(2).

When insurer is the person to pay the compensation, any interpretation to say that it is not a person aggrieved by the quantum of compensation determined, would be absurd and anomalous.

where the insurer alone was the appellant before the High Court and where the insurer was only a noticee under section 149(2) and not an impleaded respondent in the claim petition), to be placed before the Honble Chief Justice for constituting a larger bench.

CROSS-OBJECTION-ORDER 22 RULE 41Abhilasha Bai vs. Arvind Kumar , 2002(3)TAC94 The cross-objection is an appeal within the meaning of Section 173 of the Act.It survives for consideration even if the appeal filed by the appellant is withdrawn or dismissed for any reason and in the absence of mandatory deposit , the cross-objections are not maintainable.

WHETHER AN ORDER PASSED UNDER SECTION 140 OF THE MOTOR VEHICLES ACT, 1988 IS AN APPEALABLE ONE Smt. Yallwwa and Ors. Vs. National Insurance Co. Ltd. and Anr. , Civil Appeal No. 2674 of 2007 :It may be noted that Chapter X of the Act provides for no forum for enforcement of the right under Section 140. The only forum available is in Chapter XII. The right under Section 140 can only be enforced under Section 168 as an award. An appeal, therefore, lies under Section 173 against such an award seeking to enforce the right under Section 140.

ANY QUESTION OF LAW CAN BE CHALLENGED AT APPELLATE STAGE EVEN FOR THE FIRST TIME The facts of a particular case and law (or legal propositions) are altogether different and as such must not be confused. Rules of pleadings contained in the Code of Civil Procedure do not cover question of law. If a fact stands admitted, the same in terms of section 56 of Evidence Act need not to be proved. The facts not admitted are required to be proved by adducing oral as well as documentary evidence . The courts / Tribunals/High Courts/Supreme Court can not shut their eyes to the legal proposition. Any illegality, if committed, the higher courts would not allow its perpetration and the same can be looked into and the sufferer would get the desired remedy. Therefore any question of law can be raised at appellate stage.

ADDITIONAL EVIDENCE, ORAL OR DOCUMENTARY AT APPELLATE STAGE -

NOT ALLOWED AS PER ORDER 41 RULE 27 OF CPC. HOWEVER UNDER THREE CIRCUMSTANCES IT IS ALLOWED

Tribunal refused to admit evidence which ought to have been admitted.

In spite of exercise of due diligence, the evidence not within the knowledge or could be produced before the Tribunal.

Appellate Court requires any document to be produced or any witness to be examined to enable to pronounce the judgment.

SECTION 107, CPC. POWERS OF APPELLATE COURT (1) Subject to such conditions and limitations as may be prescribed, anAppellate Court shall have power

(a) to determine a case finally;(b) to remand a case;(c) to frame issues and refer them for trial;(d) to take additional evidence or to require such evidence to be taken.

SECTION 148A CPC-RIGHT TO LODGE A CAVEATWhere an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a Court, any person claiming a right to appear before the Court on the hearing of such application may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post, acknowledgement due, on the person by whom the application has been or is expected to be, made, under sub-section (1).

(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or proceeding, the Court, shall serve a notice of the application on the caveator.

(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator at the caveator's expense, with a copy of the application made by him and also with copies of any paper or document which has been, or may be, filed by him in support of the application.

(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after the expiry of ninety days from the date on which it was lodged unless the application referred to in sub-section (1) has been made before the expiry of the said period.]

ARTICLE 136 - SPECIAL LEAVE TO APPEAL BY THE SUPREME COURT. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.

A Special Leave Petition is not a statutory right of appeal vested in the M.V. Act , 1988 , so , we should challenge only those cases where a substantial justice has not been done.

Gurgaon Gramin Bank vs. Smt. Khazani & Anr. , Special Leave Petition (C) No. 8875/2010 : On more than one occasion, this court has reminded the Central Government, State Governments and other instrumentalities as well as to the various banking institutions to take earnest efforts to resolve the disputes at their end. At times, some give and take attitude should be adopted or both will sink. Unless, serious questions of law of general importance arise for consideration or a question which affects large number of persons or the stakes are very high, courts jurisdiction cannot be invoked for resolution of small and trivial matters. We are really disturbed by the manner in which those types of matters are being brought to courts even at the level of Supreme Court of India and this case falls in that category.

New India Assurance Co. Ltd. Vs. Gopali & Ors. , 2012 STPL (Web) 388 SC : The Apex Court in the SLP preferred by New India has not only increased the compensation awardedby the High Court from Rs. 5,00,000/- to Rs. 10,63,030/- but also imposed cost of Rs. 5,00,000/- on New India.

ARTICLE 142 (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

Teri Oat Estates (P) Ltd. v. U.T. Chandigarh (2004) 2 SCC 130, "sympathy or sentiment by itself cannot be a ground for passing an order in relation to where the appellants miserably fail to establish a legal right. Despite an extraordinary constituted jurisdiction contained in Article 142 of the Constitution, the Supreme Court ordinarily would not pass an order which would be in contravention of a statutory provision."

LIMITATION ACT, 19635. Extension of prescribed period in certain cases :Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be, admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.

Har Swaroop Gautam vs. Oriental Insurance Co. Ltd. and Ors. (Del HC)- "Section 5 of the Limitation Act is a salutary principle engrafted in the statute to rescue those who are not able to take timely legal steps but such protection is meant for only those who are genuine, honest and diligent in pursuing legal remedies and not for those who are negligent, reckless and try to misuse the said provision as a tool for delaying available legal remedies due to malafide reasons.

The Divisional Manager, The National Insurance Company Limited vs. Suresh Subray Shet and Ors. , AIR2009Kant3 : Motor Vehicles Act, 1988 - Section 173 - Appeals - Sub-section (1) Section 173 and Sub-section (2) of Section 173 - Interpretation of - Held, According to Sub-section (2) of Sub-section 173 of the M V Act, no appeal shall lie against any award of a Claims Tribunal, if the amount in dispute is less than Rs. 10,000/-. But, no alternative remedy is provided in the MV Act. - Further Held, It is implicit from language employed in Section 173 of the MV Act that when an aggrieved person admits the liability, he can not question the award if the amount in dispute is less than Rs. 10,000/-. In other words, prudent interpretation of Sub-section (2) Section 173 of the MV Act would be to mean that only when the quantum of compensation is questioned, the liability being admitted, there would be a bar for filing an appeal.

Where the statutory right of appeal is not available, we may file a writ of certiorari before the High Court under Article 226.

UNITED INDIA INSURANCE CO. LTD. Vs. RAJENDRA SINGH & ORS, Special Leave Petition (civil) 8479 of 1999 : Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.

IMPORTANT CASE STUDIES

NICL VS. RAVI BALA SHARMA & ORS.The Ld. MACT , Meerut has awarded Rs. 48,03,012 /- along with 6.5 % interest from the date of petition.The Honble Allahabad High Court dismissed our appeal with the observation that the Tribunal did not commit any illegality in awarding Pay & Recovery rights .The Honble Supreme Court partly allowed our appeal and reduced the quantum of compensation to Rs. 27,60,084 /- as admitted by us.

NICL VS. JANAK RAJMACT Jammu awarded Rs. 23,02,500 /- along with 7.5 % interest on 24.07.2009.

NICL filed an appeal in the J & K High Court and in the meantime it was negotiated with the claimants counsel to settle for Rs. 10,00,000 /- as lump-sum, which they agreed in view of the ground of no loss of future income as he continues with the job.

NIC VS. FATIMA BEGUMMACT Srinagar awarded Rs. 39,89,400 /- along with 6 % interest from the date of petition.We filed appeal on the ground of quantum as and in the meantime negotiated to settle for Rs. 30,00,000 /- in lump sum.

SUMMARYAppeal should not be filed only for the sake of filing.

Efforts should be made for winning .

Appeal is not a substitute for the weaknesses committed by us at the Trial Stage.

Appeal may boomerang.

Appeal is not against a person but against a wrong decision without taking into consideration our justified submissions.

The result of appeal should look like